# Harris by and Through Ramseyer v. Blodgett

> District Court, W.D. Washington · May 17, 1994 · 853 F. Supp. 1239

URL: https://www.frixlaw.com/law-library/cases/1517840

## Case

- **Full name:** Benjamin J. HARRIS, III, by and Through Judith H. RAMSEYER, Guardian Ad Litem, Petitioner, v. James BLODGETT, Superintendent Washington State Penitentiary, Respondent
- **Court:** District Court, W.D. Washington
- **Decided:** May 17, 1994
- **Citations:** 853 F. Supp. 1239; 1994 WL 195371
- **Precedential status:** Published
- **Opinion:** Opinion by Bryan
- **Judges:** Bryan
- **Cited by:** 45 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1517840

## Opinion text

AMENDED
*
DECISION, INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW; and ORDER GRANTING WRIT OF HABEAS CORPUS
BRYAN, District Judge.
INDEX TO DECISION
Introduction. 1247
Factual and Procedural Background. 1248
Issues Presented . 1251
Standard of Review. 1252
Discussion of Issues. 1253
ISSUE
1
1. Whether Harris received effective assistance of counsel before trial, during trial, and on post conviction proceedings, including appeal 1253 The Standard for Effective Assistance of Counsel. 1253
1. Deficiency of Performance. 1254
2. Prejudice to Defense. 1254
Ground A. Counsel did not conduct a thorough investigation of facts surrounding the charge and possible defenses. 1255
Counsel failed to adequately prepare for trial. 1255 Ground B.
Counsel failed to adequately consult with his client and to inform him on important issues and decisions regarding his defense. 1258 Ground C.
Counsel failed to investigate Harris’s mental and emotional status, including mental capacity and incompetence to stand trial. 1259 Ground D.
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Ground E. Counsel failed to challenge admissibility of Harris’s Statements . 1261
Ground F. Counsel failed to properly protect Harris’s rights when the October 22, 1984 statement was made and admitted at trial, and during Harris’s testimony during the guilt phase ... 1261
Ground G. Counsel should have attempted to mitigate with prosecutor before the prosecutor decided to seek the death penalty 1264
Ground H. Counsel failed to conduct proper voir dire. 1264
Ground I. Counsel failed to object to inadmissible evidence. 1265
Ground J. Counsel failed to develop a viable defense strategy. 1265
Ground K. Counsel failed to propose, or except to, jury instructions .. 1266
Ground L. Counsel failed to object to improper comments by prosecutor during closing arguments in penalty phase. 1267
Ground M. Counsel’s closing argument in the guilt phase was deficient 1267
Ground N. Counsel failed to present available evidence during penalty phase. 1268
Ground O. Counsel failed to raise or preserve meritorious issues in appellate proceedings. 1271
Ground P. Counsel failed to advise Harris of a conflict of interest.... 1271
ISSUE NO. 2. Whether the admission of prior convictions in 1969 for manslaughter and assault during the penalty phase violated petitioner’s right to due process. 1274
ISSUE NO. 3. Whether Washington’s capital punishment statute is unconstitutional because it allows consideration of an unconstitutionally obtained prior conviction during the penalty phase. 1277
ISSUE NO. 4. Whether petitioner’s incompetency prevented a fair trial. 1278
ISSUE NO. 5. Whether the state failed to disclose exculpatory evidence. 1280
ISSUE NO. 6. Whether Harris’s constitutional rights were violated when his pretrial statement of October 22,1984 was made and admitted at trial 1281
ISSUE NO. 6a. Whether Harris properly waived his Fifth Amendment right to remain silent. 1282
ISSUE NO. 7. Whether Harris’s Fifth Amendment right against self incrimination was violated by the admission, at trial, of statements made by Harris to police during the investigation. 1283
ISSUE NO. 8. Whether the prosecutor’s decision to seek the death penalty denied Hams due process, equal protection, and was cruel and unusual punishment. 1284
ISSUE NO. 9. Whether, during closing arguments in the penalty phase, the prosecutor committed error by attempting to minimize the jury’s sense of responsibility for punishment. 1285
ISSUE NO. 11. Whether the Washington State Supreme Court performed an inadequate proportionality review, thereby violating petitioner’s due process rights. 1286
ISSUE NO. 16. Whether there is any constitutional infirmity resulting from the disparity of Harris’s death sentence and his co-defendant’s acquittal . 1291
ISSUE NO. 17. Whether the inconsistent verdicts are unconstitutional. 1292
ISSUE NO. 18. Whether Jury Instructions No. 2 and 5, given during the penalty phase, erroneously encouraged the jury to reach a unanimous verdict on all issues. 1292
ISSUE NO. 19. Whether death by hanging is unconstitutional as cruel and unusual punishment. 1293
ISSUE NO. 20. Whether the requirement that petitioner choose between methods of execution is unconstitutional as cruel and unusual punishment 1293
CONCLUSION 1293
LEGEND
I. STATE COURT RECORD
Yol.. “Volume”
CP. .“Clerk’s Papers”
VRP.. ‘Verbatim Report of Proceedings”
Plaintiffs Ex. ..“State Trial Exhibits”
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II. U.S. DISTRICT COURT RECORD
Evid.TR..“Testimony of Murray Anderson”
Parkhurst Evid.TR..“Testimony of Sgt. Parkhurst”
Stip. Facts No...“Stipulation of Facts, Appendix A.”
Cease Dep. ..“Deposition of Richard Cease”
Haist Dep... “Deposition of Thomas Haist”
THIS MATTER comes before the court on Benjamin A. Harris’s Petition for Writ of
Habeas Corpus.
The court has considered all pleadings filed in support of and in response to the petition, the evidence adduced at an evidentiary hearing held on Monday, December 20, 1993, including the depositions of Thomas Haist, Richard Cease, John Pet-rich, M.D. and Allen W. Traywick, Ph.D. The court heard oral arguments of counsel at that hearing and at prior hearings on motions. The court also considered the state court record filed herein, Volumes 1 to 12, trial exhibits, and the U.S. District Court file. The parties entered into a Stipulation of Facts with accompanying documents, filed on October 25, 1993, which is fully incorporated herein by this reference. The Stipulation is attached hereto as Appendix A.
INTRODUCTION
This is not a search for legal technicalities. It is not a search for justification to take, or save, a life. It is not a case about the legal, moral, or social implications of the death penalty. It is not a review of a state case for simple legal error. Neither the question of Harris’s guilt nor the advisability of a death sentence will be reexamined here.
This is a review of a state proceeding to determine if federal constitutional requirements were met, and to determine the affect of any constitutional violations on the state proceedings. It is appropriate, under the law, to undertake this procedural review for any person who has lost freedom as a result of a criminal conviction in any court in the United States. Even if petitioner is guilty in fact, and even if he should be put to death, American law says that such a conviction and sentence will not stand unless, and until, the conviction and sentence are determined to be in accord with the U.S. Constitution.
The writ of
habeas corpus
was first written into English law in 1679, although it existed informally before that time.
See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d,
Sec. 4261 at 271 (citations omitted). The writ may be sought in any situation where an individual challenges another’s authority to restrain his or her liberty. Commonly referred to as “The Great Writ,” it has been declared “both the symbol and guardian of individual liberty.”
Peyton v. Rowe,
391 U.S. 54, 58 , 88 S.Ct. 1549, 1551 , 20 L.Ed.2d 426 (1968) (citations omitted).
Modern federal procedure for a writ of
habeas corpus
is codified in 28 U.S.C. Sec. 2241 ,
et seq.
As a result of its development in American law, the writ has three primary characteristics: First, it is largely used to provide post-conviction relief. Second, it requires
“prompt
adjudication of the validity of the challenged restraint.”
Peyton,
391 U.S. at 59 , 88 S.Ct. at 1552 (citations omitted). Third, the federal courts are authorized to look behind the state court record, and may conduct a fact finding hearing to determine the merits of alleged constitutional violations.
Id.
(citations omitted).
Legal scholars have long debated the merits of a procedure whereby a federal court can examine into a state court system’s adjudication of an individual’s crimes and sentence:
Support for broad federal habeas review stems from our devotion to individual justice, the symbolic value of the writ as the hallmark of democracy under law, the safety-valve effect of providing an additional forum for testing constitutional claims as well as a belief that the federal judiciary is often in the best position to further these interests. Arguments against broad application of the writ include its tendency to foster inefficient, repetitive judicial consideration of the same issue. The writ’s interference with finality in the criminal process together with the lack of comity inherent in federal district court review of the
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decisions of a state supreme court also weigh against widespread application of the writ.
Allen, Schachtman & Wilson, Federal Habe-as Corpus and Its Reform: An Empirical Analysis,
13 Rutgers L.J. 675 , 678 (1982). This court does not intend to continue the debate, or to comment on the worthiness of either position.
When a person’s life may be taken, an exacting constitutional scrutiny is required. The U.S. Supreme Court has demanded that the review “aspire to a heightened standard of reliability.... This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.”
Ford v. Wainwright,
477 U.S. 399, 411 , 106 S.Ct. 2595, 2602 , 91 L.Ed.2d 335 (1986).
Constitutional provisions at issue in this case include the accused’s right to have the effective assistance of counsel for his defense (Sixth Amendment); the accused’s right to refuse to be a witness against himself (Fifth Amendment); the accused’s right to a fair trial and to due process of law (Fifth and Fourteenth Amendment); the accused’s right to equal protection of the laws (Fourteenth Amendment); and the accused’s right to be free from the infliction of cruel and unusual punishment (Eighth Amendment).
FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Court History
This statement summarizes the historical facts and events in this case to the present. It is not intended to be an exhaustive statement of all significant facts but sets the stage for more detailed fact-finding and discussion.
In the early morning hours of June 14, 1984, the body of Jimmie Lee Turner was found outside 2134 South Hosmer, Tacoma, Pierce County, Washington. Vol. 3, CP 978. An information filed on July 27,1984 charged Gregory Lee Bonds with aggravated murder in the first degree. Vol. 3, CP 979. Benjamin Harris was arrested as a material witness on July 30, 1984. Vol. 3, CP 984, 989. He was released on his personal recognizance after administrative booking and was ordered to make daily contact with Tacoma Police Officers Antonson or Parkhurst. Vol. 3, CP 989. Harris was taken to the Calico Cat Motel by Tacoma Police officers for security. Vol. 3, RP 30. Harris took two polygraph examinations given by agents of the Tacoma Police Department, on August 7, 1984 and on August 8,1984. Vol. 2, VRP 31. Harris was arrested immediately following the second polygraph examination. Vol. 1, VRP 32.
On August 10, 1984 Benjamin Harris appeared in court and an amended information was filed, charging Harris and Bonds with aggravated murder in the first degree. Vol 1, CP 1013-14. Counsel was appointed to represent Harris on August 13,1984. Vol. 3, CP 1018. On August 16, 1984, the Prosecuting Attorney filed a Notice of Special Sentencing Proceeding to Determine Whether the Death Penalty Should be Imposed on Harris. Vol. 3, CP 1019. The Prosecuting Attorney noted in this document that “Presentation of mitigating circumstances is the responsibility of the defendant.
See State v. Bartholomew,
101 Wash.2d 631, 643 , 683 P.2d 1079 (1984). No mitigating circumstances have been brought to the attention of this office.” Vol. 3, CP 1020. A duplicate, but separate, notice was also filed for Bonds. Trial for both defendants was set for September 24, 1984.
On August 28, 1984, counsel for Bonds filed a motion for severance. Vol. 3, CP 1042-49. Harris joined in that motion. Vol. 3, CP 1058-60. At the same time, the state filed a motion to set aside a trial continuance that had been obtained by counsel for Bonds. (The trial date for Bonds had been continued to November 12, 1984.) On September 26, 1984, the trial court denied the state’s motion to set aside Bonds’ continuance and granted the defendants’ motion for severance. Vol. 3, CP 1125-27. Harris’s trial was continued to October 15, 1984. Vol. 3, CP 1083.
A hearing was held on September 20,1984 pursuant to Washington Superior Court Criminal Rule 3.5 (commonly referred to as a “CrR 3.5 hearing”). The hearing was to determine the admissibility of oral statements made by Harris before his arrest, and
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statements in letters he sent to Sgt. Park-hurst of the Tacoma Police Department after his arrest. The court orally ruled that all statements, oral and written, which were the subject of the hearing, were voluntary and admissible at trial. Vol. 3, CP 1088. Formal findings of fact and conclusions of law were entered on October 18,1984, four days before trial. Vol. 3, CP 1169-73. Therein, trial court formally ruled that all statements made by Harris were freely and voluntarily made, that when the investigation focused on Harris, he was properly advised of his
Miranda
rights, and that all letters sent by Harris to Sgt. Parkhurst before and after- his arrest were voluntary and unsolicited by Parkhurst. The court further ruled that all statements and letters were admissible at trial. Vol. 3, CP 1173.
On September 28, 1984, Harris’s counsel filed a motion for a mental examination of Harris, with a supporting affidavit and memorandum of authorities. U.S.D.C., Ex. 1; Vol. 3, CP 1133-41. Counsel’s affidavit de-tañed extensive difficulties in communicating with Harris, and significant concern regarding his ability to assist in his defense. The motion was granted. Vol. 3, CP 1145-46. The court appointed qualified members of the staff of Western State Hospital to examine and diagnose Harris’s mental condition and to report to the court as specified in RCW 10.77.060. The report was to contain an opinion as to Harris’s capacity to understand the proceedings against him and to assist in his defense, whether he perceived the moral qualities of the acts with which he was charged, and whether further examination and testing was required.
Id.
This was not an independent defense examination. Harris was transferred to Western State Hospital for the examination.
On October 8, 1984, Harris was returned to the Pierce County Jaü and the results of examining team at Western State Hospital were disclosed. Vol. 3, CP 1158-59. A letter opinion was filed in the trial record and stated that the defendant was competent to stand trial, was able to assist in his defense, was aware of the charges against him, was able to perceive the nature and quality of his act at the time of the alleged offense, and did not require future testing or evaluation. Vol. 3, CP 1159. The opinion did not address diminished capacity, general mental and emotional status, nor other matters that could have assisted counsel in defending a capital case. Counsel learned after the guilt phase but before the penalty phase that some of the testing done was not scored and was not included in the opinion. Vol. 3, CP 1196-98.
On October 11, 1984, Harris’s counsel filed a motion for continuance of the trial and for examination of the defendant by his own expert. Vol. 3, CP 1162-63. On October 17, 1984, an order was entered granting a trial continuance from October 15, 1984, to October 22, 1984. In the order, the court found that Harris’s counsel was engaged in another ongoing criminal trial and that the defendant desired to be evaluated by an expert of his own choosing. Vol. 3, CP 1167-68. The court record does not reflect any further order regarding evaluation of Harris by his own expert. The issue of funding was not raised by defense counsel. Harris was not examined by the independent expert before trial.
On the morning of October 22, 1984, the day set for trial, Harris, at the suggestion and recommendation of counsel, met with prosecuting attorneys and police officers. Evid.TR 20-21. Harris was accompanied by his counsel, and gave a recorded, detaüed statement of his version of the events, including an admission that he fired one of the two fatal shots at Turner. Vol. 1, VRP 69-92; Plaintiffs Trial Ex. 14. Trial began in the afternoon of October 22, 1984 and continued to the morning of October 26, 1984. A verdict of guñty to the charge of aggravated murder in the first degree was entered by the jury in the afternoon of the same day. Vol. 3, CP 1178. The penalty phase was scheduled to begin on the morning of October 31, 1984.
The penalty phase was held on October 31, 1984, lasting from 9:40 a.m. to 11:02 a.m. Vol. 3, CP 1195. The jury returned with its verdict, finding “no sufficient mitigating circumstances to merit leniency” in the afternoon of the same day. Vol. 3, CP 1190,1195. Sentencing was set for November 5, 1984.
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Harris filed a motion in arrest of judgment or, in the alternative, for a new trial on November 5, 1984. Vol. 3, CP 1196-98. Sentencing was continued to November 19, 1984. Vol. 3, CP 1199. The motion for a new trial focused on the fact that, because certain diagnostic data was not scored by the evaluators at Western State Hospital, Harris’s mental examination was incomplete. The defendant argued that this data may have contained relevant information on Harris’s competency to stand trial and on mitigating factors regarding his mental state when the crime was committed. Vol. 3, CP 1196-98. The- deposition of Dr. Kathleen Mayers was ordered and the hearing on the motion was set over to December 10, 1984. Vol. 4, CP 1507. An order was entered requiring the defendant to make an offer of proof regarding evidence of a mental disturbance before the December 10th hearing. The order also granted defendant’s request to authorize Dr. Allen W. Traywick and Dr. Mayers access to the Pierce County Jail for further testing and evaluation of Harris. Vol. 4, CP 1517-18.
On November 13, 1984, Bonds’ trial began, starting with pretrial motions. Vol. 4, CP 1533. On November 26, 1984, Harris testified for the state. The record does not reflect that any accommodations were offered to Harris in exchange for his testimony. The jury returned a verdict of not guilty on December 6, 1984. Vol. 4, CP 1564-65.
The hearing on Harris’s motion for a new trial was again continued to December 26, 1984, due to scheduling conflicts. Vol. 4, CP 1571-72. The hearing was then again set over to January 9, 1985, to allow preparation of the deposition transcript of Dr. Traywick. Vol. 4, CP 1576. After hearing, the motion was denied and formal Findings of Fact and Conclusions of Law were entered on January 21, 1985. Vol. 4, CP 1662-67. The court found that the defendant had the opportunity to obtain his own psychological expert to evaluate his mental condition before trial and failed to do so. The court further found that the testimony of Ray Meeks was the essentially the same in both the Harris and the Bonds trials, and the acquittal of Bonds had no relevance to the Harris case.
Id.
Judgment and Sentence of death was entered on January 14, 1985. Vol. 4, CP 1578-80. The trial judge, as required by RCW 10.95.120, completed and filed the “Report of the Trial Judge” on January 15, 1985. Vol. 4, CP 1648-60.
B. Appellate History
A Notice of Appeal to the Washington Supreme Court was filed on February 11, 1985. Vol. 4, CP 1670. Trial counsel was appointed for the appeal. Vol. 4, CP 1679. In a published opinion,
State v. Harris,
106 Wash.2d 784 , 725 P.2d 975 (1986), the Washington Supreme Court affirmed the conviction and the death sentence. The opinion included the mandatory death sentence review required by RCW 10.95.100. 106 Wash.2d at 789, 797-99 , 725 P.2d 975 . The first death warrant was entered on December 15,1986. Vol. 5, CP 1917. New counsel was appointed for Harris on February 23, 1987, Vol. 6, CP 2264. A petition for writ of
certiorari
was filed in the U.S. Supreme Court Vol. 6, CP 2267-2304 and was denied by that court on March 23,1987. Vol. 6, CP 2305.
Harris filed his first state personal restraint petition in the Washington Supreme Court on September 7, 1987, raising numerous issues. Vol. 7, CP 2332-2690. His petition was denied in
In re Harris,
111 Wash.2d 691 , 763 P.2d 823 (1988). Vol. 8, CP 3022-49. Harris filed a second state personal restraint petition on December 2, 1988, attacking the constitutional validity of his guilty plea to the 1969 manslaughter charge. On December 8, 1988, counsel for Harris filed a motion to stay further proceedings pending determination of competency and for appointment of a mental health professional to examine Harris. Vol. 8, CP 3069-76. The Washington Supreme Court issued an order on March 8, 1989,
inter alia,
denying the motion for stay, authorizing the appointment of a mental health professional, and denying the second personal restraint petition without prejudice. Vol. 8, CP 3089-90.
A second petition for writ of
certiorari
was filed in the U.S. Supreme Court and was denied on May 15, 1989. Vol. 8, CP 3098. Harris refiled his second state personal re
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straint petition [third petition in chronological order], raising the identical issues, on May 19, 1989. Vol. 11, CP 3996-4008. The Washington Supreme Court denied the petition with prejudice on May 10,1990. Vol. 11, CP 4024-25. Petitioner’s motion for reconsideration was denied by the court on June 7, 1990. Vol. 11, CP 4103-04.
On May 30,1989, a hearing was held in the trial court to set a date for execution, and to determine if Harris was competent to be executed. Vol. 9, VRP 3151-3233. Harris presented evidence and argument that he was not competent to be executed. At the conclusion of the hearing, the court found the defendant competent to be executed and an execution date was set for July 11, 1989. Vol. 9, VRP 3231-32. The death warrant was entered on May 30, 1989. Vol. 9, CP 3287. Notice of appeal to the Washington Supreme Court was filed on June 2, 1989. Vol. 9, CP 3286. On June 15, 1989, oral argument was heard by the trial court on Harris’s motion to vacate the order setting execution date. Vol. 9, CP 3234-83. The motion was denied at the conclusion of the hearing. Vol. 9, CP 3282.
Harris filed a motion for stay of execution pending appeal/personal restraint petition and petition for discretionary review on June 20,1989. Vol. 9, CP 3295-3374. On June 30, 1989, the Washington Supreme Court granted the petition for discretionary review and set the matter for oral argument on September 26, 1989. Vol. 9, CP 3439-41. Along with the appeal, counsel for Harris filed a third state personal restraint petition [fourth petition in chronological order] to the Washington Supreme Court on July 24,1989. Vol. 10, CP 3446-3521. This petition attacked the validity of the competency hearing held in the trial court oh May 30, 1989.. The Supreme Court denied the petition and appeal in a published opinion,
State v. Harris,
114 Wash.2d 419 , 789 P.2d 60 (1990). Vol. 10, CP 3953-92.
Harris filed a fourth state personal restraint petition [fifth petition in chronological order], raising an issue of improper jury instructions in the sentencing phase, pursuant to
Mak v. Blodgett,
970 F.2d 614 (9th Cir.1992). Vol. 12, CP 4105-35. In an unpublished order, the Washington Supreme Court denied that petition on March 16,1993, as an abuse of the writ. Vol. 12, CP 4180-84. On March 16, 1993, petitioner’s state remedies were thoroughly exhausted.
C. Federal Court History
On June 13, 1989, Harris filed a petition for writ of
habeas corpus,
a motion for stay of execution, and other administrative motions in United States District Court for the Western District of Washington. The matter was assigned to the undersigned judge. Oral argument on the motion for stay of execution was heard on June 22, 1989. The court orally granted the motion for stay. A written order of stay was entered on July 6,1989, delaying further federal proceedings until final resolution of the third state personal restraint petition/appeal pending before the Washington Supreme Court.
In July, 1990, the court was advised by Harris’s counsel that he was concerned that Harris could not understand, and assist with, the federal habeas corpus proceedings because of his mental condition. After consideration of memoranda from both parties on the issue of competency, the court granted petitioner’s motion for appointment of an expert and ordered an evidentiary hearing. The hearing was held on September 20,1990. Findings of Fact and Conclusions of Law were entered on November 21, 1990, determining that Harris was not competent to litigate his
habeas
petition without assistance. A Guardian ad Litem was appointed for Harris.
These proceedings were again stayed on August 24, 1992 to allow the Washington Supreme Court the opportunity to consider petitioner’s fourth state personal restraint petition. Proceedings in this court resumed following the final exhaustion of Harris’s state remedies by the decision of the Washington Supreme Court on March 16, 1993.
ISSUES PRESENTED
Harris’s petition for
habeas corpus
presents the following issues:
1. Whether Harris received effective assistance of counsel before trial, during trial,
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and on post conviction proceedings, including appeal.
2. Whether the admission of Harris’s 1969 convictions for manslaughter and assault during the penalty phase violated his constitutional right to due process.
3. Whether Washington’s capital punishment statute is unconstitutionally defective because it allows consideration of an unconstitutionally obtained prior conviction during the penalty phase.
4. Whether Harris’s incompetency prevented a fair trial.
5. Whether the state failed to disclose exculpatory evidence to defense counsel.
6. Whether Harris’s constitutional rights were violated when his pretrial statement of October 22, 1984 was made, and when it was admitted at trial.
6a. Whether Harris properly waived his Fifth Amendment protection against self incrimination during the guilt phase.
7. Whether Harris’s Fifth Amendment right against self incrimination was violated by the admission, during the guilt phase, of statements made by Harris to police during the investigation.
8. Whether the state’s decision to seek the death penalty denied Harris due process and equal protection, and constituted cruel and unusual punishment.
9. Whether, during closing arguments in the guilt phase, the prosecutor committed error by attempting to minimize the jury’s sense of responsibility for Harris’s punishment.
11. Whether the Washington Supreme Court performed an inadequate proportionality review, thereby violating Harris’s due process rights.
16. Whether there is any constitutional infirmity resulting from the disparity of Harris’s death sentence and his co-defendant’s acquittal.
17. Whether the inconsistent verdicts are unconstitutional.
18. Whether Jury Instructions No. 2 and 5, given during the penalty phase, erroneously encouraged the jury to reach a unanimous verdict on all issues.
19. Whether death by hanging is unconstitutional as cruel and unusual punishment.
20. Whether the requirement that Harris choose between methods of execution is unconstitutional as cruel and unusual punishment.
STANDARD OF REVIEW
General Standard for Federal Review of State Court Proceedings
Habeas corpus relief is available to “persons whom society has grievously wronged and for whom belated liberation is little enough compensation.”
Fay v. Noia,
372 U.S. 391, 441 , 83 S.Ct. 822, 850 , 9 L.Ed.2d 837 (1963). For petitioners, such as Harris, who are in custody pursuant to a state court judgment of conviction, a writ of habeas corpus may be granted by a federal court if the petitioner can show “he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. Sec. 2254 (a). The court is directed to “dispose of the matter as law and justice require.” 28 U.S.C. See. 2243.
A petitioner is entitled to habeas relief if unconstitutional trial error is found to have “had substantial and injurious effect or influence in determining the jury’s verdict ... and resulted in ‘actual prejudice’.”
Brecht v. Abrahamson,
— U.S.-, 113 S.Ct. 1710, 1712 , 123 L.Ed.2d 353, 373 (quoting
United States v. Lane,
474 U.S. 438, 449 , 106 S.Ct. 725, 732 , 88 L.Ed.2d 814 (1986)). Other unconstitutional errors are found “in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” “The existence of such defects — deprivation of the right to counsel, for example — requires automatic reversal because they infect the entire trial process.”
Brecht, Id.
at 367, 113 S.Ct. at 1717 (quoting
Arizona v. Fulminante,
499 U.S. 279 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)).
Before coming to federal court, the petitioner is required to exhaust all remedies available in the state courts by raising all issues which support his contention that he is in custody illegally. 28 U.S.C. Sec. 2254 (b)
*1253
and (c). Harris has exhausted his state remedies on all issues. In fact, this proceeding has been much delayed while he did so.
Findings of fact, made by either the state trial court or state appellate court after a full, fair, and adequate hearing, are presumed to be correct and are binding on the federal court. 28 U.S.C. Sec. 2254 (d).
Sumner v. Mata,
449 U.S. 539, 546 , 101 S.Ct. 764, 768-69 , 66 L.Ed.2d 722 (1981). Factual findings may be determined in federal court, or may be set aside in federal court, in certain circumstances enumerated in 28 U.S.C. Sec. 2254 (d). Several of those circumstances are applicable in this case. In pertinent part, the statute states as follows:
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the fact finding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concluded that such factual determination is not fairly supported by the record: ...
The burden falls on the petitioner to show by convincing evidence that any factual determinations made by the state court are erroneous. 28 U.S.C. Sec. 2254 .
The statutory presumption of correctness does not apply to purely legal questions or mixed questions of law and fact.
Chaney v. Lewis,
801 F.2d 1191, 1194 (9th Cir.1986) (citations omitted);
Sumner v. Mata,
455 U.S. 591, 597 , 102 S.Ct. 1303, 1306-07 , 71 L.Ed.2d 480 (1982) (and citations in n. 9). Legal questions and mixed questions of law and fact, including the determination of the legal and/or constitutional effect of factual findings, are entitled to a complete and independent
de novo
review.
Chaney v. Lewis,
801 F.2d at 1194-95 (and cases cited therein);
Sumner v. Mata,
455 U.S. at 597 , 102 S.Ct. at 1306-07 . “In deciding this question [mixed questions of law and fact], the federal court may give different weight to the facts as found by the state court and may reach a different conclusion in light of the legal standard.”
Sumner v. Mata, id. See also Reiger v. Christensen,
789 F.2d 1425 (9th Cir.1986). An example of a mixed question of law and fact is the determination of effective assistance of counsel, a major question presented in this case.
Reiger v. Christensen,
789 F.2d at 1428 ;
Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).
DISCUSSION OF ISSUES
ISSUE NO. 1. Whether Harris received effective assistance of counsel before trial, during trial, and on post conviction proceedings, including appeal.
In his first issue, Harris claims that his counsel’s trial and appellate performance amounted to a denial of his Sixth Amendment right to effective assistance of counsel. He has claimed many deficiencies. They are discussed individually herein as Grounds AP, following an overview of the standard of review.
The Standard for Effective Assistance of Counsel
The right to effective assistance of counsel is found in the Sixth Amendment to the U.S. Constitution. The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This right was comprehensively discussed in
Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).
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In the
Strickland
case, the U.S. Supreme Court observed that the right to counsel is crucial to a fair trial because “access to counsel’s skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution.” 466 U.S. at 685 , 104 S.Ct. at 2063 (citations omitted). Any claim of ineffective assistance must be judged against this benchmark: “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland
at 686 , 104 S.Ct. at 2064 . The court established a two part test to make this determination; to be successful the defendant must sustain his burden of proof on both parts.
First, the defendant must show that counsel’s performance was deficient. This required showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This required showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.
466 U.S. at 687 , 104 S.Ct. at 2064 .
1. Deficiency of Performance
To succeed on the first part of the test, referred to as “deficiency of performance”
(Mak v. Blodgett,
970 F.2d 614, 618 (9th Cir.1993)), the defendant must show that “counsel’s representation fell below an objective standard of reasonableness ... considering all the circumstances ... under prevailing professional norms.”
Strickland,
466 U.S. at 687-88 , 104 S.Ct. at 2064-65 ;
Mak, id.
A reviewing court “must be highly deferential” to counsel’s performance; make “every effort ... to eliminate the distorting effects of hindsight,” and must maintain “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ... and might be considered sound trial strategy.”
Strickland, id.
at 689, 104 S.Ct. at 2065 .
2. Prejudice to Defense
To succeed on the second part of the test, referred to as the “prejudice to defense”
{Mak,
970 F.2d at 619 ), the petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland,
466 U.S. at 694 , 104 S.Ct. at 2068 . Reasonable probability is defined as “a probability sufficient to undermine confidence in the outcome.”
Id.
A reviewing court must evaluate “the totality of the evidence before the judge or jury”.
Id.
at 695 , 104 S.Ct. at 2069 . In a capital case, the reviewing court must apply this balancing test:
When a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.
Id.; Mak,
970 F.2d at 619-20 .
An objective standard of attorney performance, under prevailing professional norms at the time of this case, can be found in the ABA Standards for Criminal Justice, 2nd ed. (1980). (A third edition was published in 1992 and is not significantly different from the second edition.) The American Bar Association’s (“ABA”) project to establish “desirable or acceptable” standards of practice for criminal justice began in 1963. The overall goal is “to represent a just balance between the goals of effective administration of criminal justice and proper regard for the constitutional rights of the accused and society.” Introduction, at xxix. These standards are regularly used by courts as guidelines in determining whether an attorney’s performance falls below reasonable professional standards.
See Strickland,
466 U.S. at 688 , 104 S.Ct. at 2064-65 ;
United States v. Blaylock,
20 F.3d 1458 (9th Cir.1994);
Jeffries v. Blodgett,
988 F.2d 923, 940 (9th Cir.1993).
The ABA’s description of the role of defense counsel is instructive.
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The basic duty the lawyer for the accused owes to the administration of justice is to serve as the accused’s counselor and advocate with courage, devotion, and to the utmost of his or her learning and ability and according to law.
ABA Standard 4—1.1(b). In the commentary, it is stated, “[o]nce a case has been undertaken, a lawyer is obliged not to omit any essential honorable step in the defense, without regard to compensation or the nature of the appointment.”
Id.
at 4.8.
The record reflects that no findings of fact have been made by any state court regarding Harris’s claims of ineffective assistance of counsel. Pursuant to 28 U.S.C. Sec. 2254 (d)(1), this court is not bound by a presumption of factual correctness, may consider the evidence, and make factual determinations. Therefore, this discussion of Issue No. 1 contains extensive findings of fact. Fed. R.Civ.P. 52(a).
The court has grouped two of Harris’s grounds for his claim of ineffective assistance of counsel into one for ease of discussion. Several general principles apply to Grounds A and B.
Ground A. Counsel did not conduct a thorough investigation of facts surrounding the charge and possible defenses.
Ground B. Counsel failed to adequately prepare for trial.
Harris argues that his counsel did not conduct an adequate or thorough investigation of the facts surrounding the charge against him, including possible defenses. Petitioner contends that counsel did not conduct an independent investigation of the events before, during or after the murder. Petitioner alleges that counsel did not obtain an investigator to discover mitigating facts, an independent ballistics expert to examine the bullets and victim’s wounds, or an expert for a social history evaluation. Harris contends that, as a result of this inadequate trial preparation, counsel had no theory of defense, that he was unprepared for effective cross examination, filed inadequate pretrial motions, and was deficient in conducting both the guilt and penalty phases of the trial.
The state generally disputes petitioner’s allegations, and argues that Harris is simply unable to prove them to be true. The state argues that because counsel had known Harris for many years, he was well acquainted with his social and mental history. The state points to various inconsistent statements by Harris himself which complicated counsel’s task in determining a clear trial strategy, other than a general denial. The state concludes that Harris fails to show that he was prejudiced or that the result in the case would have been different if counsel had done more hands-on investigation.
The duty to investigate is part of a defendant’s right to reasonably competent counsel. “The principle is so fundamental that the failure to conduct a reasonable pretrial investigation may in itself amount to ineffective assistance of counsel.”
United States v. Tucker,
716 F.2d 576 , 583 n. 16 (9th Cir.1983) (citing
McQueen v. Swenson,
498 F.2d 207, 217-18 (8th Cir.1974)). The ABA states the duty as follows:
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead guilty.
ABA Standard 4-4.1. The investigatory process should begin immediately on appearance as counsel for a defendant. ABA Standard 4-3.2(a) states:
As soon as practicable the lawyer should seek to determine all relevant facts known to the accused. In so doing, the lawyer should probe for all legally relevant information without seeking to influence the direction of the client’s responses.
The commentary to this standard states:
An adequate defense cannot be framed if the lawyer does not know what is likely to
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develop at trial ... In criminal litigation, as in other matters, information is the key guide to decisions and action. The lawyer who is ignorant of the facts of the ease cannot serve the client effectively.
P. 4.33.
The duty to investigate is not eliminated by the client’s own conclusions or admissions of guilt, because the client’s beliefs may not coincide with the necessary elements of proof to establish guilt in law. The client may not be aware of the significance of facts regarding intent, mitigation, suppression of evidence, or impeachment of witnesses that only an independent investigation can uncover.
See
ABA Standard 4-4.1, Commentary at 4.54.
This obligation cannot be short cut because of counsel’s professional experience or his prior personal experience with the defendant. Counsel’s experience and knowledge are not admissible evidence. “The most able and competent lawyer in the world can not render effective assistance in the defense of his client if his lack of preparation for trial results in his failure to learn of readily available facts which might have afforded his client a legitimate justiciable defense.”
McQueen v. Swenson,
498 F.2d 207, 217 (8th Cir.1974) (citations omitted).
See also United States v. Tucker, supra.
“The effectiveness of advocacy is not to be measured solely by what the lawyer does at the trial; without careful preparation, the lawyer cannot fulfill the advocate’s role.” Commentary to ABA Standard 4-4.1.
The parties have stipulated to several key facts pertaining to these issues: Stip. Facts No. 11 verifies that counsel did not obtain an expert to prepare a social history. Stip. Facts No. 12 verifies that counsel did not retain an investigator to interview witnesses. Stip. Facts No. 69 states that the police reports provided to counsel contained the names of 32 individuals with knowledge of the events pertaining to the murder. Nineteen of these individuals testified at the guilt phase. Stip. Facts No. 70 states that counsel interviewed only 3 of those individuals before trial: Ray Meeks, Valerie Stevens, and Annie Sue Bayless.
Counsel did not obtain an independent evaluation of the ballistic evidence or the forensic evidence in the case. Such an investigation may have led to information useful in creating a defense to the charges, especially since two individuals were charged with the murder. Sgt. Parkhurst, the investigating police officer, did not believe that two .individuals shot Turner, because of the locations of the bullet entries on Turner’s body. Stip. Facts No. 84. Since the first shot was lethal, Sgt. Parkhurst believed that Turner would have fallen immediately, thereby making it impossible for Bonds to pass the gun to Harris to take a second shot. Stip. Facts No. 85, Parkhurst Evid.TR at 6-7. This information was contained in the police reports and autopsy, which were provided to counsel but was not elicited at trial. Stip. Facts Nos. 82 and 83. The need for an independent fact investigation was critical because Harris was the person who initiated police contact, provided evidence to the police, such as the bullets from the gun used to kill Turner, and kept up that contact until he caused them to turn their investigatory attention to him. Stip. Facts Nos. 29, 31, 32, and 33. Such an investigation was even more critical because Harris gave different versions of the murder at different times. Some of the most inculpatory versions may have been subject to attack, as stated above and in Grounds D, E, F, G, and N,
infra.
In addition to those individuals named in the police reports, Stip. Facts Nos. 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, and 81 describe various available individuals who had knowledge of events pertaining to the murder, or of Harris’s social and mental history. None of these individuals were interviewed by counsel and none of the information they had, either for defense at the guilt phase, or mitigation at the penalty phase, was presented by the defense. Counsel made the decision not to interview individuals whose names were provided to associate counsel by Harris. Haist Dep. at 11-12. Counsel did meet with Sgt. Parkhurst on two occasions before the CrR 3.5 hearing. Evid.TR at 13. Counsel, however, did not conduct the CrR 3.5 hearing on behalf of Harris. Associate counsel rep
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resented Harris at that hearing.
See
Ground F,
infra.
Counsel’s failure to interview witnesses deprived him of the opportunity of making
an informed assessment of the strengths and weaknesses of the government’s case without attempting to ascertain specifically what the testimony of the government’s witnesses would be. In general, [counsel’s] ability to cross-examine the government’s witnesses effectively was seriously compromised by his failure to interview them, since he would have little idea as to the specific areas of testimony which could be challenged.
United States v. Tucker,
716 F.2d at 883 . Counsel’s lack of knowledge about the testimony of witnesses is seen throughout the trial.
See, e.g.,
Vol. 1, VRP 247-48; Vol. 1, VRP 402 (no cross examination of medical examiner re ballistic evidence); Vol. 1, VRP 468-69; 475-78; 486 (no discovery of Meeks’ deals with prosecutor for his testimony); Vol. 2, 617-18 (no knowledge of Sylvia Harris’s testimony).
Because of his poor preparation, counsel did not appear to fully understand the implications of Harris’s 22 October 1994 statement that he fired the second shot at Turner. Based on forensic evidence, police believed that Turner was killed by only one man. Parkhurst Evid.TR at 6-7; Stip. Facts No. 85 and Ex. G to Stip. Facts. Counsel testified that his trial strategy changed after hearing this statement. He testified that he was surprised with Harris’s new version of the events and he was essentially left without a theory of defense. There was no reason to allow Harris to make this statement as part of a reasonable defense strategy and to have suggested or allowed it was not competent. Cease Dep. at 41-42.
See
Grounds C and F,
infra.
One means of evaluating counsel’s performance in this case is to compare the activities of counsel for the co-defendant, Bonds. For example, the record reflects that a series of written pretrial motions were filed in the Bonds case. These were: Motion for Examination Pursuant to RCW 10.77.060(1) (Vol. 3, CP 1122-24); Motion to Sever Defendants for Purposes of Trial (joined by Harris after its filing) (Vol. 3, CP 1042-49); Motion for Change of Venue, or in the Alternative for Individual Voir Dire (Vol. 3, CP 1216-18); Motion re Unconstitutionality of RCW 10.95.-060(4) (Vol. 3, CP 1224-30); Motion to Quash Jury Panel (Vol. 3, CP 1272-76); Motion re Excusing for Cause a Juror Who is Opposed to Capital Punishment on Religious Grounds (Vol. 4, CP 1389-1411); Motion for Dismissal for Improper Prosecutorial Discretion and Violations of Due Process and Equal Protection (Vol. 3, CP 1202-06); Motion to Dismiss Based Upon the Unconstitutionality of RCW 10.95.040 and RCW 10.95.060(4) “as applied” (Vol. 4, CP 1412-21); Motion re Admissibility of Video Tape [Bonds’ counsel prepared a video tape, reenacting the murder] (Vol. 3, CP 1208-15); Motion to Dismiss [for Violation of 5th Amendment] (Vol. 3, CP 1231^45); Motion re Unconstitutionality of RCW 2.36.-010 (Vol. 3, CP 1219-23); Motion for Order Allowing Copy of Benjamin Harris Testimony (Vol. 3, CP 1207); and various motions
in limine (see
Order at Vol. 4, CP 1499). Harris’s counsel filed three written pretrial motions: Motion for Mental Examination (Vol. 3, CP 1138-41); Motion for Continuance of Trial Date and for Examination of Defendant by Defendant’s Own Expert (Vol. 3, CP 1162-63); and Request for CrR 3.5 Hearing
(see
order at Vol. 3, CP 1072).
Another example is to compare the time representations of Harris’s counsel with those of counsel for Bonds. Since both individuals were charged with the same offense, the cases were based on the same evidence. In an unrelated affidavit, Bonds’s counsel stated:
Finally, presentation of the penalty phase requires massive preparation by defense counsel. Such is not humanly possible at the same time as preparing for defense of the guilt phase. Some of the most basic and fundamental issues of life are required to be aired and argued to their fullest. Your affiant, while working literally seven days a week on this matter, has not had sufficient time to marshall that testimony, nor consider the appropriate strategies and arguments to present to the jury.
Vol. 3, CP 1281. A review of Harris’s counsel’s time sheet indicates that he spent a total
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of only approximately 14 hours investigating and interviewing witnesses. Ex. J to Stip. Facts.
It is inconceivable to this court that so little time was spent in pretrial investigation and preparation for a capital murder case. Counsel’s investigation and preparation for trial fell below the objective standard of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different, that is, the deficiency undermines confidence in the outcome.
Ground C. Counsel failed to adequately consult with his client and to fully inform him on important issues and decisions regarding his defense.
Harris argues that his counsel failed to spend enough time with him discussing pretrial motions, information learned from discovery, developments through investigation, trial strategy and tactics (including whether he would testify at trial), the overall defense theory, and the advantages and disadvantages of admitting to murder.
The state responds that Harris erroneously relies solely on counsel’s billing statement, which is reflected in Stip. Facts No. 96 and Ex. J to Stip. Facts. That statement shows that counsel spent a total of one hour and 48 minutes consulting with Harris before the trial began. According to the state, this billing statement of the time spent by counsel on this case is inaccurate and does not reflect the true amount of time spent. The state contends that counsel routinely did not bill for his total time on a case.
The most fundamental element of competent representation of any client is the establishment of trust and confidential relationship. ABA Standard 4-3.1(a). This is especially true in criminal defense and is paramount in a capital ease. Without this relationship, “the client may withhold essential information from the lawyer. Important evidence may not be obtained, valuable defenses neglected, and perhaps, most significant, the lawyer may not be forewarned of evidence that will be presented by the prosecution.” Commentary to ABA Standard 4-3.1. Even when a lawyer seeks input from the client on recommended strategic or tactical decisions affecting the client’s rights, the client’s reliance on counsel’s expertise and full and careful advice is critical.
See
ABA Standard 4-5.2 and commentary.
The amount of client consultation required depends on the circumstances, charges, and facts of each individual case. At a minimum, “the consultation should be sufficient to determine all legally relevant information known to the defendant.”
United States v. Tucker,
716 F.2d at 882 n. 12 (citing The ABA Standards for Criminal Justice, Standard 4-3.2). An attorney should contact the defendant immediately and “spend quite a bit of time with the individual at that early stage.” Cease Dep. at 14-15. Continual contact with the defendant thereafter is necessary to firmly establish a trusting relationship.
Id.
at 16. If defense counsel is faced with a client who does not follow his advice or has communication problems, the attorney should made a record, either in court or in his file, detailing the problem and his efforts to deal with the problem. Such a record is necessary 1) to protect the attorney from later attacks on his effectiveness and competency; 2) to assist the client; and 3) to notify the court that some curative action may be necessary to protect the client’s rights. Cease Dep. at 31-32; ABA Standard 4-5.2(c) and commentary.
Stip. Facts No. 96 states that counsel billed for time with the defendant as follows: August 13, 12 minutes; October 11, 6 minutes; October 19, 90 minutes. Ex. J reflects additional time on August 8, 1984 of 1.4 hours and on August 9, 1984 of .8 hours. These latter two dates occurred after Harris’s arrest but before his arraignment on the murder charge.
Counsel testified at the evidentiary hearing that it was difficult to talk to Harris while he was incarcerated because Harris believed the jail was bugged.
He didn’t want to say a lot of things to me in the jail. We did have communication when we were in court. I would get the opportunity to talk to him before and after,
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sometimes quite lengthy. He—Q. How lengthy? A. Oh, five minutes, perhaps ten minutes type thing as to what we were doing, where we were going.
Evid.TR at 14. Counsel recalled that he spoke with Harris on the telephone “maybe two or three, maybe as many as four or five” times.
Id.
at 15. Counsel made no effort to find another means of communicating with Harris in order to relieve Harris’s paranoid fears. Such accommodations are highly recommended in ABA Standard 4-3.1.
Counsel was assisted by attorneys employed in his office, particularly one associate. Evid.TR at 6. Although there is no documentary information regarding the amount of time the associate spent with Harris, the associate testified that he met with Harris at the jail to review information he learned from the police reports, less than ten times, probably three or four times. Haist Dep. at 55. He stated that he was unable to accomplish that purpose because Harris did not rationally respond to his specific questions; that Harris would shift to irrelevant subjects.
Id.
at 9-10.
In spite of this limited contact, counsel made the decision on how the trial would proceed from the defense perspective.
Id.
at 30. This included the initial decision to place Harris on the witness stand, to which Harris was “resigned.”
Id.
at 41. There was no lengthy witness preparation before placing Harris on the witness stand in the guilt phase.
Id.
at 37. In fact, the associate testified that counsel believed that Harris was incapable of testifying to anything, because of his inability to assist with his defense before trial.
Id.
at 38.
The court is aware that counsel may have spent more than the documented one hour and 48 minutes consulting with Harris after charges were filed. Rather than come forward with supplemental time records reflected additional hours of consultation, counsel explained that Harris had little substantial information to contribute to his defense. As is discussed in Ground D,
infra,
Harris’s mental condition made meaningful consultation extremely difficult. If counsel had spent more personal time with Harris, he may have become convinced that Harris suffered from significant mental and/or emotional dysfunction, and may have acted differently. The court is also aware that the associate consulted with Harris, but counsel spent little time with the associate exchanging information gained from the associate’s visits with Harris. Haist Dep. at 18-19, 21.
Counsel’s failure to adequately consult with his client fell below the objective standard of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different, that is, the deficiency undermines confidence in the outcome.
Ground D. Counsel failed to Investigate Harris’s mental and emotional status, including mental capacity and incompetence to stand trial.
Harris argues that counsel did not interview numerous witnesses available to testify regarding his delusional mental state. Counsel did not seek or obtain medical and academic records which detailed his troubled childhood and youth, delusional thinking, and suicide attempts. As a result, Harris contends, the evaluating experts at Western State Hospital were not fully informed of his true history. Therefore, Harris argues, his counsel did not have accurate information to assess whether Harris was competent to stand trial or whether a defense of insanity or diminished capacity was appropriate.
The state argues that Harris is unable to prove that he fit the criteria for incompetency to stand trial, and that a defense based on insanity or diminished capacity would not have appropriate. The state finds no fault with counsel’s decision to forego trial preparation on these issues..
Harris’s legal expert opined that in an aggravated murder ease, it is mandatory to hire a psychiatrist to assist counsel for several reasons: to advise on the propriety of placing the defendant on the witness stand; to assist with fact investigation and determination of what areas to pursue or not pursue; and to explain any bizarre behavior of the defendant. Cease Dep. at 20-25. These de-
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fíciencies amounted to ineffective assistance of counsel. Cease Dep. at 29. While the court does not conclude that a defense psychiatrist is necessary in
every
aggravated murder ease, certainly one was necessary in this case.
In the Harris case, there were two distinct purposes warranting an investigation of insanity, diminished capacity or incompetence: as a defense to the charges in the guilt phase, and as mitigating evidence in the penalty phase. Stip. Fact No. 14 indicates that counsel was aware of Harris’s history of emotional problems and that counsel had similar communication problems with Harris during his representation in a criminal matter in May, 1968. Stip. Facts No. 50 verifies that counsel did not attempt to locate educational and medical records for Harris; Stip. Facts Nos. 51, 52, 53, 54, 55, 56, 57, 58, and 59 detail the types of records available from various sources, and their content.
See also
Exs. C and D to Stip. Facts. Counsel obtained an order allowing an independent psychological evaluation, but he failed to obtain an expert or to have Harris further evaluated until post trial proceedings.
Counsel testified that he did not consider insanity or diminished capacity as defenses “[b]ecause I had no evidence upon which to hang my hat that they could be reasonably successful, and I didn’t believe them myself.” Evid.TR at 19. Counsel stated that although he was somewhat aware of some of the strange stories being stated by Harris in his letters, he believed that Harris was “dissembling”; that is, attempting to convince others that he was mentally ill.
Id.
at 37-38. However, counsel filed a motion for Harris to be evaluated and, off the record, discussed the matter with the trial court, who sent Harris to Western State Hospital for evaluation.
Id.
at 38-40. Counsel stated that although he filed the affidavit detailing Harris’s observable conduct, counsel believed that Harris was creating a false impression of his mental state. Counsel signed the affidavit supporting the motion for a mental examination, but personally did not believe in its contents. The affidavit was primarily the beliefs of associate counsel.
Id.
at 60-61. In the post trial proceedings, Dr. Traywick stated his professional belief that motive for Turner’s murder (car tampering and debt) may have been a part of Harris’s delusional system, which might have started as early as February or March 1984. Vol. 2, VRP 874-75.
Counsel erroneously substituted his personal judgment of Harris’s competency and mental state for the expertise of mental health professionals. Because of his personal opinion of Harris, he failed to present to the evaluating team at Western State Hospital copies of letters which he, police and judges had received from Harris. Stip. Facts No. 56. These letters contained delusional beliefs and bizarre statements. As was seen in the development of the case, Harris’s beliefs and statements were accepted as true because they were unchallenged and were used against him time and time again. Although Harris has the right to free speech, it was appropriate that his counsel determine if Harris’s speech was based on truth or was the product of a mentally ill, or impaired, man.
The record is replete with evidence of Harris’s mental dysfunction. Counsel failed to adequately explore the genesis and meaning of this dysfunction as part of a defense theory. The court cannot determine whether any valid defense based on insanity or diminished capacity existed, or whether Harris was incompetent to stand trial. However, the record reflects that Harris’s mental instability was well documented, beginning in his childhood, and significantly affected his entire life. As a result, decisions and statements made by Harris had a questionable validity. If his mental condition had been properly and understood during the time the charges were pending, the entire course of defense may very likely have been different. For example, counsel may not have recommended Harris make the October 22, 1984 pretrial statement, or recommended that Harris take the witness stand at trial, and would certainly have presented evidence of mental and emotional dysfunctioning in the penalty phase.
Counsel’s failure to investigate Harris’s mental and emotional status fell below the objective standard of reasonableness and
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amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different, that is, the deficiency undermines confidence in the outcome.
Ground E. Counsel failed to challenge admissibility of Harris’s statements.
Harris argues that counsel failed to challenge the admissibility at trial of his oral and written statements to police officers made before October 22, 1984, regarding the events of the murder.
The state contends that the admissibility of these statements had been adequately tested at the CrR 3.5 hearing and that the trial court correctly ruled that all statements could be admitted.
Harris does not specifically attack the validity of the trial court’s ruling on the statements at issue in the CrR 3.5 hearing. Harris complains that counsel did not represent him at this critical step in the pretrial proceedings, leaving his interests in the hands of an inexperienced associate. The hearing transcript showed that many statements given by Harris at different times and in different ways were in issue. Some statements were oral, some written, some initiated solely by Harris, some given in response to police interrogation, and some given in response to polygraph examinations. It is not clear that counsel or the associate had copies of all of the statements or were fully informed of all of the circumstances in which each of the statements were made.
Without knowing the answers to these uncertainties, the court cannot pinpoint specific errors made during the hearing that may have resulted in a different ruling. Certainly, counsel’s absence from this hearing deprived Harris of the full benefits expected of a CrR 3.5 hearing, including assessment of the demeanor of witnesses, testing various techniques of cross examination, exploring alternative trial strategies, and learning of all statements made and their circumstances.
Harris did not testify at the hearing and he was not advised by the trial court of his right to do so. The associate made that decision alone. Vol. 1, VRP 60.
Counsel’s failure to challenge the admissa-bility of Harris’s statements fell below the objective standard of reasonableness and amounted to a deficient performance. There is not, however, a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different.
Ground F. Counsel failed to properly protect Harris’s rights when the October 22, 1984 statement was made and admitted at trial, and during Harris’s testimony during the guilt phase.
Harris contends that counsel’s advice convinced him to make a statement regarding his involvement in the events surrounding the murder with the possibility of negotiations leading to a reduction in the charge or in sentencing options. Harris argues that counsel did not know what he intended to say when he gave his statement. Harris contends that counsel did not set any specific ground rules with the prosecutor for evaluating the worth of statement before Harris began his statement. Harris believes that his counsel should have stopped him when it was apparent that Harris was making statements different than counsel expected. Harris argues that there was no tactical reason, based on the evidence in the case, for Harris to make the statement or to allow it to be used against him during the guilt phase of the case.
Counsel did initiate discussions with the prosecutor on the premise that, if Harris made a statement, there might be some consideration, or some kind of arrangement, as to a reduction of the charge or of the sentence requested. Evid.TR at 20-21; Haist Dep. at 35-36. This strategy was based on counsel’s successful experience in another case. Counsel thought that it was “unconventional, but it could be done.” Evid.TR at 20-21. Counsel testified that he “encouraged [Harris] to make that statement” and advised Harris that if he made the statement, that it might be useful to the prosecutor in the trial of the co-defendant, Bonds.
Id.
at 21-22. It
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was also “[t]o get a good confirmed statement of Ben Harris’s movements that night, what occurred the night of the Turner killing, so that the prosecutor could utilize that information not only in the Harris case, but in the Bonds ease.”
Id.
at 22-23. Counsel testified that he did not know what was in Harris’s mind at the time of the statement, but in counsel’s mind, the purpose was for plea negotiation.
Id.
at 24. Harris told Dr. Tray-wick in November or December, 1984 during his post trial evaluation, that he only said he killed Turner because counsel advised Harris that if Harris said he directly participated in the killing, he would be in a better position regarding sentencing. Vol. 2, VRP 876.
Counsel presented the option of making a statement to Harris by inquiring whether
he [Harris] wanted to stick with his version of the facts. [Counsel] speculated that in the event Harris had been involved in the shooting of Turner himself, that might potentially provide a defense to the aggravating circumstance. That was [counsel’s] view. He explained that, as I recall to Harris, and in light of that, he asked Harris whether or not he wanted to discuss any changes to his testimony.
Haist Dep. at 33-34. No research had been done on this subject before this discussion because there was no time.
Id.
at 34, 39^0.
The failure to investigate properly resulted in advice to make a statement of guilt without exploring the relevant facts or the impact of the statement. ABA Standard 4-6.2 addresses conduct of discussions with prosecutors. Generally, the defendant should be kept advised of developments at all times. Whether to have the defendant present during negotiations is risky unless the attorney has carefully gone over anticipated statements in advance.
See
Commentary at 4.75. Counsel must be careful not to understate or overstate the risks of the case in order to influence the client to plead guilty or to make a statement of guilt.
See generally
ABA Standard 4-5.1.
The court can fairly assume from considering the statement itself and the testimony of counsel, that the initial motivation for the statement was counsel’s last ditch effort to eliminate the aggravating circumstance (solicitation for murder) from the trial. If successful, Harris would not face the death penalty. However, it is obvious that counsel and the prosecutor were not of the same mind. The prosecutor stated, “There have been no promises made between our office and you. We’re not saying that we’re going to do anything as a result of this statement. We’re here, we’re going to listen to his statement, and evaluate it thereafter_” Plaintiffs Ex. 14, at 2. Counsel responded, “No. My understanding as to why we are here is if this statement meets the requirements at this time the charge would be reduced to murder in the first degree rather than aggravated murder. On that basis he is making this statement.”
Id.
at 3. There is no indication in the expanded record what requirements, if any, had been discussed previously between counsel and the prosecutor, or related to Harris as inducement to make the statement. At that point, counsel’s original advice to Harris was obsolete, as it was apparent that there was no specific agreement between counsel and the prosecutor. Counsel should have stopped the proceedings, and either clarified his understanding with the prosecutor or clarified his understanding with Harris.
Counsel’s plan that the statement could be used as leverage to eliminate or weaken the prosecutor’s case completely failed. Clearly, this plan was not thoroughly thought out, as Harris’s statement only served to strengthen and corroborate the evidence against him, including circumstances supporting the aggravating element of solicitation for murder. Specifically, Harris stated he was doing drugs and alcohol at the time, and that he believed that Turner had damaged his car, which supplied a motive. Harris also stated that Turner owned him money, also a motive. Although he denied any solicitation of murder, Harris said he rendered assistance to Bonds by driving Bonds to Turner’s location, providing Bonds with a gun, and to ensure death, even fired a second shot at Turner.
Counsel was apparently unaware that Harris’s version of the events were implausible based on the forensic evidence. The record in this court is clear that Sgt Parkhurst, the investigating police officer, did not believe
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that two individuals shot Turner, because of the locations of the bullet entries on Turner’s body. Stip. Fact No. 84. Since the first shot was lethal, Sgt. Parkhurst believed that Turner would have fallen immediately, thereby making it impossible for Bonds to pass the gun to Harris to take a second shot. Stip. Facts No. 85, Parkhurst Evid.TR at 6-7. This information was contained in the police reports and autopsy, which were provided to counsel but was not elicited at trial. Stip. Facts Nos. 82 and 83.
After the statement was given, counsel failed to investigate or research any available grounds to avoid the admission of the statement into evidence, even though counsel knew, or should have known, that his original purpose of negotiation would have raised a question of admissibility under Washington State Rules of Evidence, ER 410. When his purpose failed, his trial strategy of general denial was eliminated. Counsel was left without a trial strategy hours before the trial began. In his own words, “The trial was a sham.” Evid.TR at 45.
Competent counsel would have asked for a continuance. Cease Dep. at 45. Counsel did not bring the problem to the attention of the trial court in any way. Counsel explained “I wasn’t in a position to do so. There’s a time and tide in affairs, and I felt that away we go. You know, what kind of sense would that make? I ask for a continuance and then he changes his story. Counsel, you know that would be utterly dissembling to the hearing parties.” Evid.TR at 49. Counsel’s concern was unfounded. In post trial proceedings when the trial court learned that some of the psychological testing was not scored and included in the experts’ opinion of Harris’s mental health, the trial court stated: “I only wish the court had been informed of these matters, Gentlemen.” Vol. 2, VRP 839. And,
I am sorry, Gentlemen, that you did not advise me of the existence of this potential source of evidence before we proceeded with that sentencing phase. This creates problems, the magnitude of which is difficult to perceive.
Vol. 2, VRP 842.
The critical nature of Harris’s statement cannot be overemphasized. It served to corroborate other witnesses’ testimony. Its transcription was given to the jury as an exhibit and was used during their deliberations. The jury was free to study it carefully and weigh each word while assessing Harris’s guilt, the aggravating circumstance, and the penalty.
Perhaps even more egregious is counsel’s decision to cure his tactical problems by putting Harris on the witness stand and waiving his Fifth Amendment protection against self incrimination at trial. It was not until the beginning of the trial that counsel determined that Harris must testify: “The trial was a sham, and the best thing I could think of to do was put Ben Harris on. If somebody is going to ring the bell, better he ring it himself.” Evid.TR at 45. “The reason I called him as a witness was because he had made the statement, and as I earlier told you, I believed that the jury had better hear it from Mr. Harris rather than on some readout from the prosecutorial side.”
Id.
at 48. “Had he not made the statement of the type that he made, there would have been no need to call him as a witness.”
Id.
at 49. Generally, an attorney cannot waive a substantive right of his client, unless specifically authorized to do so.
State v. Dault,
19 Wash.App. 709, 716 , 578 P.2d 43 (1978). A defendant should not be bound by the decision of his attorney at a time when he did not fully understand his rights.
State v. Williams,
87 Wash.2d 916, 921 , 557 P.2d 1311 (1976) (citations omitted).
At trial, counsel stipulated to the admission of the statement as freely and voluntarily given by Harris. Vol. 2, VRP 565. Although counsel also opined that a CrR 3.5 hearing was not necessary,
(Id.),
counsel asked the court to advise Harris of his constitutional rights regarding a CrR 3.5 hearing to determine if the statement was made voluntarily.
Id.
at 566. The court did so and advised Harris of his panoply of rights but only in the context of a CrR 3.5 hearing.
Id.
at 566-69. The court never advised Harris of his right to remain silent before he took the witness stand, nor did counsel ask the court to do so. Harris never was advised
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of, or waived, Ms right to remain silent during the trial.
Counsel took the extraordinary step of placing his client on the stand without any witness preparation, without a trial strategy, without a discernible purpose, without any certainty as to what Harris would say, and with some concern that Harris would perjure himself. Counsel, on direct examination, led Harris to the time immediately before the murder, leaving the prosecutor, without objection, to flesh out the details of the murder with Harris. This, as well as counsel’s failure to have Harris address the aggravating circumstances, obviously had a very negative impact. Cease Dep. at 37-40. It is difficult to believe that at this critical point in the guilt phase Harris was making an informed and independent decision to testify and that he knew he did not have to testify, even though he had given a previous statement. In light of Ms questionable mental condition, a substantial question is raised as to whether he could have intelligently waived Ms right to silence. Counsel should have made a record as described in ABA Standard 4-5.2.
See also
Cease Dep. at 45-47. In either event, Harris was deprived of the protection of the Fifth Amendment. It is obvious that Harris’s ill-advised testimony was prejudicial to him.
Counsel’s failure to adequately protect Harris’s rights pertaimng to making and admitting the October 22, 1984 statement, and pertaimng to Harris’s testimony during the grnlt phase fell below the objective standard of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for tMs deficiency, the result of the guilt and penalty phases would have been different, that is, the deficiency undermines confidence in the outcome.
Ground G. Counsel should have attempted to mitigate with the prosecutor before the prosecutor decided to seek the death penalty.
Harris argues that counsel should have gone to the prosecutor immediately after counsel was appointed to attempt to convince the prosecutor that sufficient mitigating circumstances existed to negate the appropriateness of the death penalty. Harris contends that if counsel had done so, there was a likelihood that the prosecutor would not have filed notice of intent to seek the death penalty.
The state argues that there was rnsuffi-cient time for that meeting to have realistically occurred. Because counsel was appointed four days before the notice of mtent to seek the death penalty was filed, the state argues that counsel could not have conducted any kind of an investigation into the existence of mitigating circumstances in that short a period of time.
Defense counsel is under an obligation to take prompt action to protect the rights of the defendant. Often, some rights can oMy be protected by promptness. Counsel should take all necessary and good faith procedural steps to carry out tMs duty.
See
ABA Standard 4-3.6(a). A defense attorney, almost without exception, should contact the prosecutor immediately to convince him that the death penalty is not appropriate. Cease Dep. at 15, 18, and 20.
Immediate discussion with the prosecutor before the decision to seek the death penalty is a task performed by competent defense counsel. Counsel did not attempt to dissuade the prosecutor from filing the notice of intent to seek the death penalty. It would be speculation at best to conclude that such efforts would have caused the result to be different. Overlooked in the discussion is the fact that the prosecutor could have withdrawn the death request at any time he was satisfied that mitigatmg facts called for that action. Even late attempts would be better than none at all.
Counsel’s failure to attempt mitigation with the prosecutor before the death penalty was sought fell below the objective standard of reasonableness and amounted to a deficient performance. There is not, however, a reasonable probability that, but for tMs deficiency, the result of the guilt and penalty phases would have been different.
Ground H. Counsel failed to conduct proper voir dire.
Harris contends that counsel was absent during part of the voir dire, leavmg the
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inexperienced associate to conduct it alone.
See
Stip. Facts No. 5. As a result, Harris contends he suffered prejudice.
The state finds no fault with the associate’s performance. The state points out that counsel was absent only during the questioning of one prospective juror and that individual was dismissed. On this basis, the state argues that Harris cannot show prejudice.
The selection of jurors is a critical area of a jury trial, especially in a capital ease. A lawyer should prepare himself to perform this function effectively. Because jury selection decisions are made under time pressures, a lawyer can only make those decisions wisely if he is adequately prepared for trial.
See
ABA Standard 4-7.2 and its commentary. This court reviewed the voir dire record and agrees with Harris’s legal expert. The voir dire was appropriate for a “shoplifting case,” was “totally inadequate” and did not accomplish any of the generally accepted purposes of voir dire. Cease Dep. at 34-37. While Harris is unable to point to any specific prejudice, the conduct of voir dire is another indication of his counsel’s casual attitude toward his representation of Harris.
Harris is correct that the associate was inexperienced and unprepared to actively assist during voir dire. The associate testified that he had only conducted a voir dire “maybe in a DUI; one or two” times before his experience at Harris’s trial. Haist Dep. at 42. The associate had done no preparation for voir dire in a capital case but was directed to proceed by the trial court.
Id.
at 42 — 43. However, the associate performed only a small part of the voir dire.
Counsel’s performance during voir dire was not exemplary. Counsel’s failure to conduct proper voir dire fell below the objective standard of reasonableness and amounted to a deficient performance. There is not, however, a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different.
Ground I. Counsel failed to object to inadmissible evidence.
Harris contends that counsel failed to object to the admission of his 1969 prior convictions at the penalty phase.
The state argues that counsel did not object to the prior convictions because counsel believed that this evidence was admissible and any objection would have been meritless.
This legal aspects of this ground are discussed in Issue No. 2,
infra.
There were arguable grounds for objection to the admission of the convictions. The associate was concerned about the issue, but testified that it was counsel’s “call.” “He was attorney of record. He was calling the shots as we went along.” Haist Dep. at 45. Counsel should have objected to the prior convictions, even if success was doubtful. Cease Dep. at 43-44, 50-51, 60.
The court notes that there were other questionable items of evidence that counsel did not object to. One particular example is testimony regarding a list of people Harris intended to kill for various reasons. The evidence was of doubtful relevance in the guilt phase, and was highly prejudicial. Without a challenge to its relevance or admissibility under ER 403, this evidence was established as factual, and was cited as indicative of Harris’s murderous propensities.
See, e.g., State v. Harris,
106 Wash.2d at 799 , 725 P.2d 975 ; Report of the Trial Court, Vol. 4, CP 1660. Although this court gives no opinion on the admissibility of that evidence, some challenge to it should have been made, either by objections during testimony or in a motion
in limine
before the testimony.
Counsel’s failure to object to certain questionable evidence fell below the objective standard of reasonableness and amounted to a deficient performance. There is not, however, a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different.
Ground J. Counsel failed to develop a viable defense strategy.
Harris argues that counsel did not present a viable defense on his behalf. Harris attacks counsel’s decision to place him on the witness stand, because Harris’s version of events were not supported by physical evidence. Because counsel did not conduct an adequate investigation, including an inde
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pendent evaluation of physical evidence, Harris argues that counsel was unaware that the forensic evidence did not support his testimony, or that his testimony was inconsistent with other witnesses.
The state argues that Harris cannot prove that counsel improperly advised him to make a statement or to testify. The state also argues that Harris had made inculpatory statements to others, for example to Robin Taylor, a woman with whom Harris was intimate.
Competent counsel, acting effectively, should have a solid trial theory, developing from the initial contact with the defendant, and an alternative theory. There was no discernible defense theory throughout the trial — not even a general denial. Cease Dep. at 26-27. Counsel testified that the defense would be general denial; to force the state to prove their case and to challenge their witnesses. Evid.TR at 10-11. What trial strategy there was, was developed while the trial proceeded.
See
Grounds A and B,
supra.
The strategy of general denial changed after the October 22,1984 statement to a denial of the aggravating circumstance only. But there was no clear effort to even attack the state’s proof on that issue.
Failure to develop a viable defense is shown in other ways. Not only did counsel fail to investigate the forensic evidence independently, but there is no showing that Sgt. Parkhurst was a qualified ballistics expert, capable of rendering an expert opinion on the entries of the bullets in relation to the precise cause of death. The court notes that counsel for Bonds had a demonstration video tape made of the events of shooting to raise doubts about how the murder really occurred. Harris’s counsel created no defense aids. Finally, because counsel only interviewed 3 of the witnesses who testified at trial, counsel was not aware of the inconsistencies between Harris’s testimony and other witnesses.
Counsel had no strategy for presentation of mitigating evidence, as discussed in Ground N,
infra.
Harris has shown here, and in other grounds, that counsel failed to present a viable defense, or had any clear, discernible defense strategy. A viable defense is necessary to reasonably competent representation. Counsel’s failure to develop a viable defense strategy fell below the objective standards of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different, that is, the deficiency undermines confidence in the outcome.
Ground K. Counsel failed to propose, or except to, jury instructions.
Harris argues that counsel did not propose any jury instructions in the guilt phase, and failed to object to any proposed instruction offered by the state in either the guilt or the penalty phase.
See
Stip. Facts No. 93.
In the guilt phase, counsel failed to submit any jury instructions, or to argue the merits of submitting instructions on lesser included offenses. Counsel, in his closing argument in the guilt phase, told the jury that the murder amounted to no less than second degree murder, “And I’m sure the court would have given us instruction there are lesser degrees of crime, yet.” Vol. 2, VRP 766.
In the penalty phase, the record reflects that counsel did not offer jury instructions defining manslaughter, the subject of the admitted 1969 prior conviction. As discussed in Issue No. 2.C, a manslaughter is not a murder and may be based only on negligence. Without clarification, the jury was free to believe the prosecutor when he warned them in his closing argument at the penalty phase, that “Harris has killed before.” Vol. 2, VRP 815. This view was adopted by the trial court and included in his report.
See
Vol. 4, CP 1660.
Issue No. 18,
infra,
also discusses two erroneous jury instructions given at the penalty phase. The record reflects that counsel did not object to these instructions, either.
Counsel’s failure to object or propose jury instructions in a capital case fell below the objective standards of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this
*1267
deficiency, the result of the penalty phase would have been different, that is, the deficiency undermines confidence in the outcome. There is not, however, a reasonable probability that, but for this deficiency, the result of the guilt phase would have been different.
Ground L. Counsel failed to object to improper comments by prosecutor during closing argument in penalty phase.
Harris argues that counsel failed to object to improper comments by the prosecutor during the closing argument in the penalty phase. This ground is more fully addressed in Issue
No. 9, infra.
The state argues that any objection was meritless and would have been overruled. The state also contends that Harris cannot show either error or prejudice in counsel’s failure to object.
The state’s argument is essentially correct on this part of this ground. However, competent counsel would have objected to preserve the issue for later appellate examination.
The court also notes that the prosecutor made an important misstatement of the law during his closing argument in the guilt phase. He shifted the burden of proof to the defendant by stating:
What would you have to do, logically, under these jury instructions with the evidence you’ve heard to find him not guilty? To find him not guilty, you’d have to determine, first off, that he didn’t Mil anybody, or solicit or command anybody to be Mlled, you’d have to find that he was not an accomplice with Bonds in any way, you’d have to find, I submit to you, that Bonds exited the veMele, as Harris said, went over there with the idea to Mil Turner, Mlled Turner, that this was done with no connection by Harris at all, that he wasn’t helping or aiding in any way, and that Turner died immediately, and that Harris then took the gun knowing he was dead, and shot him. That would be, I submit to you, the only logical way you could come up with a verdict of not guilty.
Vol. 2, 745^46. This statement is incorrect. To find Harris not guilty of anything, the jury must have a reasonable doubt about any element of the offense charged. Clearly, counsel should have also objected to this argument.
Counsel’s failure to object to improper prosecutorial argument fell below the objective standards of reasonableness and amounted to a deficient performance. There is not, however, a reasonable probability that, but for this deficiency, the result of the guilt phase would have been different.
Ground M. Counsel’s closing argument in the guilt phase was deficient.
During counsel’s closing argument in the guilt phase of the trial, he referred to Harris in a very negative way. He told the jury that Harris was a liar about 85% of the time. Counsel said that Harris probably told the truth about being a male member of a very small society of men who do not work, carry weapons, and have a sense of honor and bravery that is demonstrated when one Mils someone. He described Harris has having ins and outs with several young women, having cars that do not work, drinMng a lot, and trying to be funny in a capital murder trial. Counsel said that Harris had a different moral code, that he is a tMef, and a money lender on the side. Vol. 2, VRP 760-777.
■ After establisMng Harris in this light, counsel then tried to convince the jury that Harris tried to confess to the murder, that Harris had no money to pay off any contract, and that although Harris may not be believable on this, that Harris denies that the solicitation for murder, the aggravating circumstance, took place. Counsel advised the jury not to engage in finding the truth among the witnesses. “I don’t think that you ought to go so far as to decide who told the truth. It appears to me that there is ample room for any trier of fact to decide that you have heard a bundle of liars from the word go here, excepting the lawyers, of course.” Vol. 2, VRP 775-76.
The court should not second guess counsel’s trial strategy here, or elsewhere in the course of the trial. However, these argu
*1268
ments were beyond any discernible trial strategy, and were outrageous. They did not support a reasonable defense theory, and can be construed to be racist and stereotypical. (Harris is an African-American.) The one person in the courtroom who is professionally obligated to display a sense.of loyalty and advocacy has described Harris in such a way that left him with little or no credibility, no humanity, and no means to be identified as a peer of the jury. Further, it was counsel’s strategy to put Harris on the witness stand only because counsel did not have any other strategy. Not surprisingly, Harris made statements inconsistent with some of his other statements, but consistent with his mental problems. Rather than protect Harris, counsel argued to the jury to disregard most of Harris’s statements as unreliable and dishonest.
When this ground is considered in the totality of all circumstances, there is no sound trial strategy that supports counsel’s statements about Harris.
Counsel’s closing argument in the guilt phase fell below the objective standards of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the guilt phase would have been different, that is, the deficiency undermines confidence in the outcome.
Ground N. Counsel failed to present available evidence during penalty phase.
Harris argues that counsel’s failure to present any readily available mitigating evidence during the penalty phase deprived him of a fair trial, his Sixth Amendment right to effective assistance of counsel, and due process of law. Harris lists numerous facts that, he argues, fit neatly into the category of mitigating circumstances, such as his delusional mental condition, academic problems beginning in early childhood, poor family relationships, mental health problems including suicide attempts, and paranoid thinking which began in early childhood. Harris relies heavily on
Mak v. Blodgett,
970 F.2d 614 (9th Cir.1992) and cases cited therein.
The state argues that if the court heeds the requirement of
Strickland, supra,
and evaluates counsel’s performance at the time of counsel’s conduct, it will be clear that his tactical decisions and defense theories fall within a range of professional competence. The state also contends that Harris cannot demonstrate actual prejudice, as he cannot convincingly show that the mitigating evidence he believes existed at the time would have resulted in a different result at trial.
This discussion must begin with a reminder that this ground focuses on the penalty phase of a capital case. In this phase, the jury has considered evidence which convinced them of the defendant’s guilt and is determining whether the defendant should live or whether he should die. ROW 10.95.-060; 060(4). The defense role in the penalty phase is to present evidence to convince each member of the jury not to vote to have the defendant killed. To achieve this goal, defense counsel should humanize his client, overcome the common prosecutorial position that the defendant is evil, and to provide to the jury with reasons for the defendant’s conduct by explaining the forces in the defendant’s life that could have led up to the circumstances of murder.
See generally
Ex. C to Petitioner’s Motion to Expand the Record, Stebbins, David C. and Kenney, Scott P.,
Zen and the Art of Mitigation Presentation, or, The Use of Psycho-Social Experts in the Penalty Phase of a Capital Trial,
The Champion, August, 1986, 87H-37.
The Eighth Amendment to the Constitution states “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In a capital case, it requires that the death penalty be the appropriate punishment in a specific case, and that it can only be imposed after adequate consideration of factors that might warrant mercy.
Woodson v. North Carolina,
428 U.S. 280, 305 , 96 S.Ct. 2978, 2991-92 , 49 L.Ed.2d 944 (1976);
California v. Brown,
479 U.S. 538, 554 , 107 S.Ct. 837, 845-46 , 93 L.Ed.2d 934 (1987). Mitigating evidence allows the consideration of “compassionate or mitigating factors stemming from the diverse frailties of humankind ... [and] constitutionally indispensable part of the pro
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cess of inflicting the penalty of death.”
Woodson v. North Carolina,
428 U.S. at 304 , 96 S.Ct. at 2991 .
See also Skipper v. South Carolina,
476 U.S. 1 , 106 S.Ct. 1669 , 90 L.Ed.2d 1 (1986);
Deutscher v. Whitley,
884 F.2d 1152, 1161 (9th Cir.1989). The senteneer must “not be precluded from considering,
as a mitigating factor,
any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”
Eddings v. Oklahoma,
455 U.S. 104, 110 , 102 S.Ct. 869, 874 , 71 L.Ed.2d 1 (1982).
See also Lockett v. Ohio,
438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978).
In evaluating counsel’s performance in this case, the court must apply the two part test of
Strickland v. Washington,
466 U.S. 668, 687-88, 694 , 104 S.Ct. 2052, 2064-65, 2068 , 80 L.Ed.2d 674 (1984): 1) that counsel’s performance fell below objectively reasonable standard; and 2) that there is a reasonable probability that the result of the proceedings would have been different.
When a lawyer fails to present evidence in the penalty phase of a capital case, the conclusion that his performance is deficient does not always follow. Counsel, after adequate investigation, may believe that the presentation of other evidence would open the door to damaging rebuttal evidence from the prosecutor,
(Campbell v. Kincheloe,
829 F.2d 1453 (9th Cir.1987)), or might be inconsistent with the overall defense strategy
(Burger v. Kemp,
483 U.S. 776 , 107 S.Ct. 3114 , 97 L.Ed.2d 638 (1987);
Harris v. Vasquez,
949 F.2d 1497 (9th Cir.1990)). Here, however, failure to advance mitigation evidence at the penalty phase was deficient and prejudicial. Cease Dep. at 49.
It cannot be said that absolutely no mitigating evidence was presented in the Harris case. Counsel offered Harris’s testimony explaining his two prior convictions. Vol. 2, VRP 681-89. Harris gave some positive details that he had complied with the terms of probation for two years after the manslaughter conviction; that he graduated from high school; that he worked at Boeing as an inspector and at Safeway as a night stock clerk; that he was married for 11 months and had one male child; and was divorced. Harris testified that his son lived with his mother for several years, later with Harris and Harris’s mother, and after Harris’s mother died in December, 1983, the boy lived with Harris and Abel Lawrence, his stepfather. Harris testified that the boy had been in some criminal trouble and that Harris had supported the boy until Harris suffered a hand injury. He testified about other jobs in which he had been employed, such as foundry work, warehouseman, laborer for General Services Administration. He explained that his hand injury was disabling and prevented him from full employment. Harris spoke of his feelings regarding Turner’s death. “It’s something that should have been avoided. In fact, I was shot at, that night, twice.” “Q. Well, do you have any personal sorrow for it? A. Absolutely.” Vol. 2, VRP 804.
Counsel also called Reverend Earnest S. Brazil, a local minister who testified that he had known Harris for 18-20 years. Rev. Brazil testified that, as a child, Harris and his family attended church regularly but that Harris has not done so since the death of his mother. Brazil stated that Harris seemed “a very nice young man, quiet, respectable, especially toward seniors, as such. And he always have had high respect for me.” Vol. 2, VRP 806. Brazil also stated that he thought Harris was not totally irredeemable and that would be some things Harris could contribute to society if he were incarcerated. Vol. 2, VRP 690-91. None of this evidence was particularly meaningful or effective. It was clear that Rev. Brazil did not know Harris well.
Harris now presents numerous witnesses and documentary evidence which counsel did not present at the penalty phase. There is a large volume of information detailing mental and emotional problems beginning in the first grade of school. Harris has a well documented history of delusional thinking, paranoia, suicidal tendencies, substance abuse, and depression. Stip. Facts Nos. 71 through 81 show that counsel did not interview various family members and thus did not know the full scope of Harris’s delusional beliefs. Harris now presents numerous letters which he wrote to counsel, police officers, court, family members which are re-
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píete with nonsensical information and bizarre beliefs. Ex. H to Stip. Facts. Harris was not evaluated by his own psychological expert as to his mental state. The evaluating team at Western State Hospital was not presented with Harris’s full psychological full background. Positive aspects of Harris’s personality were not explored or presented. The dismissal of the manslaughter conviction, complete with the positive reasons for it, was not presented to the jury.
In Washington, each member of the jury must be convinced that there are no sufficient mitigating circumstances to merit leniency. ROW 10.95.060(4). Thus, one juror can prevent the death penalty. If the defendant can show that counsel’s deficient performance by failing to present other mitigating evidence would have allowed any juror to vote against the death penalty, then he has shown that the result would have been different. This is known as the “effeet-on-one-juror approach,” which was first approved in
Kubat v. Thieret,
867 F.2d 351, 371 (7th Cir.1989), and recently adopted in
Mak v. Blodgett,
970 F.2d at 621 . The Ninth Circuit determined that this approach is consistent with the
Strickland
analysis.
“Strickland
does not stand for the proposition that a court cannot consider the effect of counsel’s deficient performance on a single juror, but rather that the court cannot consider the possibility that a juror would render a decision not based on the law but based on that juror’s idiosyncrasies.”
Id.
There is a reasonable probability that the admission of mitigating evidence about Harris would have caused one or more jurors to believe that death was not the appropriate punishment. This conclusion follows from consideration of the type and content of the available mitigation evidence, and is strengthened by consideration of counsel’s other deficiencies in performance. Certainly, the testimony of many witnesses as to Harris’s successful work history and disability affecting his employability would have bolstered Rev. Brazil’s conclusory statement that Harris could still contribute to mankind. Presentation, after appropriate pretrial investigation, of Harris’s delusional beliefs, mental history, and mental status would have given the jury an additional explanation for Harris’s motive for the murder — that it was an irrational act, and not based on car tampering and debt. Generally, car tampering and debt, even if true, do not lead to murder.
Presentation of this additional evidence would also have allowed the jury to reconsider the impact of some of the evidence admitted in the guilt phase. Counsel’s original strategy of general denial was destroyed by Harris’s admission to the murder the morning of trial. Harris’s statement was unreliable because of his mental condition, and because it was not consistent with available forensic evidence. Admission of that statement in the guilt phase set the stage for the jury in the penalty phase to find that Harris was a liar and a murderer. Counsel, in his closing argument to the jury in the guilt phase removed any shadow of a doubt that Harris was anything less than that.
Allowing admission of the prior conviction of manslaughter without admission of its subsequent dismissal and without a definition of manslaughter fell below objective standards of reasonableness. That evidence led the jury to an erroneous view of Harris’s criminal history, which was capitalized on by the prosecutor without objection.
There is no showing that these failures of counsel were based on a reasoned decision or that submission of mitigation evidence would have resulted in harmful rebuttal evidence. Counsel simply failed to present available evidence, and as a result his representation fell below the objective standard of reasonableness. Such failure is violative of the Sixth Amendment.
See, e.g., Deutscher v. Whitley,
884 F.2d 1152, 1159-62 (9th Cir.1989);
Mak v. Blodgett,
970 F.2d at 621 . Under these circumstances, Harris’s death sentence was almost inevitable.
See, e.g., Evans v. Lewis,
855 F.2d 631, 637 (9th Cir.1988).
Counsel’s failure to present available mitigating evidence during the penalty phase fell below the objective standards of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the penalty phase would have been different, that
*1271
is, the deficiency undermines confidence in the outcome.
Ground O. Counsel failed to raise or preserve meritorious issues in appellate proceedings.
Harris contends that counsel did not raise all the appropriate issues in the direct appeal and therefore, he has been prejudiced in obtaining appellate relief.
A corollary issue is whether, in his motion to withdraw before the appellate proceedings began, counsel should have advised the court that Harris’s strongest ground for appeal may be ineffective assistance of counsel. Counsel’s motion to withdraw did not state any reasons. Vol. 4, CP 1661. The motion was considered in two separate hearings, on January 25, 1985 (Vol. 2, VRP 928-32), and on April 11, 1985 (Vol. 2, VRP 935-40). Counsel was not present at either hearing. Harris was represented by the associate. Although the associate did indicate that there may be an ineffective assistance of counsel claim, no specific reasons for withdrawal were presented to the trial court. The ineffective assistance claim, perhaps Harris’s strongest claim of error, should have been a ground for appeal.
The court also notes that counsel did not correct several inaccuracies in the trial court’s report to the Washington Supreme Court. Vol. 4, CP 1648-60. These inaccuracies are that Harris had high intelligence (CP 1649); very poor work record (p. 3); no reference to the dismissal of the manslaughter conviction (CP 1650) or correction to the statement that counsel had “gotten him off with manslaughter” (CP 1656); no note of the co-defendant Bonds and his disposition (CP 1652); and no clarification of the statement “This was the first of four or five that defendant was contracting to have killed. He has killed before and would do it again.” (CP 1660). These inaccuracies appeared to have been accepted as facts, although there is no clear support for them in the evidence. Counsel’s failure to correct these errors is significant because the trial court’s report can be characterized as factfinding.
See Burden v. Zant,
498 U.S. 433, 436-37 , 111 S.Ct. 862, 864-65 , 112 L.Ed.2d 962 (1991).
Counsel also failed to make an adequate record regarding the proportionality review in the Washington Supreme Court.
Counsel’s failure to raise or preserve meritorious issues in appellate proceedings fell below the objective standards of reasonableness and amounted to a deficient performance. There is not, however, a reasonable probability that, but for this deficiency, the result of the appellate proceedings would have been different.
Ground P. Counsel failed to advise Harris of a conflict of interest.
Harris argues that he and many members of his family had been provided legal services by counsel and counsel’s law firm since the early 1960s. Stip. Facts No. 13. Those services included criminal charges against Harris in May, 1968 (Stip. Facts No. 14); representation of Mrs. Harris by counsel’s partner for a dissolution of marriage in 1968 (Stip. Facts No. 15); criminal charges against Harris for an alleged assault on Mrs. Harris in May, 1969 (Stip. Facts No. 16); criminal charges for murder against Harris in 1968 resulting in a plea to manslaughter (Stip. Facts Nos. 17 and 18); and probate proceedings on behalf of the estate of Bessie M. Robinson Lawrence, Harris’s mother, representing Lawrence, the administrator and widower of Mrs. Lawrence beginning in December, 1983 (Stip. Facts Nos. 21, 22, 12).
Harris’s mother died intestate on December 10, 1983. Stip. Facts No. 20. The probate proceedings continued during the time of counsel’s representation of Harris in the instant case. Harris argues that he and Lawrence had a hostile relationship and Harris believed that Lawrence and other family members conspired in many ways, including the aggravated murder charges, so that he would be eliminated as a heir of any portion of his mother’s estate. Stip. Facts Nos. 24, 28, and 41.
Harris contends that counsel was aware of the animosity between Harris and Lawrence. Stip. Facts Nos. 25, 26, and 49. Harris contends that the legal interests of his stepfather, other family members and himself were adverse, and may explain counsel’s fail
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ure to interview or call family members to testify during the penalty phase of his trial. He also argues that counsel’s failure to put forth evidence of Harris’s troubled family background and relationships, including school and medical records, effectively protected other family members from public and unpleasant scrutiny. Harris adds that counsel failed to seriously evaluate Harris’s statements that the murder charges were brought as a result of a family conspiracy because counsel either believed the family had more credibility than Harris, or that Harris’s fabrication of these events and beliefs was part of his regular delusional mental state, accepted as normal by counsel. As a result, Harris argues, there was a conflict of interest which deprived him of a fair trial and effective assistance of counsel.
The state disputes the allegations that counsel’s representation of Harris’s stepfather in probate proceedings amounted to a conflict of interest. The state argues that because- Harris was an heir to his mother’s estate and Lawrence, as the administrator of the estate, acted in a fiduciary capacity, there was no adverse legal interest between the two men. The state also argues that Harris has not shown that counsel’s representation of Harris was adversely affected by the personal interests of Lawrence.
The Sixth Amendment mandates that a criminal defendant receive effective representation of counsel that is free from conflicts of interests.
Wood v. Georgia,
450 U.S. 261 , 101 S.Ct. 1097 , 67 L.Ed.2d 220 (1981) (conflict found where defendant’s employer paid defendant’s counsel);
Cuyler v. Sullivan,
446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) (conflict of interest with simultaneous representation of prosecution witness and defendant). In a criminal context, the need to protect the criminal defendant from conflict of interest is greater than in a civil case. This is attributed in part to the clients’s stress when confronted with the enormity of the criminal justice system. “[T]he client will be eager to obtain any representation as soon as possible and thus will not be particularly cautious in evaluating a potential conflict even when it has been disclosed.” ABA Standard 4-3.4; Commentary at 4.40. The responsibility thus weighs heavily on both attorneys and trial courts, who are obligated to protect defendants against conflicts of interest.
Id.
If an error is determined, prejudice to the defendant is presumed.
Holloway v. Arkansas,
435 U.S. 475, 490 , 98 S.Ct. 1173, 1181-82 , 55 L.Ed.2d 426 (1978). The reasoning behind this high standard is aptly stated in
Holloway v. Arkansas, supra.
[I]n a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled to
refrain
from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible.
435 U.S. at 490-91 , 98 S.Ct. at 1182 (emphasis in original).
Conflict of interest issues are governed in part by the Code of Professional Conduct for lawyers and cases applying and interpreting the code. Generally, a potential conflict of interest may exist if 1) an attorney’s representation of a client is directly adverse to another client, or 2) an attorney gained confidential information or secrets from a previous client that might be material to the new client’s case. If a potential conflict of interest arises, a lawyer is obligated to fully disclose the material facts of the potential conflict to the client and obtain the client’s written consent to representation after the disclosure.
See
Rules for Professional Conduct, Rules 1.7, 1.8, 1.9 and 1.10. In 1983 and 1984, the rules of professional responsibility were essentially the same, but they were known as the Canons of Professional Ethics. The canons pertaining to a lawyer’s duties when a potential conflict of interest exists were Canons 6 and 37. Canon 6 stated:
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Adverse Influences and Conflicting Interests. It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel.
It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.
The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.
Canon 37 stated:
Confidences of a client. It is the duty of a lawyer to preserve his client’s confidences. This duty outlasts the lawyer’s employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client.
See Kurbitz v. Kurbitz,
77 Wash.2d 943, 944 , 468 P.2d 673 (1970).
Generally, a lawyer owes a client a duty of loyalty that goes beyond the case at issue. The ABA Model Rules of Professional Conduct, Rule 1.7 advises that a lawyer “ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated.”
State v. Hatfield,
51 Wash.App. 408 , 412 n. 1, 754 P.2d 136 (1988). A conflict of interest may be established by “reasonable inference. In this field [legal profession], conduct should not be weighed with hairsplitting nicety.”
Id.
77 Wash.2d at 946 , 468 P.2d 673 . The burden of proving a conflict of interest is not on the client. Rather, the attorney’s right to practice law gives way in cases where there is a question, in order to protect the public interest.
Id.
(quoting
Chugach Elec. Ass’n v. United States Dist. Court for Alaska,
370 F.2d 441 , 444 (9th Cir.1966)). The
Chugach Elec,
decision further held that actual knowledge possessed by an attorney which might be adverse to a client is not the test. “It is sufficient that an appearance of conflicting interests has been made.” 77 Wash.2d at 947 , 468 P.2d 673 .
Two general factors were considered when analyzing conflict of interest issues in the
Kurbitz
decision. One, “whether the matters embraced within the pending suit involving an attorney’s former client are substantially related to matters on which the attorney or someone in his association previously represented the former client”; and two, “if the attorney in the present litigation did not formerly represent the adverse client, but had access to confidential information which is material to the present suit....” 77 Wash.2d at 947 , 468 P.2d 673 (citations omitted). There, the court found a conflict of interest where a lawyer and his law firm represented at various times the following entities belonging to the same family: a husband and wife for a loan against the wife’s mother’s estate, the wife’s mother’s estate, and the wife in a divorce proceeding. A conflict of interest can arise where a lawyer represents an administrator of an individual’s estate and a claimant of the estate.
Id.
The conflict can be resolved when, after full disclosure, the claimant and the administrator agree on the disposition of the claim.
In re Estate of Rakestraw,
28 Wash.App. 585, 586 , 624 P.2d 1175 (1981).
In a criminal context, conflict of interests commonly arise where a lawyer has the opportunity to represent two or more co-defendants. Those rules do not apply here. However, the simultaneous representation of a defendant and a witness with opposing interests can create a conflict of interest situation.
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In re Richardson,
100 Wash.2d 669, 677 (1983) (and cases cited therein).
Here, Harris’s arguments of conflict of interests arise in more than one context. His arguments regarding counsel’s simultaneous representation of Lawrence and Harris can be analogized to that of a personal representative of an estate and a claimant to an estate with an adverse interest.
See, e.g., In re Estate of Rakestraw,
28 Wash.App. 585 , 624 P.2d 1175 (1981). The parties have stipulated that Harris had concerns about the probate of his mother’s estate and believed that Lawrence and other family members did not want him to share in the estate. Stip. Facts Nos. 24, 25, 28, 64, and 74. The parties have also stipulated that counsel and the police were well aware of Harris’s irrational beliefs. Stip. Facts Nos. 25, 41. The adversity between Lawrence and Harris is well documented and at times there were rumors of an attempt on Lawrence’s life. Stip. Facts Nos. 39, 40, 46, and 47. Harris made allegations that his mother had executed a will before her death, that she did not advise her husband of the will but told Harris where it was located. Stip. Facts Nos. 42 and 44. Harris believe that counsel was investigating the existence of the will. Stip. Facts No. 45. These facts appear to demonstrate that Lawrence and Harris had very different, and adverse, views of the distribution and administration of Mrs. Lawrence’ estate. The estate was approximately valued at $150,000 in January, 1984.
See
Ex. B to Stip. Facts.
If Harris’s arguments are viewed from the standpoint of the simultaneous representation of a defendant and a witness, adverse interests can be demonstrated. Counsel failed to interview and call available and willing family members to testify to mitigating circumstances on behalf of Harris. As cautioned in
Holloway v. Arkansas,
435 U.S. at 490-91 , 98 S.Ct. at 1181-82 , the prejudice stemming from conflicting interests may be demonstrated by an attorney’s failure to undertake certain tasks. Counsel’s restraint may have its genesis in confidential information gained through his representation of Lawrence, or Mrs. Linda Harris Carson (Harris’s ex wife who was represented in the divorce by counsel’s partner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1517840. Public record. Not legal advice.