The opinion
DEATH PENALTY CASE
MEMORANDUM DECISION AND ORDER FOLLOWING EVIDENTIARY HEARING GRANTING PETITION FOR WRIT OF HABEAS CORPUS AS TO PETITIONER’S SENTENCE AND DENYING ALL CLAIMS AS TO HIS CONVICTION AND DEATH ELIGIBILITY
ANTHONY W. ISHII, District Judge.
Table of Contents
I. Factual Background.1057
II. Procedural Overview.1059
III. Standard of Review.1059
IV. Ineffective Assistance of Counsel During Penalty Proceedings (Claim 19).1060
A. Summary of the Relevant Facts.1061
1. Pre-Trial Interrogations.1061
a. Ben-Sholom’s First Custodial Interview.1061
b. Ben-Sholom’s Second Custodial Interview.1062
2. Pre-Trial Mental Health Assessments .1063
a. Dr. Richmond’s Summary.1064
b. Dr. Kleist’s Reports.1066
c. Dr. Glenn’s Report .1067
d. Dr. Geshuri’s Report.1069
e. Dr. Rienzi’s Report.1070
3. Pre-Trial, Trial, and Post-Trial Proceedings.1071
a. Summary of Testimony at the Suppression Hearing Regarding Ben-Sholom’s Inderal Use.1071
(1) Ben-Sholom’s Testimony.1071
(2) Phyllis Marshall’s Testimony .1072
b. Mr. Alexander’s Guilt Phase Opening Statement.1072
c. Mr. Alexander’s Guilt Phase Summation.1072
d. Pre-Penalty Phase Discussions.1073
e. Mr. Alexander’s Penalty Phase Opening Statement.1074
f. Penalty Phase Testimony.1074
(1) Phyllis Marshall.1074
(2) Faye Muldworf.1075
(3) Isaac Hull.1076
(4) JudyMayora.1076
(5) Henry Bethany.1077
(6) Ben-Sholom.1077
g. Penalty Phase Stipulated Evidence .1077
h. Mr. Alexander’s Penalty Phase Summation .1077
i. Penalty Phase Deliberations .1078
j. Ben-Sholom’s Motion for Modification of the Death Verdict.1079
4. Evidence Presented by Ben-Sholom at the Evidentiary Hearing.1080
a. Roger Alexander.1080
b. Anthony Casillas.1085
c. Gary Wynbrandt, M.D.1087
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d. Phyllis Marshall. 1090
e. Beth Rienzi, Ph.D. 1091
f. Neil Pereira. 1093
g. Phillip Cherney . 1094
5. The Warden’s Response to Ben-Sholom’s Evidence. 1099
a. Yosef Geshuri, Ph.D. 1099
b. James Richmond, M.D. 1103
6. Ben-Sholom’s Rebuttal . 1107
a. Dr. Wynbrandt. 1107
b. Mr. Park. 1110
7. The Warden’s Evidence. 1113
a. Report and Declaration of Roger Alexander. 1113
b. Prosecution Trial Exhibit Photographs. 1114
c. Request for Judicial Notice. 1115
(1) Frierson Order. 1115
(2) Baranyi Transcript. 1115
8. Ben-Sholom’s Post Evidentiary Hearing Motion to Augment the Record. 1116
a. Dr. Froming’s Declaration in Response to the Warden’s Request for Judicial Notice. 1116
b. Defense Trial Exhibit Photographs . 1117
B. Analysis. 1117
1. Performance. 1117
a. Inadequate Investigation of Substantial Domination, Severe Mental and Emotional Disturbance, and Mental Disease or Defect . 1118
b. Failure to Provide Mental Health Experts with Social History Information Necessary to Secure a Competent Psychological Evaluation. 1122
c. Failure to Request Expert Opinions about Statutory Mitigating Factors . 1124
d. Failure to Present Non-Expert Testimony Supporting Possible Statutory Mitigating Factors. 1124
e. Failure to Present Expert Testimony to Explain Mitigating Factors and Concepts to the Jury. 1126
f. Failure to Request Jury Instructions on Statutory Mitigating Factors . CO <N1 1“I 1 — 1
g. Failure to Present a Cogent Penalty Phase Summation. Os 05 tH 1 — i
2. Prejudice. i — ( CO 7 — ( T — I
V. Trial Error for Failure to Instruct, Sua Sponte, on the Substantial Domination Sentencing Factor under Penal Code § 190.3(g) (Claim 16)-1140
VI. Juror Misconduct for Prejudging the Penalty (Claim 22).1141
A. Summary of the Relevant Facts.1141
1. Trial Proceedings .1141
2. Pre-Evidentiary Hearing Offers of Proof.1141
3. Evidence Adduced at the Evidentiary Hearing.1142
B. Analysis.1144
VII.Juror Misconduct for Receipt and Consideration of Extrinsic Evidence (Claim 23) .1144
VIII. Disproportionality of the Death Sentence (Claim 27).1145
IX. Challenge to Fair-Cross Section Requirement (Claim 14) .1146
X. Order.1147
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I. Factual Background.
This case involves the tragic murder of Silva Teague, a middle-aged homemaker in rural Visalia. Mrs. Teague was shot to death in her home on Wednesday, January 23, 1985 during a burglary-robbery of weapons by Petitioner Chay’im Ben-Sho-lom
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(“Ben-Sholom”) and two companions. It is undisputed that Ben-Sholom fired four bullets into the base of Mrs. Teague’s skull as she lay face down in her bathroom. At the time, Ben-Sholom was about six weeks shy of his 19th birthday.
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It is further undisputed that Ben-Sholom, at the time of the killing was involved in what he perceived as a “military mission” with the ultimate purpose of obtaining weapons he and his companions would use as members of the Karen National Liberation Army in the country of Burma (now Myanmar). Ben-Sholom’s companions were John Calhoun, a young man of Ben-Sho-lom’s age, and Christopher Seaman, who was a few years older. According to Ben-Sholom’s account of the offense, Seaman was the “commander” of the “mission,” Calhoun was next in command, and Ben-Sholom was the “point-man” who was to “take any shells” that might be fired from the house and carry out the orders. Seaman was in charge of the “mission” because he knew where the guns were kept in the Teague residence. The break-in was planned for mid-afternoon because no one was supposed to have been home. Ben-Sholom’s understanding was that the order to kill Mrs. Teague emanated from Seaman and was communicated to him by Calhoun. Ben-Sholom shot Mrs. Teague in the manner he did to ensure her death would be painless and instantaneous.
The three young men left with five weapons taken from the Teague residence. They planned to go to Mexico and from there to El Salvador or somewhere in South America where they then would proceed to Asia. The were apprehended in Needles, California, near the Arizona state line at approximately 1 p.m. on Thursday, January 24, 1985. Shortly after his booking, Ben-Sholom was transported to an area hospital emergency room by local authorities for treatment of high blood pressure. The anti-hypertensive medication, Inderal, was administered.
Investigative questioning of the three young men commenced late that same night, after Sheriffs deputies from Tulare County arrived in San Bernardino County. Of the three suspects, Ben-Sholom was last to be questioned. His interrogation began at 1:15 a.m. on Friday, January 25, 1985, after he was awakened from his sleep. During the tape-recorded interview, Ben-Sholom described the offense in terms of a military mission and expressed regret in having been prevented from going to Burma to fight the Communists has he had planned. Later that day, during business hours, Tulare County officials obtained and served arrest warrants on the three suspects, who were then transferred to the main San Bernardino County Jail where they remained until a Tulare County Sheriffs van came to collect them. The van was dispatched from Tulare on Sunday, January 27, 1985. On Monday, January 28,1985, the suspects were returned to Visalia, the county seat for Tulare County.
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On that day, however, they were not arraigned. Instead, each was re-interviewed by Sheriffs investigators. In Ben-Sholom’s second custodial statement, which again was tape-recorded, he recounted how the robbery plan was conceived and what the plans were. He also graphically explained how he shot Mrs. Teague. That same day, Monday, January 28, 1985, the District Attorney’s Office hired psychiatrist James R. Richmond, M.D. to interview Ben-Sholom. Dr. Richmond was retained by Deputy District Attorney Patrick O’Hara to determine whether Ben-Sholom would be able to pursue a psychiatric defense at trial.
At trial, and to a much greater extent on federal habeas, Ben-Sholom is portrayed as a lost soul, who, as the result of severely abusive treatment at the hands of his father, Lonnie Marshall, and abandonment by his mother, Phyllis Marshall,
3
had no real will or sense of identity of own. Initially raised by his Jewish and rather permissive mother, his authoritarian and antiSemitic father did not become a sustained part of his life until Ben-Sholom was seven and a half years old, when his parents married.
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Ben-Sholom’s childhood was turned upside down almost immediately. Mr. Marshall exerted his control and dominion over his wife and son by moving the family to an isolated small town, subjecting them both to physical violence, and persisting in psychological cruelty. The abuse was pervasive and constant. In response, Ben-Sholom began running away from home when he was in junior high school. There also is evidence that Ben-Sholom began hurting (mutilating and killing) animals as an expression of his rage at his father’s abusive treatment of him. The record reflects that about this time, Ben-Sholom began psychological counseling at Kings View Mental Health Center in Visalia. The therapy, however, did not ameliorate Mr. Marshall’s abusive treatment of his son, and Ben-Sholom continued to run away from home.
When Ben-Sholom turned 17, he finally was able to pursue his dream of enlisting in the United States Army. As a result of an ankle injury he sustained on one occasion when he ran away from home, however, he was unable to continue with the rigors of boot camp. The ankle injury and ensuing arthritis created an insurmountable disability. He was honorably discharged based on his adverse medical condition. When he returned to Visalia after his discharge, he drifted aimlessly, looking for something to belong to and fantasizing about becoming a mercenary. His companions at this time have been described as a “rough crowd.” In February of 1984, a month before his 18th birthday, Ben-Sholom burglarized his mother’s house. The juvenile court adjudication found that he had committed second degree burglary and released him to the custody of his father (with whom he was living at the time). Prior to the adjudication, he spent five nights in Juvenile Hall. It was at this time that Ben-Sholom met and befriended John Calhoun. Later, Calhoun introduced him to Chris Seaman, who like Ben-Sho-lom was interested in guns and being a mercenary.
During this period following the juvenile adjudication, Ben-Sholom also experienced extreme hypertension and in July 1984, was placed on high blood pressure medi
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cation, Inderal. In September of that year, he accepted a dare and jumped off the roof of the Sequoia Mall, badly breaking his wrist in the process. In December, about a month before the offense, he tried to commit suicide by ingesting an entire bottle of Inderal.
Examiners have documented that Ben-Sholom gravitated toward widely divergent types of peer groups. On the one hand, he “hung out” with teenagers who used drugs and engaged in undisclosed types of “delinquent” behavior, while on the other, he expressed an interest in being part of traditionally wholesome family type groups. He disclosed early and frequent heterosexual relations as well as one broken engagement, said to have had a devastating effect. One of his examiners, however, disputes the significance of the engagement breakup. In contrast, she found Ben-Sholom had developed an interest in and was experimenting with homosexuality. His pre-offense depression was said to be exacerbated by the ending of a homosexual relationship.
II. Procedural Overview.
On October 5, 2001, the Court ordered a limited evidentiary hearing to explore Ben-Sholom’s allegations of ineffective assistance of counsel during penalty phase proceedings (Claim 19) and juror misconduct for prejudging the penalty (Claim 22). The hearing was conducted on February 4, 5, 6, 7, 11, and 12, 2003, with evidence presented by both Ben-Sholom and Respondent Robert L. Ayers, Jr., as Warden of San Quentin State Prison, (the “Warden”).
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Specific issues were reserved pending the evidentiary hearing, notably, juror misconduct for the receipt and consideration of extrinsic evidence (Claim 23) and the impropriety of the death sentence in light of mitigating evidence which could have, but was not presented (Claim 27). Ben-Sholom also raises the trial court’s error for not sua sponte instructing on the substantial domination sentencing factor (Claim 16) as a reserved claim. The claims on which an evidentiary hearing was granted and the reserved issues, including Claim 16, are now before the Court. One additional claim, challenging the systematic exclusion of Hispanics from Ben-Sholom’s venire (Claim 14), also is reviewed in this Memorandum Order due to the withdrawal of a Ninth Circuit decision previously relied on by the Court in denying relief on the claim.
III. Standard of Review.
Ben-Sholom commenced this federal ha-beas action on August 10, 1993 by filing an application for appointment of counsel. He filed his initial petition on October 12, 1995.
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Under controlling United States Supreme Court precedent, it is the filing of “an application for habeas relief seeking adjudication on the merits of petitioner’s claims” that triggers applicability of the Anti-terrorism and Effective Death Penalty Act of April 24, 1996 (“AEDPA”).
Woodford v. Garceau,
538 U.S. 202, 207 , 123 S.Ct. 1398 , 155 L.Ed.2d 363 (2003). Since Ben-Sholom’s October 12, 1995 petition, which constitutes a substantive pleading seeking adjudication on the merits, was filed before the enactment of AEDPA, pre-AEDPA law, under former 28 U.S.C. § 2254 , is controlling.
Id.
Former 28 U.S.C. § 2254 (d) directs that
written
state findings are presumed correct:
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In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indi-cia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding 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;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceedings; 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 concludes that such factual determination is not fairly supported by the record.
Both mixed questions of law and fact and pure questions of law are reviewed
de novo. See Thompson v. Borg,
74 F.3d 1571, 1573 (9th Cir.1996). A state court’s determination of lack of prejudice is a mixed question of law and fact, because although historical facts found by state courts are entitled to a presumption of correctness under (former) § 2254(d), when state courts apply legal standards to historical facts, those decisions are not factual findings, and accordingly are subject to
de novo
review.
Id.
IV. Ineffective Assistance of Counsel During Penalty Proceedings (Claim 19).
In deciding to explore further the issue of ineffective assistance of penalty phase counsel, the Court reviewed the trial evidence (guilt and penalty), the argument of counsel (guilt and penalty), and numerous offers of proof. Review of these materials revealed that although Ben-Sholom’s trial counsel, Roger Alexander, consulted with five mental health experts during trial preparation, he presented no expert testimony at penalty proceedings. At the evi-dentiary hearing, the Court considered evidence to explore whether Mr. Alexander’s decision not to present expert testimony was the result of reasonable strategic planning. In addition the Court considered the evidence which Ben-Sholom claims should have and could have been presented at his penalty phase trial to convince the jury not to sentence him to death. The Warden countered Ben-Sholom’s evidence with his own experts, and Ben-Sho-lom presented rebuttal evidence. The Warden also presented his own evidence
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partially presented at the evidentiary hearing and partially in a request for judicial notice. Ben-Sholom responded with a request to augment the record.
A. Summary of the Relevant Facts.
Although the Court previously has set out a comprehensive summary of trial proceedings and post-conviction declarations presented on federal habeas,
see
Part Y.A., October 5, 2001 Order at pp. 10-79, selected pre-trial interrogations, pre-trial mental health assessments, and trial proceedings (including some not previously summarized) are summarized (and in some cases re-summarized) to give context to the evi-dentiary hearing testimony and relevant documentary evidence.
1. Pre-Trial Interrogations.
Ben-Sholom’s custodial interviews were the first indications that he believed the crime to be a necessary part of a larger plan to join the Karen National Liberation Army and fight Communists in Burma. His intensity and sincerity prompted both the prosecutor and defense counsel, Mr. Alexander, to arrange for mental health assessments.
a. Ben-Sholom’s First Custodial Interview.
Regarding the overall “mission,” Ben-Sholom explained that Chris Seaman told John Calhoun and him of “this place [the Teague residence] and coerced us pretty much to do it .... [t]o go in and remove the weapons from the house [where] there wasn’t supposed to be anybody home.” Exhibit 16 to Petition. He recounted that the incident took place at approximately “1500 hours” based on a plan that was conceived a pizza restaurant that same afternoon. The purpose of the “mission” was to obtain weapons so the three young men could go to Burma and join the Karen National Liberation Army to assist with the effort of the indigenous people to obtain independence from Communist oppression. Ben-Sholom stated he had been planning to go to Burma on a March 16th flight out of Los Angeles International Airport.
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Seaman intervened in his plans so they would leave from Central America instead.
Ben-Sholom arrived at the Teague residence on his motorcycle while Calhoun and Seaman arrived in Seaman’s jeep. Ben-Sholom was given Seaman’s .357 magnum and was told to go into the house first. The others were to follow. Ben-Sholom knocked on the door and Mrs. Teague answered. She tried to close the door on him, but he forced it open. He then waited for Calhoun to enter. While Calhoun was collecting weapons, Ben-Sholom kept guard over Mrs. Teague. It was Seaman who told Calhoun and Ben-Sholom where the weapons, belonging to Alva Teague, Mrs. Teague’s son, would be located.
After the weapons were collected, Calhoun “gave the order” for Ben-Sholom to take Mrs. Teague into the bathroom and shoot her. Ben-Sholom did so, shooting her in the base of the skull as she was lying face down in the bathroom. He did not strike her in any way. He stated that Seaman was “commanding the mission.” The whole incident, from entry, killing Mrs. Teague, loading the stolen weapons in Seaman’s jeep, and departing took about 7 to 8 minutes.
Ben-Sholom reiterated during the interview that Mrs. Teague was not supposed to have been there and that there was no
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contingency plan in the event someone was home. He stressed that Seaman came up with the idea for the mission. He also stated that he believed Seaman knew Mrs. Teague was killed because “he was the one who told John [Calhoun]” and then Calhoun told him. Ben-Sholom then agreed with the interrogating officer that the reason Mrs. Teague was “eliminated” was because she was a witness.
After the incident, Seaman and Calhoun left in Seaman’s jeep. Ben-Sholom left on his motorcycle. Ben-Sholom then sold the motorcycle for $150. He described the sales transaction as having occurred at “1600 hours.” Afterwards, Ben-Sholom and his companions proceeded south on highway 99 to highway 58 and spent the night in Tehachapi because the jeep had mechanical problems.
Ben-Sholom displayed irrational sincerity about his military and political goals to his interrogator:
Q. Do you affiliate yourself with any organization outside of this country?
A. At this point in time, no.
Q. Okay, have you ever affiliated yourself with any organization within this country?
A. I cannot divulge this information at this time or anytime in the future.
Q. Okay, okay. Have you ever affiliated yourself with any organization outside of this country?
A. I can’t answer that question.
On the subject of remorse, Ben-Sholom related his primary regret was in being permanently prevented from going to Burma. With respect to Mrs. Teague, he responded that he did feel remorse, but that “she’s at peace at last.”
b. Ben-Sholom’s Second Custodial Interview.
Ben-Sholom’s second interview was conducted three days after the first, after he and his companions had been transported back to the Tulare County Sheriffs station in Visalia. Exhibit 17 to Petition. He revealed that the first conversation about taking weapons from the Teague residence occurred at the pizza restaurant the night before the crime. Seaman came up with the idea. As far as the actual execution of the “mission,” Ben-Sholom and Calhoun were to go into the residence to collect the weapons in places Seaman said they would be found. Seaman stayed outside. The theft was to occur about “1500 hours.” He explained he didn’t know why they didn’t all travel to the Teague residence in the jeep and why he was directed to take his motorcycle.
During this interview, he stated that before going into the house, the three young men discussed the possibility that someone might be home. Ben-Sholom agreed with his interrogator that there was “a commitment” among the three young men that if anyone was home that person would be “eliminated.” Ben-Sho-lom stated he didn’t know why, but guessed, in answer to the interrogator’s questions, it was because they didn’t want any witnesses.
When Calhoun entered the house, Mrs. Teague was sitting on the couch, where Ben-Sholom told her to sit. Calhoun then directed that she should lay down in the hallway. Then, he instructed Ben-Sholom to take Mrs. Teague in the bathroom. Ben-Sholom explained, “That’s what he told me and I just, that’s what I did,” but he guessed it was a matter of convenience so Calhoun didn’t have to walk over her in the hallway while he was collecting weapons. Ben-Sholom explained that the signal from Calhoun for him to kill Mrs.
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Teague was conveyed by Calhoun drawing his index finger across his throat.
Ben-Sholom described shooting Mrs. Teague graphically: “I put a flash suppressor to the base of the skull and I tilted it back just a little back for the angle so I’d come through right about the bridge of the nose, so I’d get a clear trajectory through her brain.” He explained he did it in this manner because: “I didn’t want to hurt her, I didn’t want her to feel any pain, I wanted it to be over before she even knew it happened, so I made sure that I had a clear, the bullet had a clear trajectory through the brain.” He stated he was sure he killed her after the first shot, but that he fired off three or four more rounds to make sure. On further explanation he explained that the manner in which he shot Mrs. Teague was “a variation of the move that [he] was taught to kill, with a knife.” He explained, “you bring a person’s skull back like this, using your pinky at the base of the eyebrow, you bring it back and insert the blade in sideways and then twist to the right and to the left and pull it out.” He said he learned this “move” in private training “received from other groups of people.”
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After the shooting, Ben-Sholom and Calhoun gathered up the weapons, except a couple of air rifles and the .22 rifle used to kill Mrs. Teague. He explained these weapons were left behind because they would be of no use in the jungle. When they stopped in Tehachapi, they did not celebrate; they ate and slept. They didn’t feel like they had accomplished anything. During the interview Ben-Sholom stated he felt a “little unsure” mentally, but was not delusional. When they were apprehended, they had only a quarter of tank of gas and no gas cans. They were still 300 miles from the Mexican border.
He was questioned about remorse:
Q. The other night I asked you if you felt any remorse or any regret for your actions. How do you feel now[?]
A. Very disturbed.
Q. Meaning that you do regret ...
A. Yeah, it’s beginning to bother me really bad.
Q. Do you feel bad now that the lady died?
A. Yes, I do.
Q. Do you feel badly that you killed her?
A. Yes, I do.
Q. Okay, if you had it to do over again, would it happened the same way?
A. No.
Q. Okay, if you had it to do over again, would you even commit the theft?
A. No, it wasn’t, it wasn’t definitely not, nothing is worth a person’s life.
Ben-Sholom confirmed, however, that at the time he killed Mrs. Teague he was fully aware of what he was doing.
2. Pre-Trial Mental Health Assessments.
Prior to Ben-Sholom’s trial, he was interviewed by seven doctors. Five of those doctors were retained to assess Ben-Sho-lom’s mental state. The first doctor to examine Ben-Sholom was Dr. Richmond, on January 28, 1985, at the request of the prosecution. The second evaluation was requested by Mr. Alexander and conduct
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ed by psychiatrist/ neurologist Frank W. Kleist, M.D. on February 26, 1985. Dr. Kleist re-interviewed Ben-Sholom on March 18, 1985. The next mental health assessment was conducted by psychiatrist/ neurologist, Trevor D. Glenn, M.D. on September 17, 1985. Dr. Glenn’s assessment was followed by two additional interviews, by clinical psychologists Yosef Geshuri, Ph.D. on October 6, 1985, and by Beth Rienzi, Ph.D. on October 29 and 30, 1985. No findings, opinions, or conclusions were presented to the jury by any of these doctors.
a. Dr. Richmond’s Summary.
Dr. Richmond took notes of his January 28, 1985 interview but he did not write a report. The notes are compiled and attached as Exhibit 19 to the Petition. Instead, on December 20,1985, approximately 11 months after Ben-Sholom’s arrest and Dr. Richmond’s interview of him, Mr. Alexander took the doctor’s deposition. A copy of the deposition transcript is attached to the Petition as Exhibit 20. Dr. Richmond explained that he had been hired by the District Attorney to give an opinion, as close to the crime as possible, as to whether he believed Ben-Sholom could pursue a psychiatric defense, in particular, an insanity defense, at trial. To prepare for the interview, Dr. Richmond reviewed the investigation report and listened to both of Ben-Sholom’s taped confessions. During the one hour and 45 minute interview Dr. Richmond conducted, Ben-Sholom was alert, but tense. He cracked his knuckles when talking about the offense and was near tears repeatedly.
Dr. Richmond recounted that Ben-Sho-lom was raised as an only child until the age of eight (when his mother and father married). Before that, Ben-Sholom’s mother spent time working and dating. Ben-Sholom reported she never developed a close relationship with him. His father was overweight, cruel, sadistic, and very mean. When he came into the household, he tried to force respect. He threw out all of Ben-Sholom’s possessions, including toys and games. Ben-Sholom didn’t know how his mother felt about this, but he felt hatred and he wanted his father dead. At the time Dr. Richmond interviewed him, Ben-Sholom still wanted his father dead. Ben-Sholom reported feeling sad about the parental rejection he experienced.
Ben-Sholom killed animals for food. He also raised and killed rabbits for their hides and rabbit’s foot key chains. As a student, he fought more in high school than in elementary school. He reported that when he was in the fifth or sixth grade, he injured another student so severely the child had to be hospitalized for two months. He described that the put his fingers in the other child’s eyes and banged his head on the “monkey bars” in order to break the his skull. Dr. Richmond testified at the deposition he did not inquire about supporting details regarding this incident to ascertain whether it really occurred or Ben-Sholom was fantasizing.
To fulfill a life long dream of being in the Army (since age five), Ben-Sholom enlisted on his 17th birthday. He told his parents he would blow himself and the family up if they didn’t sign the forms to allow him to join. He was “relieved” of service on September 9, 1983 due to an ankle injury. Ben-Sholom was “lost” when discharged. He began to look for mercenary groups to find war elsewhere, which might result in death. He became fascinated with war books, particularly tactics and logistics. He played “war” with John Calhoun in the high brush area near his home, using a variety of weapons. He boasted about being able to identify, strip, and load most weapons that existed in the world. He claimed to have been taught by
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unnamed paramilitary groups about jungle fighting and “silent kills” using knife maneuvers.
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Ben-Sholom made it clear he had never before killed a person.
Dr. Richmond testified at the deposition that the information Ben-Sholom provided appeared to be largely spontaneous. Ben-Sholom did not appear to be exaggerating, but boastful of his extensive knowledge and fascination with weaponry. Dr. Richmond did not inquire further to ascertain whether the experiences Ben-Sholom related were real or fantasy. Dr. Richmond had the impression that Ben-Sholom was relating real experiences because the details given were fairly organized. He conceded that if the facts relayed had been fantasy, but Ben-Sholom believed the incidents had occurred, it is possible Ben-Sholom could have related them in the same calm, clear manner.
The crime was thought of as a “mission” to obtain guns so Ben-Sholom and his companions would be “accepted by some independent mercenary fighting force.” The three young men intended to spend time in Central America at some kind of boot camp and then proceed to Asia. Ben-Sholom told Dr. Richmond that Seaman had “inside information” that they would be accepted in El Salvador to fight the Sandinistas. Again Mr. Alexander confirmed that Dr. Richmond asked no questions to verify whether the information regarding them proposed acceptance into the military forces to fight the Sandinistas was truth or fantasy.
When Mrs. Teague was obedient and called Ben-Sholom “sir,” it agitated him because he never wanted to be an officer. He wanted to be a soldier — an order taker, not an order giver. Before entering the Teague residence, he stated he planned to kill anyone in the house. He saw Mrs. Teague before entering and was committed to killing her. He said, “The unit was committed.” He would have been satisfied to tie Mrs. Teague up and leave her there. The order to kill her came from Calhoun, who in turn received the directive from Seaman. Ben-Sholom doubted Mrs. Teag-ue thought she was going to be killed. She showed no fear and did not plead. He had not thought about taking someone’s life and what that would mean to the victim. At that point, it was just a military maneuver. Afterward, he felt as if he were another person watching himself, as if on television, or reading a book. He said he wouldn’t have killed Mrs. Teague in the state of mind he was in when he was talking to Dr. Richmond. He reported that what he had done “wasn’t right.” He reported to Dr. Richmond that he wished he could trade places with Mrs. Teague, to end his own pain and suffering. He said that if he had been taken care of as a child and youth, or if he had been dead, the crime wouldn’t have happened. He told Dr. Richmond that he wanted to be sentenced to death for the crime because he felt really guilty about it — that it shouldn’t have happened. He was, at the time of the interview, suicidal. He was fearful of being in prison where he would be completely unarmed, in a hostile environment, with no “back up” or friends.
He related that he had an uncle who experienced auditory hallucinations and had a “real bad mental problem.” He also reported past incidents where he hurt himself, including intentionally overdosing on
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Inderal, jumping off the Sequoia Mall, and playing “chicken” with diesel trucks on major highways. He stated he was depressed 95% of the time and began to have suicidal thoughts at age nine to ten. He also reported that he started experiencing blackouts six months prior to the crime, but denied a past diagnosis of epilepsy or seizures. Dr. Richmond testified he thought the reported blackouts could correspond to a mental condition called “detachment” or be related to Ben-Sholom’s increased alcohol usage or brief organic episodes. After the interview, Dr. Richmond was “satisfied [Ben-Sholom] was not in a psychotic state, but that he had completely detached any feelings or displaced — or he was just kind of operating without significant feelings.” He felt that what Ben-Sholom described was that he had entered into a military exercise after struggling with himself not to feel anything. He concluded that at the time of the crime, Ben-Sholom
was operating rationally, that he was able to see and understand and make decisions based on what was really happening around him and he was very much caught up in some of his desire and beliefs about being in the process of becoming a mercenary, and that what he was doing was — I guess you would say, in a sense justified as a military operation in preparation to accomplish his long-range goal of being or becoming a mercenary.... [The crime was] part of what you’ve got to do ... in order to become a mercenary.
b. Dr. Kleist’s Reports.
In Dr. Kleist’s first, February 26, 1985, report, he stated that no information about Ben-Sholom’s background was provided. Exhibit 21 to Petition. Rather, Dr. Kleist reported that Ben-Sholom provided his own background information. Ben-Sho-lom told Dr. Kleist he “was reared by an autocratic, extremely abusive father and a submissive, unprotecting mother.” Ben-Sholom described his hatred for his father, his medical discharge from the Army, his subsequent breakup with his fiancee a little more than a year before the offense, his fascination with weapons, his obsession with vengeance and infliction of pain, and his connection with John Calhoun and Chris Seaman. Ben-Sholom described himself and his co-perpetrators to Dr. Kleist “as the best guerrilla fighters in the world,” he said that he had “friends and/ or relatives of the family” listed as MIAs, he expressed fear that his enemies “could hunt him down in jail, or get some of his relatives,” he claimed that his father tried to kill him when he was a child, and he admitted he “slaughtered animals, ripped the head off of a cat, injured dogs, broke tree limbs.”
Dr. Kleist was impressed with Ben-Sho-lom’s totally emotionless demeanor. “He spoke in a mechanical, stilted fashion.... His intense preoccupation with structured violence through military activities and his obsession with sadistic expressions of revenge and violence defie[d] logic.” Dr. Kleist noted that Ben-Sholom gave the impression of “cold-blooded ruthlessness and seem[ed] to relish the listener’s repugnance as he [went] into graphic detail about means of torture and expressions of rage.” Ben-Sholom took pride in “adhering to the military mentality of unquestioning loyalty and unhesitating execution of orders.”
Dr. Kleist reported he was not certain whether the “facts” relayed by Ben-Sho-lom might have been “an extremely well structured delusional system of a persecu-tory sort,” and whether the abuse at the hands of his father was exaggerated. Ben-Sholom admitted to feeling so much rage at the time of the interview, he could “rip the guard’s head off.” He bragged
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about being able to “pull a pumping heart out of a person’s chest.” Dr. Kleist felt that Ben-Sholom denied feelings of depression because it was not becoming.
Dr. Kleist regarded Ben-Sholom “as dangerous” since his judgment was “strongly influenced by his paranoid outlook and his intense feelings of hatred.” In the diagnosis section of his report, Dr. Kleist stated: “It is clear we are dealing with a mentally disturbed man.... I would regard him as having a severe paranoid personality disorder associated with a probable anti[-]social personality.” Dr. Kleist found Ben-Sholom’s “exaggerated preoccupation with violence and revenge simply staggering.”
In the second interview on March 18, 1985, Ben-Sholom discussed his distress over the loss of his girlfriend/ fiancee in late 1983. Exhibit 22 to Petition. He recounted to Dr. Kleist nightmares where he was “tearing her tissues apart, breaking her fingers, pulling her joints from their sockets.” Ben-Sholom denied he was feeling turmoil from the loss of this relationship at the time of the offense. He told Dr. Kleist he had overdosed on Inderal and three weeks before the offense had “played chicken” with diesels on the highway and ran across train trestles “more or less inviting death.” In his report Dr. Kleist confirmed that based on an interview with Ben-Sholom’s mother, Ms. Marshall, the abuse Ben-Sholom discussed in the first interview was not exaggerated.
c. Dr. Glenn’s Report.
Dr. Glenn examined Ben-Sholom on the issues of criminal responsibility and sentencing six months later, on September 17, 1985. Exhibit 24 to Petition. Unlike Dr. Kleist, Dr. Glenn was able to review transcripts of Ben-Sholom’s taped custodial statements, as well as transcripts of the custodial statements given by Ben-Sho-lom’s co-perpetrators, John Calhoun and Chris Seaman. He also reviewed Ben-Sholom’s Kings View counseling records. Further background information was obtained from Ben-Sholom, himself, including the history of his sickly condition as a young child, the abusive environment and resulting paternal hatred in his youth, his cataclysmic enlistment in the Army, his interest in paramilitary activities, and his participation in the offense. When Mr. Marshall moved in with Ben-Sholom and his mother, he (Mr. Marshall) assumed the role of a “dictator” and there was a “declaration of war” when Mr. Marshall discarded Ben-Sholom’s toys. Mr. Marshall forced his religion of Jehovah’s Witnesses on Ben-Sholom and his mother soon after the family moved from Riverside to Paradise, California. Ben-Sholom resisted. He reported that his mother had raised him to be independent. On one occasion when Mr. Marshall arrived home from work, Ben-Sholom was arguing with his mother about going to a meeting of the Jehovah’s Witnesses. Mr. Marshall beat Ben-Sholom with a thin leather strap, which Ben-Sholom explained left welts on his legs and buttocks. He recounted to Dr. Glenn that he was beaten by this father for telling the truth and at least once a week on “general principle.” Eventually, Mr. Marshall lost his job in Paradise and the family moved to Fresno for a short time and then to nearby Dinuba where Mr. Marshall finally secured a job. Dr. Glenn reported that in Dinuba, as well as in Paradise, Ben-Sholom was left alone quite often. When he was in the fifth grade in Dinuba, he slashed his wrist accidentally and sought help from a neighbor for emergency medical treatment. At this time, Mr. Marshall began giving him a “back hand” to the face “with a closed fist.”
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By the time he was about 13, Ben-Sholom started accepting the Jehovah’s Witness faith, as his father started to drop out. Also at this time, Ben-Sholom started running away from home following severe beatings and threats of beatings from his father. Either Ben-Sholom or his mother, or both, would be beaten on nearly a daily basis. Ben-Sholom feared death and annihilation. He reported that on several different occasions, he was taken into protective custody and safe houses. He admitted to hurting animals after being beaten by his father. When he was 14, Ben-Sholom reported that he felt suicidal over the break up with a girlfriend.
The next year, Ben-Sholom ran away from home to visit his older half-brother (on this father’s side). His encounter with his brother led to a motorcycle accident which broke his ankle (and ultimately led to the disability requiring his discharge from the Army). He expressed anger and frustration at his life with his parents. He attended counseling sessions at Kings View. His temper by this time was very short. He was disciplined at school for carrying a knife and explained to Dr. Glenn he promised himself if he “ever drew that knife, he would draw ‘blood.’ ”
With respect to the Army, being part of the military had been a life goal for Ben-Sholom. It would have allowed him to escape his horrible family life, to have a purpose, and to marry his high school girlfriend. When he was determined to be medically unable to complete basic training exercises, he was “stunned.” Dr. Glenn reported that tears came into Ben-Sho-lom’s eyes at this point of the interview and “the tone of the whole interview changed.” The end of his hoped for military career also led to the end of his relationship with his girlfriend, and the end of his life. He had no direction after being separated from the military. He intermittently worked at fast food restaurants, used drugs, engaged in dangerous activities (jumping off the Sequoia Mall and being involved in fights), and he flirted with criminal activity, including once burglarizing his mother’s house and stealing cars.
10
He told Dr. Glenn he wanted “out” and he began using marijuana, alcohol, and hash.
In 1984, when he was 18, Ben-Sholom learned about the Karen National Liberation Army, perhaps from
Soldier of Fortune Magazine.
He saw this as a chance to start a new life outside of the United States and get involved in military activity. He waited to find someone to help him get partway across the country, and in the interim worked off and on. About this time, he began experiencing marked symptoms of hypertension and anxiety attacks. After he had a prescription for Inderal, he tried to commit suicide by overdosing on the drug. Finally, Ben-Sholom found an ally in John Calhoun for his paramilitary quest to join the Karen National Liberation Army. A few days before the offense, Calhoun introduced Ben-Sholom to Chris Seaman, and together they “cooked up a scheme,” as Dr. Glenn phrased it, to obtain weapons and money so they could fight in a war. Ben-Sholom described his paramilitary training from a paramilitary gun club whose members sought him out “when they heard about some of the things that he was doing.”
11
They trained him in the use of exotic weapons. He admitted that
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bamboo pits at the river were built in June 1984 by Calhoun, another friend Brett Thompson, and himself.
Ben-Sholom described the offense in military terms. He and his companions “treated it like a war.” Ben-Sholom served as the “point man,” that is the person designated to take “any shells” that might have been fired from the house. Ben-Sholom told Dr. Glenn that after entering the Teague residence, before Calhoun and Seaman, he was fearful because he didn’t have “any back-up.” In his account of the offense, Ben-Sholom related that he “took the lady [Mrs. Teague] to rooms and tried to find [valuable] coins that weren’t there.” Eventually, Calhoun told him to take Mrs. Teague to the bathroom and then gave him the order to kill her. He explained he always had been taught to “follow through,” both from his father, from the Army, and from the paramilitary training. At the time of the offense, he described himself as “washed.” He was tired of caring for himself. He had “died inside.” He told Dr. Glenn he would have followed any orders that had been given, including being told to go to the Mall and shoot everyone in sight. At the time of the crime, Ben-Sholom had been rejected by everything he loved or cared about; “he was looking for something in the way of peer acceptance and approval and ‘belonging’ to some sort of group.”
Dr. Glenn observed that although Ben-Sholom was cooperative throughout the interview he was emotionally distant and “quite consciously [hid] his feelings and emotions.” Except when he talked about being discharged from the service, his speech was spontaneous, coherent, and relevant. Dr. Glenn’s primary diagnosis was “mixed personality disorder,” characterized by passive aggressive and anti-social features. The secondary diagnosis was “significant depression” stemming from his horrific childhood and more recently from his rejection from the service as well as from his break-up with his girlfriend. His major depressive episode (from the Army discharge and loss of his girlfriend) was “without psychosis.” Dr. Glenn recommended psychological testing for I.Q., depression, and schizophrenia. Dr. Glenn also felt that suggestibility and induced psychosis should be explored although he didn’t think either of these issues were present. Finally, Dr. Glenn recommended that Ben-Sholom’s need to “belong” should be explored in testing. Dr. Glenn also felt the records of the medical doctor, Dr. Wong, who diagnosed Ben-Sholom’s hypertension should be obtained. Ben-Sho-lom had been reaching the point of “crisis” at the time Dr. Wong diagnosed hypertension. Ben-Sholom then appeared to progress into “some kind of decompensation in his functioning.”
d. Dr. Geshuri’s Report.
Dr. Geshuri, who was retained by Mr. Alexander in response to Dr. Glenn’s recommendation, described the purpose of his interview and report was “to explore some of the circumstances and various social factors which have led to the killing and the specific role which [Ben-Sholom] took in that event.” The examination, on October 6, 1985, entailed four psychological tests and a clinical interview. Exhibit 25 to Petition. During the interview, Ben-Sholom exhibited a “flat affect, showing no emotion” as he recounted the offense and the events leading to it. He emphasized to Dr. Geshuri that “he was a professional, carrying out the details of an agreement or a verbal contract, which he ha[d] committed himself to.”
Ben-Sholom’s score on one of the psychological tests, that assesses credibility, indicated either that he answered the
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questions to make himself look sicker than he was, or more likely in Dr. Geshuri’s opinion, that he actually was affected by “characterological problems manifesting aggressive and sadistic behaviors with possible psychotic thinking.” Dr. Geshuri stated that scores like Ben-Sholom’s were associated “with individuals who are aggressive, sadistically punitive, who like to hurt others and arouse anxiety and guilt in their victims.”
From the background Ben-Sholom supplied, Dr. Geshuri factored into his analysis that Ben-Sholom had a large collection of various knives and fire arms “which he obtained through burglaries and other means.” When asked why he killed Mrs. Teague, he replied that “he found it necessary to carry out the letter and spirit of the verbal contract [with his co-perpetrators] so that his reputation as a reliable professional would be spread around to carve out his future as a professional soldier and mercenary.” After reviewing the paternal abuse inflicted, Dr. Geshuri concluded that Ben-Sholom’s
developmental formative years which he spent as an only child with both parents] working and absent from the home, with him being socially isolated and receiving the persistent harsh and brutal treatment he has received from his father while his mother stood helplessly by, have evolved [Ben-Sholom] into an angry young man. This anger and insatiable need[] for revenge have turned [Ben-Sholom’s] main focus in life and achievement goals into a machinery of death and killing.
His diagnosis was that Ben-Sholom suffered from an anti-social personality disorder (“ASPD”).
e. Dr. Rienzi’s Report.
Dr. Rienzi administered six psychological tests to Ben-Sholom and conducted a clinical interview on October 29 and 30, 1985. Her report is attached as Exhibit 27 to the Petition.
12
During the interview, Ben-Sholom “justified” his role in the offense in terms of his being “under a military contract” with Chris Seaman. Ben-Sholom explained that both before and after his father came to live with him and his mother, he spent a great deal of time at home alone, totally unsupervised. His description of his father and his father’s treatment of him reflected intense anger and resentment. He communicated to Dr. Rienzi his disappointment at being medically discharged from the Army and breaking up with his girlfriend. He also told her about his suicide attempt (overdosing on Inderal).
Dr. Rienzi observed that Ben-Sholom’s struggle with his father overshadowed his efforts to develop his own identity. In the weeks before the offense, he was looking for a “cause” to which he could commit his life and which would “validate” his existence. Dr. Rienzi did detect “a consistent degree of mild exaggeration to all stories he told about himself.” Based on the intelligence scale testing, Dr. Rienzi found an overall I.Q. of 118, placing Ben-Sholom “with the high average range of intellectual function.” His performance on the test faltered when the questions related to authority figures, children, or praise and punishment. Dr. Rienzi found that Ben-Sholom’s drawing (on another test) revealed his capacity for becoming “rigidly obedient and compliant.” In the projective drawing, Ben-Sholom presented himself as frightened, inadequate, and insecure, placing great importance on physical strength and power. His drawing of an
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outdoor scene depicted craggy mountain peaks, which Dr. Rienzi opined were symbols of consistency and stability. When telling “projective” stories, Ben-Sholom assumed a third party view of a detached observer.
In another test, Ben-Sholom identified with an abused child who was left unprotected by “the system.” The complete sentence test demonstrated his sense of self failure, desire to be left alone, annoyance with other people, and conflicts with authority. Dr. Rienzi found that even his penmanship was indicative of rigid self control. The results of another test revealed a person who had excessively rigid and “unconventional thinking of a rebellious, socially isolated personality.” Ben-Sholom’s scores suggested “artificially inflated self-esteem to cover feelings of helplessness and inadequacy,” a tendency to alleviate painful feelings by “striking out in anger and rebellion,” impaired empathy, and involvement in “bizarre, self-defeating crimes.”
In conclusion, Dr. Rienzi reported that Ben-Sholom used an “elaborate defense system” of “symbolic compartments” to keep from expressing pain, rejection, anger, and anxiety. She observed that his “personality identity” remained incomplete leaving him “susceptible to absorbing large portions of characters in books.” He was able to escape feelings of inadequacy, helplessness, depression, and isolation by identifying “a righteous, external cause or a person that he viewe[ed] as powerful.” In that way he could lose himself and become “part of a greater whole” that was powerful. He looked at marriage and having a military or paramilitary career in this manner. As to the offense, she opined Ben-Sholom’s “childhood defense system that allowed him not to see or feel his own pain, allowed him to act without awareness of the victim.”
3. Pre-Trial, Trial, and Post-Trial Proceedings.
The relevant pre-trial, trial, and post-trial proceedings include relevant testimony from Ben-Sholom’s January 9, 1986 suppression motion hearing,
13
Mr. Alexander’s opening and closing arguments at both guilt and penalty proceedings, a pre-penalty phase discussion with the trial court and both counsel, the penalty phase testimony, penalty phase stipulated evidence, a summary of the penalty phase deliberations, and Ben-Sholom’s motion for modification of the death verdict.
a. Summary of Testimony at the Suppression Hearing Regarding Ben-Sholom’s Inderal Use.
The relevance of the suppression hearing testimony to the present analysis is the introduction of the idea of Ben-Sholom’s hypertension and Inderal use in the trial proceedings.
(1) Ben-Sholom’s Testimony.
Discussing his first custodial statement given on January 25, 1985, Ben-Sholom testified that he had a prescription for Inderal (spelled “Enderol” in the transcript) which he was supposed to take twice a day to reduce his blood pressure. Inderal was first prescribed for him in July of 1984. MT: 96-97. After his arrest, he was taken to the hospital to have his blood pressure checked, and at that time he was given some Inderal to take with him back to the jail. He testified he did not feel the effects of Inderal during his custodial interview, and further that usually he didn’t feel any side effects from
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Inderal other than heartburn. When he didn’t take Inderal, however, he did notice when he was experiencing high blood pressure.
Id,.:
98.
(2) Phyllis Marshall’s Testimony.
Ms. Marshall testified that prior to Ben-Sholom’s arrest, he did suffer from high blood pressure (hypertension), for which he first received a prescription of Inderal in July 1984. She stated that although he was supposed to go into the clinic to have his blood pressure checked periodically, Ben-Sholom didn’t always do so.
Id.:
108-09.
b. Mr. Alexander’s Guilt Phase Opening Statement.
Mr. Alexander agreed with the Deputy District Attorney assigned to the case, Andrew Walton, that Ben-Sholom and his companions planned the theft of weapons from the Teague residence so they could join the Karen National Liberation Army. Seaman was acquainted with Mrs. Teag-ue’s son, Alva, and knew he had weapons. Ben-Sholom went in first; Calhoun followed. Calhoun directed Ben-Sholom to kill Mrs. Teague and he complied. Then the three made their way toward Mexico, where they were apprehended in Needles. Mr. Alexander stressed, however, that these were just boys. Ben-Sholom was only 18.
The Karen National Liberation Army was fighting Communists in Burma. Mr. Alexander explained to the jurors they would have to decide whether the boys’ plan to join the Karen National Liberation Army was reality or fantasy. He reiterated the fact that the boys didn’t think anyone would be home and didn’t realize Mrs. Teague was home until they arrived.
The entire “mission” was not well-thought out. Ben-Sholom didn’t even know why he brought his motorcycle rather than all three boys going in Seaman’s jeep. The jeep was equipped for gasoline canisters, but there were none. It also was in very poor condition and broke down in the desert. The boys had no extra clothing with them. Ben-Sholom had to sell his motorcycle to obtain some money. The murder was never supposed to have happened.
When he was given the order to kill Mrs. Teague, he did so in a manner to be quick and painless. Once apprehended, Ben-Sholom was cooperative with authorities. Mr. Alexander exhorted the jurors to remember that the words about whether anyone at the house would be “eliminated” on the taped custodial statement were the interrogator’s, not Ben-Sholom’s.
c. Mr. Alexander’s Guilt Phase Summation.
On summation, Mr. Alexander again agreed with Mr. Walton’s rendition of the basic chain of events. He then reiterated his opening statement emphasis that Ben-Sholom fully cooperated with authorities and told the truth. He also reiterated his earlier observation that many of the incriminating statements produced during Ben-Sholom’s custodial interview were not his words, but rather were the words of the interrogator and Ben-Sholom simply agreed. He particularly emphasized that Ben-Sholom did not say he and his companions intended to “eliminate” witnesses. He suggested the reason the boys proceeded with the burglary plan even though someone was home was the result of peer pressure. None of the boys wanted “to be the first one to back down.” He strenuously argued that the killing of Mrs. Teag-ue was not cold-blooded. Ben-Sholom shot her four times at the base of the skull because he wanted her death to be quick and painless.
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Mr. Alexander also stressed that the crime wasn’t really planned out. Although the boys conceived of the plan as a “foolproof burglary” and the whole thing developed into a “military mission,” they made no provisions for getting to Burma. They had no gas cans, no extra clothing, and no extra food. Further, Ben-Sholom perceived his role as one who was following orders that came down the line of command. Mr. Alexander then commented, however, “I’m not going to ask you to believe that Ryan Marshall [Ben-Sholom] was so entrenched in this military mission that he gave absolutely no thought to what he was doing. We really don’t have evidence of that.” On the very next page of the transcript, however, Mr. Alexander stated in contradiction that when John Calhoun gave Ben-Sholom the order to kill Mrs. Teague, Ben-Sholom “did it without thinking, without stopping and thinking what am I doing. Do I challenge this order? Do I go ahead with this order? He went and did it.” Mr. Alexander acknowledged to the jurors:
I know it’s foreign to all of you to think that someone could be entrenched in the military thinking that if they were ordered to shoot, kill an innocent woman, that they would do it without giving it much thought ... But I would ask you to carefully give it consideration.
d. Pre-Penalty Phase Discussions.
Guilt phase closing arguments were made and instructions given on Wednesday, February 5,1986. The jury retired to deliberate at 3:10 p.m. and were back in court by 5:05 p.m. with a verdict. Ben-Sholom was convicted of special circumstance murder, robbery, and burglary. On the following Monday, February 10, 1986, Mr. Alexander and Mr. Walton met with the trial judge to discuss instructions and limitations on the admission of evidence, particularly on the potential rebuttal testimony of Dr. Richmond. Focusing on the limitations to be imposed on Dr. Richmond’s testimony, Mr. Alexander expressed his concern that if Dr. Richmond were to testify on rebuttal, he could recount facts (incidents relayed by Ben-Sho-lom) that otherwise would be inadmissible during penalty proceedings, as not fitting into any of the statutory aggravating factors. RT-13: 2357. He expressed his concerns in this manner:
My concern at this point is if anything of that nature is going to come in by Dr. Richmond, then I’ve go to make a decision whether I even want to put on my psychologist because if I put on my psychologist and that opens the door for Dr. Richmond to give statements about some previous act that otherwise would be inadmissible. Then it seems like it would be wise for me not to call my psychologist.
Id.:
2358.
Accordingly, he requested that Dr. Richmond be precluded from testifying about Ben-Sholom’s account of getting into a fight with another child when he was 12 or 13 and putting that child in the hospital. He wanted to preclude Dr. Richmond from recounting Ben-Sholom’s burglary of his mother’s house when he was a juvenile and any information' about Ben-Sholom’s use of drugs (marijuana and mushrooms). He wanted to restrict Dr. Richmond from mentioning anything about Ben-Sholom’s military training by “groups that shall remain nameless” in forms of jungle fighting, that Ben-Sholom wanted so much to sign up for the Army when he 17 years old that if his parents did not consent he would blow himself up in the house with the entire family. He didn’t want Dr. Richmond to mention that Ben-Sholom wanted the death penalty to be released from this world, and the guilt he felt, or about wanting his father dead. Overall, Mr. Alexan
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der also sought to confirm that Dr. Richmond would not be allowed to testify on the issue of Ben-Sholom’s future dangerousness.
Id.:
2365-67
Mr. Walton agreed Dr. Richmond’s rebuttal testimony, if elicited, would be restricted and that Dr. Richmond would not to testify on any of the subjects mentioned by Mr. Alexander. Mr. Walton represented to the trial judge: “If he’s [Dr. Richmond is] called and will testify for the People, I will instruct him not to go into these areas and we’ll just give a basic opinion or [go] into areas that there are no objections.”
Id.:
2367-68. Mr. Walton further represented that if he decided to call Dr. Richmond, he would “indicate” to Mr. Alexander what areas he intended to have Dr. Richmond testify about in rebuttal. In the event Mr. Alexander had any further objections, the two attorneys would attempt to work those out. Mr. Alexander’s response to that offer was, “Fine.”
Id.:
2368.
e. Mr. Alexander’s Penalty Phase Opening Statement.
Mr. Alexander explained that the purpose of the evidence the defense would present at this phase of the proceedings was to acquaint the jurors with Ben-Sho-lom, with the way he really was.
Id.:
2382-83. He explained that Ben-Sholom held his feelings inside, as would be become evident from the testimony of his mother and the fact that he suffered from high blood pressure. Ben-Sholom was medicated with Inderal to combat the high blood pressure problem. He was not a cold person.
Id.:
2383-84.
f. Penalty Phase Testimony.
The witnesses called to allow the jurors to get to know Ben-Sholom were his mother, Phyllis Marshall, his grandmother, Faye Muldworf, an elder at the local chapter of the Jehovah’s Witnesses, Isaac Hull, the mother of one of his school friends, Judy Mayora, his (former) Sea Scout leader, Henry Bethany, and himself. To the extent the testimony of these witnesses is summarized in the October 5, 2001 order, reference is made to the portion of that order where the full summary can be found.
(1) Phyllis Marshall.
Ms. Marshall’s testimony described the abuse her husband inflicted on Ben-Sho-lom.
See
Part V.A.12, October 5, 2001 order. She testified that she had been a social worker for the Child Protective Services of Tulare County since 1976. She described her parenting philosophy as one where she encouraged her son to question parental directives in stark contrast to that of her husband who approached parenting as a means to coerce obedience through cruelty and intimidation. Mr. Marshall isolated Ms. Marshall and Ben-Sholom by moving frequently. He forced his religious beliefs of the Jehovah’s Witnesses on them and he berated them for their Jewish heritage.
Ms. Marshall’s first contact with Mr. Marshall as a parent was in early 1968 when Ben-Sholom was a toddler. She took Ben-Sholom with her to Louisiana to live with Mr. Marshall, but left after four months because he drank heavily and was physically abusive to her. She married Mr. Marshall after “he said all the right things” and convinced her that he finally had settled down when Ben-Sholom was seven and a half. Prior to this, Ben-Sholom and Ms. Marshall enjoyed a pleasant mother-son relationship. He was bright, enthusiastic, energetic and personable. RT-13: 2391. Although Mr. Marshall had “played the wonderful father” with Ben-Sholom prior to the marriage (as part of wooing Ms. Marshall), after the
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marriage, the father-son relationship almost immediately deteriorated; the physical, psychological, and emotional abuse inflicted on Ben-Sholom was pervasive and severe. When Ms. Marshall complained about the constant physical abuse (hitting), Mr. Marshall devised a new form of discipline. That is he directed Ben-Sholom to dig a hole in the backyard and after it was dug, to fill it up again.
Id.:
2402.
Mr. Marshall’s concept of family life was that “he was the man of the house, he was the one in charge and everybody was going to do what he wanted.”
Id.:
2391. He yelled; he never talked. He threw objects in the house that were not to his standards of cleanness or neatness. He had an explosive personality. He had been in the Navy and he treated Ms. Marshall and Ben-Sholom as they were in the service. She didn’t leave him at first because he threatened to kill her. Later, after she no longer feared his killing her, he threatened to steal Ben-Sholom and told her she would never see her son again.
Id.:
2394. Ms. Marshall was aware of Ben-Sholom’s desire to be in the Army from a very early age. When he finally enlisted he was very happy, even though boot camp was difficult. She felt the Army was a way for Ben-Sholom to escape his father and prove he was okay.
Id.:
2399-2400. When Ben-Sholom was discharged, he was lost, not knowing whether to go to work or to school. He talked more about becoming a mercenary and rescuing MIAs.
Id.
2402-03. Ms. Marshall didn’t pay much attention to this talk because she didn’t think it was realistic. Specifically, he talked to his mother about fighting in different countries to free people being held captive by the Communists. He wrote to the French Foreign Legion.
Id.:
2404.
Because of the “war” between Ben-Sho-lom and his father, Ben-Sholom learned to keep his feelings inside. That is why he had an ulcer and high blood pressure, both prior to his arrest for the present crime.
Id.:
2405. She explained that his hypertension had been diagnosed in July of 1984 and he was prescribed Inderal for it.
Id.:
2407. Not showing his feelings was the only way Ben-Sholom could function in the face of paternal abuse.
Id.
2405. Ms. Marshall testified that despite Ben-Sho-lom’s emotionless exterior he was extremely sensitive.
Id.:
2406.
In the last part of her testimony, she authenticated 12 photographs of Ben-Sho-lom, from about 18 months to 17 years.
Id.:
2407. She testified one photograph depicted Ben-Sholom, Ms. Marshall, and Ms. Marshall’s mother, Mrs. Muldworf. She testified another depicted Ben-Sholom and his former girlfriend, Jackie.
Id.:
2408.
(2) Faye Muldworf.
Mrs. Muldworf testified to the positive aspects of Ben-Sholom’s character as well as some very disturbing incidents involving his father.
See
Part V.A.10, October 5, 2001 order. She noted that he always had been helpful to strangers and even saved the life of a little boy drowning in a pool. She described Mr. Marshall as a sadistic and physically strong man who abused Ben-Sholom “all his life for no reason.” She relayed that Ben-Sholom “couldn’t stay in the same room with him [Mr. Marshall] because if the man looked at his son, he became very enraged for no reason at all and picked on him.” Once when Ben-Sholom was nine or ten years old and came to visit her, she purchased an Air Force uniform for him at a thrift store. As a child, Ben-Sholom loved this uniform. But, when he returned home, “his father threw out the uniform because it gave him [Ben-Sholom] pleasure.” RT-13: 2411. She testified about an episode where Mr. Marshall, upset because Ben-Sholom
*1076
failed to water certain plants, beat his son so severely that when the boy came out of the garage, he crawled; he didn’t walk. She recounted that Ben-Sholom had a look of terror on his face she hoped never to see again. Mr. Marshall brutalized and abused Ben-Sholom all his life. She explained that Ben-Sholom lived in a fear of his father. She also relayed how Mr. Marshall gave orders. “If he [Ben-Sholom] didn’t obey that order immediately, he beat him. He was supposed to obey his [father’s] orders without any idea or thought or anything else. No hesitation.”
Id:
2412. In response to this abuse, Mrs. Muldworf described how Ben-Sholom retreated to his room into a “fantasy world” where he pictured himself as a mercenary.
Id.
(3) Isaac Hull.
Mr. Hull was an elder at the Jehovah’s Witness church where Ben-Sholom took Bible study instruction. He found Ben-Sholom to be very bright and studious.
Id.:
2414. Before going into the Army, Ben-Sholom visited Mr. Hull and his wife. Mr. Hull observed that Ben-Sholom seemed to be “pretty obsessed with this thing about guns and military.” Being in the Army was something Ben-Sholom could be proud of doing.
Id.:
2415. After his discharge, Ben-Sholom seemed disappointed, but his continued interest in guns and weapons concerned Mr. and Mrs. Hull.
Id.;
2416. On cross examination, Mr. Hull testified that Ben-Sholom had not been so interested in guns and weapons when he was younger. The interest seemed to intensify right before he went into the Army.
Id.:
2419.
Mr. Hull’s impression of Lonnie Marshall was that although he was very knowledgeable about the Bible, he didn’t apply what he knew. He then described an incident where Mr. Marshall called Mr. Hull to the Marshall residence because Mr. Marshall insisted that Ben-Sholom’s foot locker was possessed. Mr. Hull found Mr. Marshall very strange and he was “a little bit afraid of him.”
Id.:
2418.
(4) Judy Mayora.
Ms. Mayora knew Ben-Sholom because he was a friend of her son and both boys were in Sea Scouts.
See
Part V.A.H., October 5, 2001 order. Like Ms. Marshall, Ms. Mayora was employed in a job designed to protect abused children as the director of CASA, which stands for Court Appointed Special Advocates for battered and abused children. RT-13: 2423, 2429. She knew Ben-Sholom to be very kind and sensitive who spent a lot of time trying to become a part of her family. He spent days on end at her home integrating with her other four children.
Id.:
2424-2427. Although Ben-Sholom spent so much time in her home, Ms. Mayora never met Ben-Sholom’s parents. She regrets not having picked up on signs he was abused. One time he “was pretty well marked up,” but he gave her conflicting accounts for his battered appearance and she didn’t follow up. Another sign was that Ben-Sholom spent so much time at her home.
Id.:
2427-28.
After Ms. Mayora learned of the present crime, she realized that Ben-Sholom, as a child, had been picked up to spend the night at the home of one of her CASA volunteers. His participation in the present crime was unbelievable to her. It did not fit his character. He was kind and gentle in her home.
Id:
2429-30. On cross examination, Ms. Mayora described the way that Ben-Sholom embellished reality regarding financial ability to purchase a car or girlfriends. She wasn’t sure whether his account of planning to go into the Army wasn’t also fantasy.
Id:
2431. He was very mature and acted like he was
*1077
the same age as her son, who in fact is three years Ben-Sholom’s senior.
Id.:
2433. With respect to physical abuse, Ben-Sholom would disclose that his father had done something to him, and then if Ms. Mayora “seemed to pick up on that,” then he would change the story to say that he got into a fight at school.
Id.:
2434.
(5) Henry Bethany.
Mr. Bethany, who had been Ben-Sho-lom’s Sea Scout leader, gave a very brief account of his acquaintance with Ben-Sho-lom. He testified that Ben-Sholom was polite, reliable, a good worker, and amiable with his peers. Ben-Sholom was known to Mr. Bethany as “Mike” (his middle name), rather than Ryan.
Id.:
2438-40.
(6) Ben-Sholom.
Ben-Sholom first recounted that he had been in the United States Army for four or five weeks, but received a medical discharge due an ankle injury. With respect to the crime, he testified that he felt a great deal of remorse for killing Mrs. Teague, that it was a terrible thing, and that he wished he could change the events.
See
Part V.A.9., October 5, 2001 order. Specifically, with respect to the crime he testified: “I feel a great deal of remorse. It was a terrible thing. And if it could be changed, if it was within my power, I would change it.” RT-13: 2442. During his time in jail, he has read five to seven novels a week, most in the science fiction and horror genre, and studied German.
Id.:
2443. On cross examination, he explained that it took about a week for the entire situation to sink in before he really began to feel remorse for the crime. He said he was in shock at the time of and just after the crime, and that the shooting had been “an automatic reaction.” He “was given an order” and he “followed the order explicitly.” Later he had time to think about what carrying out that order meant to his life, the lives of the family affected by the offense, and the lives of friends and relatives.
Id.:
2444.
On re-direct, Ben-Sholom identified a photograph of himself taken out Fort Sims, Oklahoma, when he was in the Army.
Id.:
2445.
g.
Penalty Phase Stipulated Evidence.
Mr. Alexander offered medical records listing the medications given Ben-Sholom in the Tulare County Jail, including ami-triptyline hydrochloride, an anti-depressant, Haldol, a tranquilizer, Elavil, an antidepressant, Dalmane, a hypnotic for treatment of insomnia, and Inderal, for treatment of hypertension. The explanations of the drugs listed came from a photocopy of the Physician’s Desk Reference.
Id.:
2445-46.
h. Mr. Alexander’s Penalty Phase Summation.
Following Mr. Walton’s closing where he emphasized the callousness of the crime committed by an 18 year old
man
(Ben-Sholom), Mr. Alexander began by imploring the jury to consider sympathy.
Id.:
2455-56. In the next breath, he stated: “But my objective in talking to you is not asking for sympathy at this time. I want you to consider that. But what I would ask you to do is follow the law.”
Id.
2457. He explained he wasn’t asking the jurors to “forgive” Ben-Sholom, but to let him live the rest of his life in prison where he could accomplish a lot of good things, including self-education and helping others.
Id.:
2458. He noted the factors in mitigation included the absence of evidence of prior violent criminal activity and prior
*1078
felony convictions.
14
Now, Judge Allen will read you an instruction regarding this particular factor [the presence or absence of criminal activity involving violence]. That will say word for word, “There has been no evidence presented [of] other criminal activity of the Defendant which involves the use or attempted use of force or violence or the expressed or implied threat[
15
] to use force or violence. The circumstance should therefore be viewed as a circumstance in mitigation.”
What is the next factor to consider? The presence or absence of any prior felony convictions. Judge Allen will read an instruction on that factor. “There has been no evidence that the Defendant has been convicted of any prior felony. This circumstance should therefore be viewed as a circumstance in mitigation.”
Id.:
2461. He especially emphasized the fact of Ben-Sholom’s youth at the time of the crime.
16
Mr. Alexander recited the instruction on this point:
If the Defendant had been under 18 years old when the crimes were committed, he would be subject to neither life imprisonment without parole nor the death penalty. You must consider the Defendant’s age only as a mitigating factor, to be accorded whatever weight you believe it deserves. You may not under any circumstance consider Defendant’s age as an aggravating factor.
Id.:
2462. He explained there were three sentencing factors which were definitely mitigating (factors (b), (c), and (i)), and one factor that could be mitigating (factor (k)).
17
But there was only one factor which would be aggravating (the factor (a) circumstances of the crime).
18
He explained that if the jurors were unmoved by evidence of Ben-Sholom’s difficult childhood, they were to disregard the catchall factor (k). If they wanted to show sympathy and give this factor weight, then it would be a factor in mitigation.
Id.:
2462. He argued this case was not appropriate for the death penalty.
Id.:
2463. He urged the jurors to consider Ben-Sholom’s potential for rehabilitation and leading a useful life in prison as circumstances in mitigation of the sentence.
Id.:
2466. He then recounted the testimony of the witnesses who saw good in Ben-Sholom.
Id.:
2467.
i. Penalty Phase Deliberations.
Following a penalty phase presentation that .lasted less than two and one-half
*1079
hours, deliberations continued on for nearly 17 hours.
19
There also were several inquiries made by the jury during their deliberations. On the first day of deliberations, the jurors asked for a definition of aggravating and mitigating circumstances as well as the Physician’s Desk Reference definitions for the medications prescribed for Ben-Sholom.
Id.:
2477. There also was a question clarifying jail medical records. By mistake Ben-Sholom’s juvenile records from 1984 had been given to the jurors. Since, according to the trial judge, the jurors were “not to know about something like that,” the date was changed to 1985.
Id.:
2478-79. On the second day of deliberations, the jurors asked for a copy of the transcript of Ben-Sholom’s penalty phase testimony.
Id.:
2483-84. Then they wanted to know how many years until a person sentenced to life without the possibility of parole would be eligible for parole. The trial judge clarified that life without parole meant no parole.
Id.:
2485. On the third day, the jurors asked whether the prosecution could have presented additional witnesses, to which the court responded in the affirmative.
Id.:
2487. A verdict that Ben-Sholom should suffer the death penalty was entered after a full day of deliberations on that third day.
Id.:
2488. From the August 15, 1988 declaration of the jury foreman (attached to Ben-Sholom’s first state habeas petition), Ben-Sholom reveals that the first vote cast during penalty deliberations was eight to four for life. The second vote was ten to two for death and the final two votes were unanimous for death.
See
Part V.A.36, October 5, 2001 order, more fully summarizing the jury foreman’s declaration testimony.
j. Ben-Sholom’s Motion for Modification of the Death Verdict.
Mr. Alexander and Mr. Walton argued their respective positions on Ben-Sholom’s motion to modify the death verdict pursuant to Penal Code § 190.4(e) on April 14, 1986. Mr. Alexander reiterated the defense position that Ben-Sholom joined the daytime burglary scheme of Chris Seaman as a step towards getting to Burma to join the Karen Liberation Army. He emphasized that Ben-Sholom actually believed this would happen and that the burglary was a step to achieve that goal. HT-1: 5-6. He further argued that although following orders was not an excuse, the chain of command must be considered in sparing Ben-Sholom’s life.
Id.:
7. Mr. Walton reiterated that Ben-Sholom’s initial expression of remorse was not for having taken Mrs. Teague’s life, but for not being able to go to Burma as he had planned.
Id.:
13. Adding to the following orders theme, on rebuttal, Mr. Alexander argued that when Ben-Sholom was given the order to kill Mrs. Teague, he executed the order, “without thinking” at least in part because he perceived himself as being lowest in command.
Id.:
17. Mr. Alexander strenuously argued that Ben-Sholom felt remorse.
Id.:
17-18. He also made a
*1080
substantial argument regarding inter-case and intra-case proportionality.
Id.:
18-26. Mr. Walton argued the aggravated circumstances of the crime; it was callous and cold, all for five guns.
Id.:
32-34.
The trial judge delivered his ruling on the motion on May 9, 1986. Being guided by the aggravating and mitigating sentencing factors referred to in Penal Code § 190.3, the court denied the motion. HT-2: 2. The record provides:
This Court has re-examined the evidence offered in the penalty phase by the defense and finds beyond a reasonable doubt that there was [sic] not circumstances which extenuated the gravity of the crime, whether or not it be a legal excuse. [¶] None of the witnesses called could offer any explanation or give any evidence of any conceivable circumstance that the Court finds would extenuate the gravity of this crime. The evidence, which the defense offered, concerning the Defendant’s extenuation was merely as to his background, and the abuse he suffered at the hands of his stepfather [sic]. [¶] The members and friends of the Defendant’s family who testified did not, in the Court’s opinion, present any evidence which this Court would find to be a moral justification or extenuation for the Defendant’s conduct.
Id.:
3.
Nonetheless, the trial court found a number of factors were established in mitigation, including, the absence of (uncharged) violent criminal activity, the absence of any prior felony conviction, Ben-Sholom’s age, 18 years old, the environment in which he was raised, and his expression of remorse during penalty proceedings. The court noted there was a lack of evidence that Ben-Sholom was under the influence of extreme mental or emotional disturbance, that he was acting under duress or was substantially dominated by another person, and he didn’t try to disabuse his companion, John Calhoun, of the notion that Mrs. Teague had to be killed.
Id.:
4-6.
4. Evidence Presented by Ben-Sho-lom at the Evidentiary Hearing.
In his case in chief, Ben-Sholom called Mr. Alexander, Kings View social worker Anthony Casillas, psychiatrist Gary Wyn-brandt, M.D., Ms. Marshall, psychologist Beth Rienzi, Ph.D., Assistant Tulare County Public Defender Neil Pereira, and
Strickland
expert Philip Cherney. The Warden called psychologist Yosef Geshuri, Ph.D. and psychiatrist James Richmond, M.D. On rebuttal, Ben-Sholom recalled Dr. Wynbrandt and psychologist James Park.
a. Roger Alexander.
Roger Alexander worked for the Tulare Public Defender’s Office from 1980 to 1986 or 1987. When Ben-Sholom’s case was assigned to him, he had tried five cases charged as special circumstance cases, but none went to a penalty phase. He testified that when he first met Ben-Sholom, he knew there was a possible mental defense. He also was worried that Ben-Sholom was a suicide risk and in need of medication. As a preliminary matter, he retained psychiatrist and neurologist Dr. Kleist, to interview Ben-Sholom, but did not provide Dr. Kleist any materials or documents to review prior to the interview. No report was requested, but Dr. Kleist provided one anyway. That report, dated February 26, 1985, documented Ben-Sho-lom’s fantasy as a paramilitary soldier and deluded account of his abilities. Of note to Mr. Alexander was that Dr. Kleist suspected that the accounts of paternal abuse recounted by Ben-Sholom were exaggerated. Ultimately Dr. Kleist found Ben-Sho-lom sane.
*1081
After rendering this report, Dr. Kleist conferred with Ben-Sholom’s mother, Ms. Marshall,.- and learned that the level of paternal abuse reported by Ben-Sholom was not exaggerated. In a subsequent report, however, Dr. Kleist did not offer a new diagnosis or amend the initial impression. Like Dr. Kleist, Mr. Alexander related that Ben-Sholom said strange and outrageous things to try to elicit a response and to impress his listener. After reviewing Dr. Kleist’s second report, Mr. Alexander consulted with Ms. Marshall.
Mr. Alexander testified that after receiving Dr. Kleist’s report, he hired mental health experts, Drs. Glenn, Geshuri, and Rienzi.
20
None of these mental health professionals, however, were contacted until the following September 1985 (over six months later). Mr. Alexander also did not begin requesting information about Ben-Sholom’s mental health history until September and October 1985.
21
In the interim, in June of 1985, Mr. Alexander consulted with Allen Middleton, Ph.D, á specialist in post-traumatic stress disorder (“PTSD”) to see if Ben-Sholom’s military experience may have caused any mental problems. At the time Mr. Alexander had not heard of PTSD outside of the military combat context. Mr. Alexander gathered from Dr. Middleton, however, that Ben-Sho-lom’s military experience (in the United States Army) did not cause PTSD.
22
The purpose for retaining psychiatrist/ neurologist, Dr. Glenn, was to ascertain if Ben-Sholom was mentally ill. To prepare Dr. Glenn for his interview with Ben-Sho-lom, Mr. Alexander provided him Ben-Sholom’s Kings View counseling records and police reports.
23
He specifically wanted Dr. Glenn to comment on the defense of diminished capacity and insanity. He did not request a report and was surprised Dr. Glenn provided one (dated September 21, 1985). Dr. Glenn opined that Ben-Sholom was not insane. Mr. Alexander testified that Dr. Glenn recounted facts about Mr. Marshall’s paternal brutality, the horribly abusive home life, Ben-Sholom’s failure in the Army, his major depression and suicide attempt, his jumping from the Sequoia Mall, and the need for psychological testing. Dr. Glenn also sent Mr. Alexander articles about Inderal. Mr. Alexander stated he did not intend to use Dr. Glenn as a witness.
The next mental health professional consulted was psychologist, Dr. Geshuri. Mr. Alexander retained Dr. Geshuri to conduct psychological testing. Mr. Alexander purposefully did not provide Dr. Geshuri any background information. Nor did he talk to Dr. Geshuri before the report was prepared. Mr. Alexander described the report as “really bad.” Shortly thereafter, Mr. Alexander retained Dr. Rienzi, also to conduct testing and hopefully yield a more favorable impression. With Dr. Rienzi, Mr. Alexander stuck with his strategy of not providing psychologists with any substantiated background information, al
*1082
though he testified that he did inform her of the charges and the basic facts of the case. He testified his decision not to provide Drs. Geshuri and Rienzi with background information was strategic. Even conceding that there was some background information which did not contain any violent past behavior on the part of Ben-Sholom, Mr. Alexander testified he “wanted a clean opinion” based only on the testing.
Dr. Rienzi wrote a report noting the crime resulted from a “military contract.” Mr. Alexander recalled Dr. Rienzi’s impressions that Ben-Sholom was excessively rigid and insecure and that he desperately wanted to belong to something. Mr. Alexander described Dr. Rienzi’s impressions as having been solely based on testing. Later, he testified that he didn’t know whether Dr. Rienzi’s clinical interview informed her opinion. He did know that he wanted her to testify solely about the empirical results of the tests she administered because he didn’t want to appear to be making excuses.
After receiving and reviewing Dr. Rien-zi’s report, Mr. Alexander decided that his penalty phase strategy would be to call her to the stand. Along with this plan, he also worked to get the trial judge to give specific instructions, namely that Ben-Sho-lom’s age at the time he committed the crime, under Penal Code § 190.3(i) and the fact that he had no uncharged violent criminal activity or prior felonies, § 190.3(b) and (c), were factors in mitigation of the crime warranting life without the possibility of parole rather than death. He intended for evidence about Ben-Sho-lom’s mental state and childhood abuse to be covered under the catchall penalty factor, § 190.3(k). He knew that the sole aggravating factor to be relied on by the prosecution was the circumstances of the crime factor under § 190.3(a), and he wanted to have a “clean” penalty case, where the defense instructions would relate only to mitigating factors. He didn’t want any factors-mentioned that the jurors could twist into aggravators.
Mr. Alexander did not recall reading the penalty factors individually to assess whether he could produce any other mitigating evidence. Later he testified he actually deleted factor (d) (extreme mental or emotional disturbance, under Penal Code § 190.3(d)) and factor (g) (substantial domination, under § 190.3(g)) from the instructions. He did not conduct research on factor (g), although he did have in mind that Ben-Sholom was easily led. He testified he was afraid the jury would have responded unfavorably, either with disgust or derision
24
to a factor (g) instruction. He also was fearful a factor (g) instruction would have been turned in an aggravator if the jury didn’t find substantial domination to be mitigating. This followed, in Mr. Alexander’s reasoning, because Ben-Sho-lom went into the house first and was the actual shooter. He (Mr. Alexander) said he would follow the same strategy at the time of his testimony; he simply didn’t want to blame the crime on others. He had the same belief about a factor (d) instruction, that is, he would not use an instruction under this factor, even at the time of his testimony, since evidence of mental or emotional disturbance could be presented under the catchall factor (k). He believed the jurors would not ignore general mitigating evidence (i.e., paternal abuse) even if there was no specific instruction, although he wasn’t sure they would know what to do with it. At the time Mr. Alexander tried Ben-Sholom’s case, his experience with mental health issues was limited
*1083
to determining a defendant’s guilt or innocence. In those situations, mental defenses were viewed as mere excuses. He would not use a mental defense unless there was a neurological backing. He felt mental mitigation was a hard sell, whereas the mitigation impact of child abuse was easier.
With respect to the substantial domination factor (g) instruction, Mr. Alexander was questioned about an interview conducted of Mr. Marshall, pre-trial, by the defense investigator. In the interview, Mr. Marshall stated that Ben-Sholom definitely was a follower, who wanted to lose his identity in some kind of military organization. The interview report was admitted as Exhibit 8 to the evidentiary hearing transcript (“EHT”). Mr. Alexander, however did not recall any such information in the report or the interview with Mr. Marshall. In any event, Mr. Alexander did not intend to call Mr. Marshall. Not only did Mr. Alexander fear for his own safety when it came to Mr. Marshall, but he explained that Mr. Marshall threatened he would have said things on the stand to ensure that his son would get the death penalty if he had been subpoenaed to testify-
Initially, Mr. Alexander tried to have Ben-Sholom’s custodial statements suppressed.
25
When this failed, he believed the prosecution would get a conviction and the case would proceed to a penalty phase. At the time of Ben-Sholom’s penalty phase, Chris Seaman already had been sentenced to' death. Mr. Alexander believed a death verdict was possible for Ben-Sholom as well.
26
Mr. Alexander wanted to maintain credibility with the jury. He intended to point out the mitigating factors and argue they outweighed the aggravating factor. In Mr. Alexander’s view, his job during the penalty phase was to humanize Ben-Sholom. To do that, he called witnesses who were knowledgeable and credible. The defense investigator interviewed 21 potential witnesses between August and December 1985. He also subpoenaed numerous documents, to be produced in November 1985. Six of the 21 witnesses interviewed were subpoenaed and only four were called as witnesses.
27
He also marked as trial exhibits childhood photographs of Ben-Sho-lom, admitted during Ms. Marshall’s testimony. He denied not reviewing with her the contents and events depicted in the photographs.
28
He also explained that interacting with Ms. Marshall was difficult and time-consuming because she required so much attention. Additionally, he testified she was not always a reliable historian. Before calling his witnesses, Mr. Alexander explained to the jury that the penalty phase evidence would allow the jurors to get to know and gain some “insight” into Ben-Sholom. One concern he had was that jurors wouldn’t look at Ben-Sholom during the trial proceedings. His
*1084
purpose in having Ben-Sholom testify was to give the jurors an opportunity to look at him and listen to him. Mr. Alexander prepared Ben-Sholom for his testimony by ensuring he wouldn’t say anything about wanting to die.
From Mrs. Muldworf, Ben-Sholom’s grandmother, Mr. Alexander wanted evidence of Ben-Sholom’s abusive background, as a sympathy factor. He did not feel that Ben-Sholom’s abuse was a factor as to his participation in the crime. Isaac Hull was called to testify about the bizarre behavior of Ben-Sholom’s father in burning Ben-Sholom’s foot locker,
29
and Henry Bethany was called to give good character evidence. Mr. Alexander also intended to review Dr. Rienzi’s test results, particularly the fact that Ben-Sholom wanted to belong to something larger than himself. He intended to emphasize the military aspect of the crime and the fact that Ben-Sholom perceived the burglary as a military operation. Mr. Alexander thought this would show there was something wrong with Ben-Sholom. He believed mental state mitigators, and the paternal abuse would be developed through Dr. Rienzi.
He intentionally withheld background information about Ben-Sholom’s social history (which Mr. Alexander developed himself through investigation and witness interview).
30
Although he didn’t know whether Dr. Rienzi’s clinical interview of Ben-Sholom informed her opinion, he testified that the clinical interview was not necessary to the test interpretation and therefore irrelevant to her anticipated testimony. In preparing her for her testimony, he directed her to limit her testimony only to the objective tests. He was so concerned about excluding her clinical impression that he considered a motion in limine to exclude testimony about her interview. He conceded, however, that he didn’t know whether Dr. Rienzi would have been able to testify without referring to her clinical interview.
Ultimately, he decided not to use Dr. Rienzi because he was able to get the jury instructions he requested. This decision had a secondary benefit in Mr. Alexander’s estimation of precluding Dr. Rienzi’s access to damaging information in the Kings View reports, police reports, and other expert reports relative to Ben-Sholom’s capacity and preoccupation with violence, killing himself, and killing his father. Mr. Alexander certainly didn’t want the prosecutor, Mr. Walton, to have access to any of the damaging reports (from Drs. Kleist and Geshuri). He wanted any violent elements of Ben-Sholom’s background (other than paternal abuse) to be excluded from the jury, so as not to contradict the mitigation factor under Penal Code § 190.3(b) (the absence of uncharged violent criminal activity). He also was concerned about how unemotional Ben-Sholom was, referring to Dr. Kleist’s impression that Ben-Sholom was a very scary person. Not calling Dr. Rienzi also eliminated the possibility that the prosecution would call Dr. Richmond in rebuttal. He testified he didn’t know what Dr. Richmond would say
*1085
if called, because at the time Mr. Alexander conducted Dr. Richmond’s deposition, the doctor said he hadn’t formed any opinions about Ben-Sholom’s mental health. Mr. Alexander feared if Dr. Richmond testified, he might have formed and testified about an opinion. Although some concessions about Dr. Richmond’s proposed testimony at the pre-penalty phase discussions were reached between Mr. Alexander and Mr. Walton, in Mr. Alexander’s experience, Mr. Walton, was prone to change positions.
The concern Mr. Alexander had with Dr. Richmond was the possibility the doctor would relay violent incidents Ben-Sholom recounted to him (Dr. Richmond) in the January 28, 1985 interview. Mr. Alexander testified he could not have obtained an in limine order to limit Dr. Richmond’s rebuttal in advance of Dr. Rienzi’s testimony because the trial judge would have wanted to hear what Dr. Rienzi had to say before limiting the rebuttal. On cross examination, he testified that without the benefit of hindsight, he would not have altered his decision about not calling Dr. Rienzi.
Although Mr. Alexander knew from his interaction with Ben-Sholom there was something wrong with Ben-Sholom, he testified he “never got at what it was” and he didn’t get the full picture before the jury. His self-assessment was that he performed above average in terms of the time spent developing a defense and consulting with experts, considering the limitation on funding. Yet, still, he testified he felt he didn’t adequately investigate the mental health issues and mitigators because the jurors returned a death verdict.
b. Anthony Casillas.
Mr. Casillas, a licensed clinical social worker, was a therapist at Kings View Mental Health Center in Visalia. Ben-Sholom was considered a volunteer admission, at age 14, brought in and referred by his mother, Ms. Marshall. In her capacity as a CPS worker for the County of Tulare, Ms. Marshall previously had referred CPS children to Kings View. During their first session, Mr. Casillas noted that Ben-Sho-lom came into the session dressed in a cowboy hat and sun glasses. He wanted to be called “Mike” (his middle name) rather than Ryan. Ben-Sholom expressed hatred for his father, which Mr. Casillas understood followed from verbal abuse. The impact of this abuse on Ben-Sholom was to produce fear, low self-esteem, and lead Ben-Sholom to distance himself from people. In the summary Mr. Casillas authored,
31
the presenting situation, according to Ms. Marshall, was that Ben-Sholom had a poor relationship with his father and wanted to leave home. Ms. Marshall was concerned about Ben-Sholom being afraid of his father. She reported that Ben-Sholom tended to get himself in trouble at school by getting into fights. In addition, she reported the following behaviors during the few months prior to his admission (on August 25, 1980 at age 14): nail biting, stomach upsets, over-eating, stuffing himself at the table, headaches, difficulty falling asleep, not wanting to go to school, feeling fearful, being restless and quarrelsome, irritability, temper tantrums, disobedience, talking back, getting his feelings hurt too easily, talking about “unpleasant thoughts,” complaining, pouting, feeling “unliked,” demanding too much attention, showing off, being disliked by other children, picking on other children, and being picked on by other children. Exhibit 10 to Petition, page 1. Mr. Casillas’s impression was that Ben-Sholom suffered from an
*1086
adjustment disorder with mixed disturbance of emotions and conduct.
Id.,
page 2. In a later session on October 21, 1980, during which Mr. Casillas met with Ms. Marshall, she reported Ben-Sholom to be obstinate and disobedient. She expressed concern that Ben-Sholom might “want to become physically violent” with her.
Id.,
page 12. Mr. Casillas’s report of his session with Ben-Sholom the next day, however, described Ben-Sholom as “in a lot of emotional pain and agony” and resentment toward his mother “for not divorcing or leaving his father.”
Id.,
at page 13.
Neither Ms. Marshall nor Ben-Sholom reported physical paternal abuse. Mr. Ca-sillas’s interview with Mr. Marshall (as part of the therapeutic process) also did not indicate abuse, although Mr. Casillas described Mr. Marshall as resentful and non-communicative. On cross examination, Mr. Casillas revealed he did not learn of the physical abuse inflicted on Ben-Sholom until he was told by Ben-Sholom’s federal habeas counsel. In the absence of knowledge about the physical abuse at the time of Ben-Sholom’s therapy, Mr. Casil-las testified his was “alarmed” by Ben-Sholom’s demeanor and emotions in wanting to kill his father. Ben-Sholom reacted to his emotions by running away from home. Mr. Casillas testified that he believed Ben-Sholom did not disclose the paternal abuse either from personal fear of retribution from his father or fear of getting his mother into trouble. Mr. Casillas also suggested that Ben-Sholom may have been coached not to disclose this information.
32
According to Mr. Casillas, Ben-Sholom responded positively to group therapy. He served as a “co-leader” with Mr. Casil-las in giving answers without prodding, openly participating in the therapeutic sessions, and helping other participants. Ben-Sholom aligned and identified himself with Mr. Casillas. Ben-Sholom also attended individual sessions. Mr. Casillas testified to Ben-Sholom’s openness, an unusual occurrence in a boy of 14. A manifestation of this candor was that Ben-Sholom cried during a group therapy session. On cross examination, Mr. Casillas testified that he did not diagnose Ben-Sholom with PTSD. Mr. Casillas was not aware of PTSD as a diagnosis outside of the combat setting. Ben-Sholom was pulled from therapy by his mother in December 1980.
33
The records reflect that on July 14, 1981, Ben-Sholom was readmitted to Kings View with the chief complaint that his mother was upset because he told her he put a contract out on his father and wanted him (the father) dead. His mother also reported he told her that if she got in his way he would kill her too and he threatened her with a kitchen knife.
Id.,
page 19. He told the therapist (not Mr. Casillas) that he didn’t care if he died and that he had considered suicide as a way of securing his release from his father. This report was taken by a social work intern under the supervision of psychiatric social worker, Carol Sawyer. In spite of this report, the therapist believed Ben-Sholom was an angry adolescent (15 years old) who was afraid of his father. She was not concerned that Ben-Sholom would actually harm either of his parents.
Id.,
page 20. Two months later, Ben-Sholom ran away from home and went to Kings View for help. On at least one occasion, he rode his bicycle from Fresno to Visalia to meet with
*1087
a counselor.
34
Each time Ben-Sholom ran away from home and sought help, he was returned home. Mr. Casillas testified that Ben-Sholom was really trying fix his life and trying to figure out what to do — again, an unusual occurrence in an adolescent boy. Mr. Casillas did not recall a Kings View report where Ben-Sholom said his father kicked him and that was why he ran away from home.
35
c. Gary Wynbrandt, M.D.
Dr. Wynbrandt, a psychiatrist, was first hired in 1995 by Ben-Sholom’s federal ha-beas counsel to provide an assessment of Ben-Sholom’s mental state in 1985. To do so, Dr. Wynbrandt reviewed numerous records and actually examined Ben-Sho-lom in person at San Quentin State Prison. The records and documents he reviewed are identified in his June 17, 1997 declaration (Exhibit 3 to the Petition), including numerous mental health expert reports, letters, test results, police reports, transcripts of Ben-Sholom’s custodial statements, medical progress notes, the deposition transcript of Dr. Richmond, and the social history of Ben-Sholom complied by Karen Froming, Ph.D.
See
summary in Part V.A.35., October 5, 2001 order.
36
In addition, Dr. Wynbrandt conducted three mental status examinations of Ben-Sholom at San Quentin State Prison, on March 22, 1995, March 28, 1995, and April 10, 1995, for a total of eight hours. Dr. Wynbrandt noted that a detailed social history is important to conducting a mental assessment. On cross examination, however, he declined to adopt the characterization that he “relied” on Dr. Froming’s social history. Rather, he utilized it, just as he did all the other information provided. Based on all the information he reviewed, plus his in-person examination, Dr. Wynbrandt concluded that Ben-Sholom suffered from PTSD at the time of the crime. He testified that this condition is commonly seen in people badly traumatized, physically, emotionally, or sexually, in early years of life. PTSD is accompanied by panic attacks, nightmares, depression, dissociation, and a volatile affect. In a person with PTSD, the “nervous system reacts as if trauma w[ere] about to occur.” PTSD was recognized in the Diagnostic and Statistical Manual (“DSM”), third edition (“HI”), first printed in 1980.
He explained the DSM classifies mental conditions based on a 5-axial system. Axis I is the acute diagnosis; Axis II is the underlying structure or core personality characteristics of the individual; Axis III involves underlying medical conditions; Axis IV measures the psycho-social stres-sors on a scale of from one to six; and Axis V quantifies the level of functioning for the previous 12 months. Dr. Wyn-brandt opined that PTSD, as well as major depressions comprised the Axis I diagnosis for Ben-Sholom at the time of the crime. He stated that major depression would
*1088
have included the state of mind of feeling hopeless, helpless, overwhelmed, withdrawn, suicidal, unhappy, prone to acting out, and distracted. Ben-Sholom’s Axis II diagnosis was identity fragmentation, a condition found in borderline personality disorder. It means the person suffers confusion about his identity, or has problems establishing his identity, accompanied by extreme displays of emotion and impulsiveness. The person would be unstable and adapts to environmental factors.
Dr. Wynbrandt concluded that Ben-Sho-lom’s PTSD resulted from the abuse he suffered as a child, including the four month period in Louisiana with his father as a toddler. He considered Ben-Sholom’s attendance at 13 schools between kindergarten and 11th grade and his residence with his grandmother and psychotic uncle as a toddler to be contributing factors.
37
The return of Mr. Marshall into Ben-Sho-lom’s life at age seven and a half was accompanied by extreme physical abuse and utter terror in the child. Abuse and depression also were evident in the fact that Ben-Sholom was accident prone. Dr. Wynbrandt mentioned the incident where Ben-Sholom slashed his wrists when he was ten years old and sought assistance from a neighbor to obtain medical attention. Sources for Ben-Sholom’s major depression included his abandonment by his mother as a young child.
38
Manifestations of his depression included his emotionally flat demeanor as a youngster, his desire to die at age ten, and the wrist slashing incident mentioned above.
With respect to Ben-Sholom’s identity fragmentation, Dr. Wynbrandt learned from Ben-Sholom that he maintained various wardrobes to represent diverse personae, including a cowboy outfit, military fatigues, special clothing for his contact with homosexual males and a “drag queen” called “Bubbles,” and a “preppie” outfit for the clean-cut personae. Dr. Wynbrandt felt that although, Ben-Sholom’s father was a horrible role model, Ben-Sholom’s affinity for the mercenary personae (military fatigues) demonstrated attachment to his father and his father’s enthusiasm for weapons. In Dr. Wynbrandt’s opinion, Ben-Sholom’s borderline personality originated when he was a toddler and went (with his mother) to live with his father in Louisiana. The abuse inflicted came during the 18 to 36 month period, where people develop separation and individuation. It was an unsafe environment. Moving back to California also was unsafe, since he was in his grandmother’s household with his psychotic uncle.
Dr. Wynbrandt testified that at the time of the crime, Ben-Sholom was acting under the substantial domination of others. He had been in basic training since he was eight years old from “the militaristic life that his father imposed when he returned to the family.” In Ben-Sholom’s family, there were two family member types: the dominator and the “submitter.” Mr. Marshall dominated; Ben-Sholom was forced to submit. Apart from that, Ben-Sholom had long been interested in the military and wanted to follow orders given by someone with his best interests in mind.
*1089
After his discharge from the Army, Ben-Sholom was desperate to find some order and to get away from his father. He looked up to Chris Seaman because Seaman “beat” cancer. Ben-Sholom was “whole cloth susceptible” to embracing instructions as to what his role should be so he could be a “good boy.” Related to this was Ben-Sholom’s interest in joining the Karen National Liberation Army so he could be a good soldier and provide a service for the good of others. In fact, Dr. Wynbrandt described this as a “flight of fantasy,” a crazy idea founded on magical thinking common in people suffering from borderline personality. He testified that magical thinking is a form of episodic psychosis.
Underlying all the foregoing was that Ben-Sholom suffered from hypertension, so much so that he was required to take medication, Inderal. Hypertension to this degree was not common for an 18 year old boy. Dr. Wynbrandt concluded that the fact of his hypertension indicated Ben-Sholom was under a lot of stress, abused alcohol, and/ or suffered from a physical/ hereditary condition. Dr. Wynbrandt discussed a major disadvantage to Inderal, namely that it was known to contribute to depression in some people. Because of this risk, Dr. Wynbrandt explained, Inderal has been discontinued for treatment of hypertension. The Physician’s Desk Reference in use at the time of Ben-Sholom’s trial indicated that Inderal had this depressive side effect.
Dr. Wynbrandt strongly disputed the conclusion of other mental health experts that Ben-Sholom was afflicted with ASPD. Ben-Sholom’s symptoms and conduct belied this diagnosis. First, as Mr. Casillas testified, when Ben-Sholom was an adolescent, he wanted to get help for his problems. He was emotive in group and well as individual therapy. Dr. Wynbrandt also referred to Judy Mayora’s penalty phase testimony about Ben-Sholom, describing him as personable and empathetic.
39
These traits are inconsistent with ASPD. People with ASPD are completely disinterested in treatment and making meaningful attachments. Dr. Wynbrandt found the interview comments from Mr. Marshall taken from Mr. Alexander’s trial investigator about Ben-Sholom wanting to belong to something also inconsistent with ASPD.
In drawing this conclusion, Dr. Wyn-brandt considered that Ben-Sholom had displayed anti-social behavior in his truancy from school, and later his drinking, as well as the fact that he showed no empathy (for Mrs. Teague) at the time of the crime when he was decompensating. ASPD remains with the person as part of the core personality structure.
Dr. Wynbrandt testified that his opinions and conclusions about Ben-Sholom were consistent with what any well-informed psychiatrist would have observed if complete information had been provided. As a mental health professional, Dr. Wyn-brandt stressed the importance of receiving all relevant information in order to conduct a valid evaluation. On cross examination, Dr. Wynbrandt confirmed that in rendering his opinion about Ben-Sho-lom, he utilized the reports of Drs. Geshu-ri, Kleist, and Glenn, all of which contained information about Ben-Sholom’s anti-social behavior.
40
Further, he testified, there
*1090
would be no point in rendering an opinion as to a person’s mental state without a clinical interview.
d. Phyllis Marshall.
Ms. Marshall’s penalty phase testimony did not give a complete picture of life with her ex-husband. During her and Ben-Sholom’s four month residence with him in Louisiana, Mr. Marshall expected 17 month old Ben-Sholom to be toilet trained and off the bottle. She testified about an occasion when Mr. Marshall grabbed the bottle from Ben-Sholom and threw it in the street and spanked or shook him if he wet his diaper. When Ms. Marshall left the room and Ben-Sholom was alone with his father, the child would go to sleep.
Approximately six years later, when Ms. Marshall married Mr. Marshall, she thought he had changed. But, he was worse and more abusive. Mr. Marshall demeaned Ben-Sholom by calling him stupid, worthless, and a punk. He demeaned Ms. Marshall be calling her a bitch, a whore, and worthless. Mr. Marshall told Ben-Sholom not to listen to his mother. He physically abused Ben-Sholom everyday, using his hand or a belt. He left bruises. Mr. Marshall also abused Ms. Marshall, usually when she tried to intervene to prevent harm to Ben-Sholom, but apart from that as well. She described that he threw her against walls. He abused Ms. Marshall in front of little Ben-Sholom. Mr. Marshall became angry everyday. Ms. Marshall testified that he “escalated himself.” His skin whitened, his eyes widened, and his mouth frothed. The hitting and abusive treatment preceded and continued while these symptoms were present.
When Ben-Sholom was 17, Mr. Marshall attempted to kill him by strangulation. Ms. Marshall tried to get police intervention, but Mr. Marshall was never arrested. Earlier in the marriage, Mr. Marshall once jumped out of bed in the middle of the night with his loaded gun running through the house and yard. Ms. Marshall testified that her marriage was like living a nightmare. She always had to be on guard. She also relayed that it was not uncommon for Mr. Marshall to run into Ben-Sholom’s room at odd times, turn it over, and then demand that it be cleaned.
Ms. Marshall testified that she gave all this background information to Mr. Alexander. He told Ms. Marshall that at penalty proceedings he would emphasize Ben-Sholom’s age and the fact that he had been programmed by his father to obey orders. He also told her that Dr. Rienzi, with whom Ms. Marshall was acquainted professionally, would testify. Then he told her that he didn’t think Dr. Rienzi’s testimony would be necessary. When Mr. Alexander prepared Ms. Marshall for her penalty phase testimony, he did not tell her what the point of her testimony would be or how it would fit into his trial strategy-
Ms. Marshall testified that when Ben-Sholom was in therapy at Kings View Mental Health Center, she told Anthony Casillas that Mr. Marshall was beating Ben-Sholom and her. Co-workers from CPS (where Ms. Marshall worked) also were aware of the abuse. Sometimes she and Ben-Sholom spent the night at homes of colleagues. She testified she never reported the abuse to law enforcement for fear that Mr. Marshall would carry through with threats of harming her or
*1091
Ben-Sholom, or that Ben-Sholom would be removed from the home.
e. Beth Rienzi, Ph.D.
At the time of her evidentiary hearing testimony (February 2003), Dr. Rienzi had been a professor of clinical psychology for 14 years, principally psychological testing under the DSM. Her evidentiary hearing testimony was consistent with a declaration she executed on June 14, 1997 (Exhibit 1 to the Petition).
41
When she was retained by Mr. Alexander in 1985, the reference question was vague. She understood that he wanted an overview of Ben-Sholom’s personality and what was going on with him mentally. In her 1985 report (Exhibit 27 to the Petition), she described her assignment was to provide a psychological evaluation “to obtain a picture of Ryan’s [Ben-Sholom’s] personality, character and functioning and to help clarify his motives and behaviors during the alleged crime.” She was not asked about specific sentencing factors, or anything referencing penalty. Mr. Alexander did not tell Dr. Rienzi his purpose in seeking her assistance. She was not provided with any records. She explained that records are very important when conducting a forensic psychological evaluation because they provide corroboration for information given by the subject. Generally, when conducting a forensic evaluation, she is suspicious of what defendants tell her. This follows because when the subject is accused of a crime, there is a secondary gain involved.
With respect to Ben-Sholom, she administered psychological tests and conducted a clinical interview. Psychological tests provide profile characteristics on a probability basis. Conducting a clinical interview is part of the testing process. There was never any discussion with Mr. Alexander about her just conducting tests without a clinical interview. A true evaluation requires a clinical interview. She also testified that it’s important to have both “the good and the bad” information about a person. In Ben-Sholom’s case, when she finally was able to review all the available information prior to her 1997 declaration, her view of Ben-Sholom was “clarified.”
When she first met Ben-Sholom in 1985, he was hard to like. He presented himself in a very inflated manner, but also appeared very helpless. For Mr. Alexander to have withheld unfavorable information from her made no sense to Dr. Rienzi, since Ben-Sholom told her (and his other examiners) everything bad anyway. Dr. Rienzi discounted his reports of abuse because she knew his mother, Ms. Marshall, and Ms. Marshall would have known that the kind of abuse Ben-Sholom described was severely damaging. Dr. Rienzi thought Ben-Sholom might have made up stories to discredit his mother. Although Dr. Rienzi recorded in her notes that Ben-Sholom reported childhood suicide ideation and a purposeful Inderal overdose, she did not include or factor in this information into her 1985 report based on questionable credibility. In her experience many people have their first suicidal thoughts after being incarcerated. She acknowledged on cross examination that the test results reported in the 1985 report that showed Ben-Sholom to be oppositional, unconventional, rebellious, and having a lack of empathy.
But being able to confirm this pre-crime suicide ideation would have been very important. It was not until Dr. Rienzi re
*1092
viewed records provided by federal habeas counsel that she could corroborate Ben-Sholom’s suicidal thoughts. As stated in Dr. Rienzi’s 1997 declaration, she reviewed Dr. Richmond’s deposition transcript, police reports, Ben-Sholom’s custodial statements, penalty phase testimony of Ben-Sholom’s grandmother and Mend, Judy Mayora, juvenile records pertaining to Ben-Sholom’s burglary of his mother’s house, Kings View records, medical records, school records, and Dr. Froming’s social history report. The Kings View records, for instance, indicated that Ben-Sho-lom may have attempted his first suicide when he was nine years old, as well as that he suffered from chronic dysthymic (chronic depression) disorder. Similarly, she felt that several conclusions stated by Dr. Richmond in his deposition testimony supported a potential diagnosis of PTSD, as well as depression. Dr. Rienzi believed that the dissociation Dr. Richmond observed was especially indicative of PTSD.
Even without the benefit of substantiated background information, in 1985, Dr. Rienzi hypothesized that Ben-Sholom suffered from PTSD at the time of the crime and before. She felt in 1985 it was a 60% probability, which she described as “greater than chance.” She pointed out during her evidentiary hearing testimony that PTSD was a diagnosis in the DSM since 1980 and by 1985 was associated with victims of domestic violence, rape, torture, and child abuse, including at Kings View. She would have used PTSD in 1985. At that time, she likewise thought there was a 60% probability that Ben-Sholom was acting under the substantial domination of others when he shot Mrs. Teague. She did not include either of these or any other diagnosis in her 1985 report because she was not asked to provide a diagnosis.
After reviewing the Kings View records, the deposition transcript of Dr. Richmond, and other records, she believed that the probability Ben-Sholom suffered from PTSD was 90%. Knowing his background also lead her to believe there was a probability greater than 60% that he acted under the substantial domination of others at the time of the crime. The fact that Ben-Sholom was “in charge” of the “mission” when he and his companions left the Teag-ue residence did not detract from Dr. Rienzi’s opinion that he acted under substantial domination. He knew the roads. Assuming the role of “soldier,” he was an integral part of the “unit.”
The psychological testing in 1985 revealed dissociation and identity fragmentation, which is' part of a borderline personality disorder. She testified that dissociation can follow trauma and is a form of magical thinking, usually to escape ' something horrible. ■ After looking at the records, she realized that Ben-Sholom had been subjected to psychological torture. Based on the accounts of the home life given by Ms. Marshall and observations by Ben-Sholom’s grandmother, Mrs. Muldworf, Dr. Rienzi saw that Ben-Sholom actually believed he was going to be killed. The childhood trauma contributed to Ben-Sho-lom’s inability to develop “self.” At the time of the crime, because Ben-Sholom wanted to be part of a greater whole, he felt helpless when holding a gun to Mrs. Teague because he had no “back up.” The information obtained from Mr. Marshall’s interview (about Ben-Sholom walking off a cliff if so ordered) led her to understand that Ben-Sholom was extremely obedient.
42
Mr. Marshall inflicted militaristic terror. When Ben-Sho-lom followed the command to kill Mrs.
*1093
Teague, he was playing the role of “good soldier.” In this fantasy, he was influenced by superiors. He assumed roles because of his identity problems. She also opined that the trauma Ben-Sholom suffered during the four-month period he lived with his father in Louisiana as a toddler contributed to his fragmentation identity disorder. Statistically, two years of age is very significant, because children understand when they’re not supposed to do something, but they can’t stop themselves. Most adults diagnosed with borderline personality disorder have had disruptive experiences when they were between 18 months and three years old.
Dr. Rienzi believed the lack of remorse Ben-Sholom expressed in his first custodial statement also stemmed from lack of appropriate separation identity from trauma to his development when he was a toddler living with his father in Louisiana. The subsequent abuse inflicted on Ben-Sholom after Mr. and Ms. Marshall married made Ben-Sholom a constant victim, leaving him unable to empathize.
She concluded that much of Ben-Sho-lom’s pre-crime conduct was antithetical to a diagnosis of ASPD. He voluntarily attended therapy sessions at Kings View to seek help dealing with his difficult home environment. People with ASPD do not look for help. Ben-Sholom’s post-conviction conduct, including regular correspondence also is inconsistent with ASPD. To the extent Ben-Sholom showed anti-social behavior in his late teens, Dr. Rienzi concluded this was a reaction to his environment rather than an underlying core structure of his personality.
Knowing a defendant’s mental state before the crime is helpful to determining the mental state at the time of the offense. Ben-Sholom lived a fantasy world. He assumed different roles. What he reported to Dr. Rienzi during the 1985 interview was colored with what he wanted to be like. He had a major depressive episode in 1983 (referring to his medical discharge from the Army) which was superimposed over his dysthymic disorder that continued to the time of the crime. He experienced double depression. He was suicidal and romanticizing death. A suicidal person is not adverse to killing another, since life isn’t valued.
f. Neil Pereira.
Mr. Pereira was the Assistant Public Defender in Tulare County during Ben-Sholom’s trial. He testified Mr. Alexander was given a light load during the period he represented Ben-Sholom. Mr. Alexander did not consult Mr. Pereira for advice about strategy. In 1985 and 1986, mental health experts were utilized for most murder cases. It was the practice in the Public Defender’s Office at that time for lawyers to turn over social history material to mental health experts, otherwise, Mr. Per-eira commented, there was no reason to have an expert.
43
The background information was provided so usable input from the expert could be obtained. After Mr. Pereira became the Public Defender for Tulare County in 1987, this practice became a
rule
in the office, a rule implemented because of omissions in Ben-Sholom’s case. After Mr. Pereira became the Public Defender, there was one occasion where an attorney did not turn over background information to the mental health expert, but his was only after consultation with him (Mr. Pereira). Mr. Pereira, personally, turned over all social history material to mental health experts in
all
homicide cases.
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g.
Phillip Cherney.
Phillips Cherney testified as Ben-Sho-lom’s designated expert under
Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). His background as a capital case defense attorney includes working for the Tulare County Public Defender’s Office from 1987 through sometime in the early 1990s.
44
Roger Alexander was no longer working for the Office when Mr. Cherney started. In preparation for his testimony, Mr. Cherney reviewed the Court’s October 5, 2001 order, portions of the petition, the Clerk’s Transcript, the Reporter’s Transcript, the Warden’s pleadings, exhibits, declarations, opening and closing statements from the guilt phase proceedings, the deposition transcript of Dr. Richmond, and the penalty phase proceedings. He concluded that Mr. Alexander did not provide constitutionally adequate representation at Ben-Sholom’s penalty phase.
The purpose of presenting a mitigation case at a penalty phase trial should be to explain “how” and “why” a crime has been committed. Mr. Alexander did not do this. Further, competent counsel would have begun developing “themes” for the guilt
and
penalty phase proceedings long before jury selection. In Ben-Sholom’s trial, however, the only consistent theme utilized by Mr. Alexander was Ben-Sholom’s young age. It wasn’t until Mr. Alexander presented his motion to modify the death verdict that he mentioned mental and psychological issues, and even then, he didn’t argue Ben-Sholom’s remorse. And, although the trial judge found that Ben-Sholom expressed remorse for the crime during his penalty phase testimony, and that this was a factor in mitigation of the sentence, he still found that none of the witnesses offered an explanation of any circumstances which would extenuate the crime. Later, Mr. Alexander focused his efforts on getting jury instructions that Ben-Sholom’s lack of prior felony convictions and lack of unadjudicated criminal violence were mitigating. He also determined at some point that he wanted to “humanize” Ben-Sholom. Mr. Cherney concluded Ben-Sholom’s was “a rich case in mitigation.” The potentially successful themes included Ben-Sholom’s age, his remorse, psychological issues, family issues, paternal abuse, and trauma.
Mr. Cherney was especially critical of Mr. Alexander for not supplying his retained experts with relevant background information, including the legal standards (sentencing factors) and Ben-Sholom’s social history. The experts needed to have a “big picture” of the trial strategy in order provide any helpful information. This would have included understanding the difference between mental state defenses and mitigation evidence. Instead, he was so worried about giving “bad information” to the experts that they received no helpful information. In Mr. Cherney’s opinion, the damaging information was mild compared to the magnitude of the mitigating benefit. Mr. Alexander should have utilized the research information he acquired about the Karen National Liberation Army. He should have argued intercase proportionality to the jury instead of waiting until the sentence modification hearing. On cross examination, Mr. Cherney testified that what Mr. Alexander did correctly was to send Dr. Kleist in to see Ben-Sholom for an initial evaluation. Where he
*1095
faltered was in not sharing the many records he had in his possession, including school, medical, and Kings View counseling records. Further, although Mr. Alexander requested numerous documents, he could not recall reviewing them. Nor was there an indication in his trial file that he read them (because no notes were made on or about the records).
Aside from not supplying sufficient background information to his experts, and not promptly ascertaining what relevant background information existed, Mr. Alexander’s approach to Dr. Richmond’s deposition was inadequate. He asked questions which seemed intended to elicit a diagnosis from Dr. Richmond, even though the doctor did not render a diagnosis. On the other hand, Mr. Alexander asked Dr. Richmond no questions about Inderal. There was plenty of helpful information developed in Dr. Richmond’s interview with Ben-Sholom, including the recounting various paramilitary experiences as reality, when Dr. Richmond was concerned those accounts were fantasy, the fact that Ben-Sholom was terribly unhappy and near tears during the interview, Ben-Sholom’s report that he was depressed, began having suicidal thoughts in grade school, and a history of family mental illness. Dr. Richmond’s observations would have been helpful to develop mitigation evidence. After reviewing the records and even after listening to Dr. Richmond’s evidentiary hearing testimony,
45
he felt that Mr. Alexander’s fear of what Dr. Richmond might have said as a rebuttal witness was irrational. The fear resulted from Mr. Alexander’s failure to conduct “a reasonably adequate investigation.” Mr. Alexander’s concern about the uncorroborated account of Ben-Sholom beating up another child on the playground was completely unfounded because Ms. Marshall reported that no such incident ever occurred. In any event, evidence of such a school yard fight would not have been admissible under § 190.3(b) (uncharged criminal acts) because there was no way to prove it beyond a reasonable doubt. In any event, the prosecutor, Mr. Walton, gave an affirmation that he would not put on the damaging evidence developed during Dr. Richmond’s interview. Mr. Alexander’s stated distrust for Mr. Walton does not excuse him for not developing a mitigation case. If he distrusted Mr. Walton, he should have brought a motion; the judge was available for this purpose.
46
It was not a reasonable strategy for counsel to forego the benefit of Dr. Rienzi’s testimony on the chance that Dr. Richmond might mention the uncorroborated playground incident.
Mr. Cherney did not agree that Mr. Alexander’s strategy for keeping Ben-Sho-lom’s murderous thoughts concerning his father from the jury was reasonable. This information would have been consistent with the mitigation case which was never presented, and relevant under factor (k). Abuse was a major force in developing Ben-Sholom’s character. Mr. Alexander
*1096
could have shown that the act of killing Mrs. Teague was indirectly related to Ben-Sholom’s abuse as a child and adolescent. The abuse would have been corroborated by Ms. Marshall.
47
Next, he believed Mr. Alexander should have moved to limit Dr. Richmond’s potential rebuttal testimony before the guilt phase commenced. There was a pre-voir dire hearing on January 9, 1986 hearing date at which this could have been accomplished. At the suppression hearing, on this same date (where Mr. Alexander unsuccessfully sought to exclude Ben-Sho-lom’s confession), Ben-Sholom’s testimony did not reveal his mental problems. That hearing could have been a good opportunity for Mr. Alexander to introduce Ben-Sholom’s mental problems. There also was conflicting and confused evidence presented about the effect of Inderal and Inderal deprivation, and nothing that would benefit the defense during penalty proceedings. In fact Mr. Alexander undermined a potential penalty issue by having Ben-Sholom and his mother testify that Inderal had no impact on Ben-Sho-lom’s mental state. If Inderal was a “theme,” it was not developed. From Mr. Cherney’s review of Mr. Alexander’s files, it became clear to him that even as late as jury selection, no decision had been made as to what, if anything, to do about the Inderal issue. Mr. Alexander had among his files a Harvard Medical school article about increased anti-depressant use for people taking high blood pressure medication (beta blockers). There was an internal memorandum asking for someone in the Tulare Public Defender’s office to call the Harvard doctor to obtain additional information. Mr. Alexander had no strategy, as seen by the fact that he told the Court he would have at least a two day to one week penalty case (when in fact he had a two and one-half hour penalty phase).
Next Mr. Cherney testified that the jury questionnaire Mr. Alexander used was so general it could have been used in any case. This was another indication that Mr. Alexander had no strategy. As explained by Mr. Cherney, the purpose of a questionnaire was to flesh out “themes” to be presented to the jury. Similarly, Mr. Cherney testified that the purpose of voir dire, both at the time of his testimony and in 1986, was to qualify jurors for service at the penalty phase and communicate the defense themes. The voir dire questions Mr. Alexander asked did not demonstrate that he was considering the lack of prior convictions and uncharged criminal activity. Further, he never even confirmed with potential jurors that they would consider Ben-Sholom’s youthful age as mitigating. The most he did in that regard was to call Ben-Sholom by his first name, “Ryan.” In addition, Mr. Cherney stated that Mr. Alexander
should have
asked
all
the jurors if Ben-Sholom’s remorse was mitigating. He asked only one juror this question. Mr. Alexander also should have explored Ben-Sholom’s childhood abuse and his submission to others by presenting psychological experts consistent with the sentencing factors under § 190.3(d) (extreme mental or emotional disturbance), § 190.3(g) (substantial domination), § 190.3(h) (impairment due to mental disease or defect), and § 190.3(k) (any other mitigating catchall).
Mr. Cherney was critical of Mr. Alexander’s brief guilt phase opening statement, where he could have raised the penalty phase themes. Since Mr. Alexander testified he believed a penalty phase was inev
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itable, bringing penalty phase issues to the jurors’ attention at the beginning of guilt phase proceedings would have been helpful. While conceding that Ben-Sholom did kill Mrs. Teague in the course of a perceived military mission that ultimately would take Ben-Sholom and his companions to Burma was acceptable, Mr. Alexander’s failure to emphasize and directly tell the jurors that the ultimate goal amounted to pure fantasy was professionally incompetent. Instead, Mr. Alexander told the jurors they would have to determine whether the military purpose of the crime was reality or fantasy. In the same light, when he described the military mission aspect of the crime, Mr. Alexander also could have introduced the domination-submission theme when referring to Ben-Sho-lom following orders.
Mr. Alexander’s guilt phase summation actually discredited mitigating factors when he told the jurors there was no evidence Ben-Sholom was so entrenched in a military mission so as not to know what he was doing. In Mr. Cherney’s opinion, Mr. Alexander should have told the jurors what to think about the bizarre mission of joining the conflict in Burma. Further, while Mr. Alexander’s statements about Ben-Sholom following orders without thinking suggested the substantial domination theme, his introduction of Ben-Sholom’s Army discharge papers confused the issue.
48
Mr. Cherney found the penalty phase opening statement wanting in several respects, beginning with its brevity, only five minutes long. Passing over many viable mitigation themes, Mr. Alexander referenced Ben-Sholom’s hypertension and In-deral use. He failed, however, to explain how these topics might have been mitigating. He also never mentioned the import of Ben-Sholom being dressed up in military clothing as part of the fantasy aspect of the operation.
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Nor did Mr. Alexander mention Ben-Sholom’s mental or emotional state at the time of the crime. Mr. Cherney found the entire penalty phase presentation to be at cross purposes. Mr. Alexander called Ben-Sholom’s mother to show mental health issues resulting from abuse, but then presented Judy Mayora to show that Ben-Sholom was just a regular kid, with some depression and bruises. Instead, Ms. Mayora’s testimony could have been used to show that her house was a refuge for Ben-Sholom.
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Likewise, the testimony of Sea Scout leader Henry Bethany illuminated nothing in Ben-Sholom’s life that would explain the crime.
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Introducing Ben-Sholom’s childhood photographs was meaningless because there was no effort to connect them to memorable events in his life. Finally, other than discussing his remorse for killing Mrs. Teag-ue, Ben-Sholom’s testimony was not helpful. He discussed his ankle injury, but not the facts leading up to it, that is it occurred when Ben-Sholom had run away from home to meet up with his overweight half-brother who caused Ben-Sholom to tip his motorcycle. Nor did Ben-Sholom discuss that the ankle injury led to the termination of his military career and the
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beginning of a major depression. Mr. Cherney found especially damaging Ben-Sholom’s mention of the type of reading material he hoped to pursue if sentenced to life in prison: science fiction and horror books. Mr. Alexander didn’t seem to know Ben-Sholom would identify these types of books, which can be associated with future dangerousness in the minds of jurors. If Mr. Alexander was trying to show the potential for good institutional adjustment, the strategy backfired. Instead, Mr. Cherney opined, he should have called an institutional adjustment expert like Mr. James Park. Also, if he really saw Ben-Sholom’s remorse as a “theme,” he should have mentioned that subject during his penalty phase summation and in the jury instructions. Ben-Sholom’s testimony also raised the substantial domination issue when he said he followed the order to kill Mrs. Teague “without question.” There was no follow up on the idea that Ben-Sholom followed this order because he wanted to be part of a greater whole.
The stipulation Mr. Alexander offered as to what prescription drugs Ben-Sholom took was equally unavailing because there was no concomitant explanation about why the drugs were necessary. Mr. Alexander should have explored why an 18 year old boy had high blood pressure and needed Inderal in the first place. He could have presented argument about the effects of Inderal under the catchall factor § 190.3(k), or one of the deleted factors § 190.3(d) or § 190.3(h). He also could have shown that Ben-Sholom was a human being who made an extremely bad decision stemming from emotional disturbance.
The summation also was contradictory. First Mr. Alexander earnestly asked the jury to consider sympathy, but he did not do so forcefully or convincingly, as he followed this request by asking the jury to follow the law. Mr. Cherney found this professionally incompetent because sympathy, mercy, and compassion “are probably the hallmarks of the mitigation case.” Although he knew the jurors were supposed to weigh, and not count, the mitigating and aggravating factors, he basically asked them to count the circumstances of the crime factor (a) against the three mitigating factors, his age under factor (i), the absence of uncharged criminal acts under factor (b), and the absence of prior felony convictions under factor (c), plus the catchall factor (k), which could be mitigating. In Mr. Cherney’s view, Mr. Alexander totally failed to explain how the law was to give effect to the mitigating factors. The summation was transcribed into 12 pages, which translated into 15 to 20 minutes. Giving only that brief time to arguing for Ben-Sholom’s life was, in Mr. Cherney’s opinion, “pathetic, frankly.”
With respect to Mr. Alexander’s eviden-tiary hearing testimony (which Mr. Cher-ney observed from the public gallery), he strongly disagreed that jurors would necessarily reject mental defenses or a substantial domination argument as excuses. In his experience as a Tulare County Deputy Public Defender, it was possible to convince jurors that mental defenses were mitigating. Mr. Alexander didn’t really know how to put on a penalty case. His only experience was in guilt phase proceedings.
Mr. Cherney then testified about a number of publications available at the time of Ben-Sholom’s trial about the then-prevailing standards and procedures for handling a capital trial and penalty phase proceedings. There was a Summer/ Fall 1985 edition of the
California Defender
about how to present a penalty phase argument, entitled “Building a Penalty Phase Final Argument.” The
California Defender
article was marked and admitted at the evi-dentiary hearing during Mr. Cherney’s
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testimony as Exhibit 10 to the EHT. There was the Gary Goodpaster article of 1983 which was cited by the Supreme Court in
Strickland. See
466 U.S. at 689-90 , 104 S.Ct. 2052 .
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In sum, Mr. Alexander failed to conceptualize how the penalty phase would be implemented in a coherent fashion and consequently did not develop a mitigation strategy. Despite these failings, the jurors deliberated for almost 17 hours. That they were confused and poorly directed by Mr. Alexander’s mitigation case, was evident from their questions during deliberations. First they didn’t know how the medications fit into the murder plot. Second, they really didn’t understand mitigation and aggravation.
5. The Warden’s Response to Ben-Sholom’s Evidence.
Dr. Richmond and Dr. Geshuri testified for the Warden, both concluding on direct examination that Ben-Sholom’s crime most reasonably was explained by ASPD. They discounted PTSD, substantial domination, and other emotional disturbance. The Warden also contacted Dr. Kleist for an expert opinion, but Dr. Kleist declined to participate in the litigation process, as explained in his November 26, 2002 declaration admitted on behalf of the Warden. Exhibit C to the EHT. Similarly, the Warden contacted Dr. Glenn to ascertain whether the provision of additional background information would facilitate the rendering of a diagnosis as to Ben-Sho-lom’s mental state. Referring to an earlier declaration executed on November 27, 2001 (and prepared by Ben-Sholom’s attorney Patience Milrod), Dr. Glenn declined the Warden’s request, as explained in his handwritten letter. Exhibit D to the EHT.
a. Yosef Geshuri, Ph.D.
When Mr. Alexander hired Dr. Geshuri in 1985 to interview Ben-Sholom, he provided no reference question and no background information. He also didn’t tell Dr. Geshuri he was the third mental health professional to have seen Ben-Sholom. Mr. Alexander stated he wanted a general assessment, a “snapshot” of Ben-Sholom. Dr. Geshuri administered psychological tests and conducted an interview. Both the clinical interview and the testing were important for reciprocal validation.
The backdrop for Dr. Geshuri’s eviden-tiary hearing testimony was a report he prepared for the Warden’s counsel, Deputy Attorney General Jean Marinovich dated November 22, 2002, and offered by the Warden as Exhibit E to the EHT. In that report he concluded that Ben-Sholom might have been under the influence of extreme mental or emotional disturbance, but only in a general way, the claim Ben-Sholom was under the substantial domination of another person was “somewhat stretching the point,” and that Ben-Sho-lom was not so impaired by mental disease or defect at the time he committed the crime so that he could not appreciate the criminality of his conduct.
Testifying about his initial contact with Ben-Sholom, Dr. Geshuri stated that his psychological test results were consistent with the results obtained by Dr. Rienzi in 1985. One of those tests measures lack of subject credibility. Like the score Dr. Rienzi obtained, Dr. Geshuri scored Ben-Sholom high on this (in)validity scale, which indicated that Ben-Sholom may have been trying to feign some personal
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difficulties. With respect to the clinical interview, Dr. Geshuri agreed, generally, it would be important to have a client’s social history. However, when a client was referred by counsel, he assumed the client would be truthful. On the other hand, he also conceded that a client suffering from mental illness might not give an accurate self-report. During the clinical interview of Ben-Sholom, he reported that his father was abusive. Dr. Geshuri testified he had no reason to doubt this account. In his initial 1985 report, Dr. Geshuri gave only an Axis II diagnosis of ASPD. There were no Axis I, III, IV, or V diagnoses.
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With respect to the Axis III diagnosis, Dr. Geshuri testified he didn’t know Ben-Sho-lom suffered from hypertension, because it wasn’t reported. Other facts that Dr. Geshuri didn’t know at the time he rendered his ASPD diagnosis in 1985 include that Ben-Sholom attempted suicide four months before the crime with an Inderal overdose, cut his wrist at age nine or ten, had suicidal thoughts since age ten, played “chicken” with diesels on the freeway, experienced blackouts, had been in counseling at Kings View Mental Health Center, was depressed 95% of the time, suffered from insomnia, experienced a loss in appetite, was subjected to a forced religious conversion from Judaism to Jehovah’s Witnesses, was subjected to hateful anti-Semi-tism by his father, was strangled by his father when he was 17, experimented with homosexuality, including with “drag queens,” and expressed remorse for the crime on January 28, 1985, both in his confession and during his interview with Dr. Richmond.
Dr. Geshuri’s notes of his 1985 interview did indicate that Ben-Sholom reported having attended 13 different grade and high schools as a youngster, but this information was not included in any of his reports. He justified this omission because attendance at many schools was the natural consequence of the family moving a lot. Although he discounted the significance of this occurrence, he conceded on cross examination that subjecting a child to frequent moving could be stressful because of lack of emotional stability. When discussing the religious aspects of Ben-Sholom’s upbringing, Dr. Geshuri testified it was significant that Ben-Sholom’s father called him “hebe” or “kike,” and this very well could have led to stress, anger, fear, and impairment to sense of self. With respect to Ben-Sholom’s homosexuality, Dr. Geshuri testified that sexual identity and confusion were important areas of concern. On cross examination, Dr. Geshuri conceded he missed a lot of important events in Ben-Sholom’s life. This omission was attributed to at least two causes; that Dr. Geshuri didn’t ask all the appropriate questions and the Mr. Alexander didn’t give him appropriate guidance with his vague reference question. He testified that the reference question is very important because it sets the framework for the evaluation. The reference question should be specific and tie the question into legal principles relevant to the case. Since Dr. Geshuri’s experience being retained by Mr. Alexander, he testified he learned to clarify reference questions with attorneys.
In Dr. Geshuri’s 2002 report, he acknowledged that Ben-Sholom was abused and traumatized by his father and that he may have suffered from PTSD. Nonetheless, Dr. Geshuri did not believe these factors mitigated or even affected his mental state at the time of the crime. He based
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this conclusion on the absence of any indication in the Kings View records that Ben-Sholom had PTSD. Dr. Geshuri also discounted PTSD as a cause for Ben-Sho-lom’s participation in the crime because his participation involved advance planning, forethought, and distribution of responsibility (for certain aspects of the crime). Whereas PTSD would be characterized by anxiety, depression, panic, and thoughtlessness, in Dr. Geshuri’s opinion, the Teague home invasion operation “went with a kind of calmness and logical ... process.” Further, Ben-Sholom reported the crime with a sense of pride and fulfillment of a verbal contract and there was no sense that Ben-Sholom was fearful during the crime. Dr. Geshuri did not believe Ben-Sholom killed Mrs. Teague as the result of fear-induced PTSD; the killing was a planned military operation motivated by Ben-Sholom’s wanting to be considered reliable in the eyes of his “commanding officer.” The well-planned character of the crime together with Ben-Sholom’s intelligence also led Dr. Geshuri to discount the potential that extreme emotional disturbance might have mitigated the crime. On balance, Ben-Sholom’s goal of becoming a mercenary outweighed any emotional distress he may have been experiencing. He conceded, however, that even intelligent, logical thinking people can be afflicted with mental disorders.
On cross examination, Dr. Geshuri explained that the criteria for PTSD included narcism, a histrionic or borderline personality, dysthymia, and dissociative disorder. Neither intelligence, nor lack of intelligence were criteria. When told that Kings View therapist Anthony Casillas did not believe PTSD was in use as a diagnosis at the time of Ben-Sholom’s treatment, Dr. Geshuri admitted that the lack of an earlier PTSD diagnosis could have been the result of an oversight.
In rendering his 2002 report, Dr. Geshu-ri considered the fact that Ben-Sholom had been subjected to severe and consistent abuse, a fact he admitted he had not known at the time he wrote his 1985 report. He testified that the abuse was significant. According to a study with which he agreed,
54
abuse can physically alter brain development, particularly if it begins early in life. Dr. Geshuri’s evidentiary hearing testimony as well as his 2002 report also took into account the information in Dr. Froming’s social history report that Ben-Sholom lived with and was abused by his father when he was 17 to 21 months old. In particular, Ben-Sholom was punished for not being toilet trained. Dr. Geshuri discounted the abuse from this period because it was brief, he soon returned to the safety of his grandmother’s home, and he would have no cognitive memory of this period. He conceded, however, that it could have had some impact. In a letter written by Ben-Sholom’s attorney Ms. Milrod to Dr. Geshuri on May 14, 2002,
55
she confirmed his view that severe abuse can result in the deterioration of the neuropathological process, that the abuse inflicted on Ben-Sholom in particular resulted in his rage, anger, and depression, that Ben-Sholom manifested some components of borderline personality disorder (as found by both Dr. Richmond and Dr. Wynbrandt). Dr. Geshuri testified further that Mr. Marshall’s unpredictability could have induced terror in Ben-Sholom when he was a little boy. He
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wanted to join the Army because it was regulated and predictable. Basic training for Ben-Sholom probably was much easier than his home life. Ben-Sholom’s life goal was to be a soldier and to escape from his mother and father.
Dr. Geshuri concluded in his 2002 report that victims often identify with their aggressors to reduce the level of negative interaction, and apparently Ben-Sholom adopted his father’s character. This was not an issue in mitigation, but rather, a psychological process. Dr. Geshuri found that Ben-Sholom was depressed over the loss of his future dreams (becoming a mercenary) not over past abuse. In testimony elicited on cross examination, Dr. Geshuri clarified that Ben-Sholom was depressed about his broken dreams as well as his past abuse.
The conclusion that Ben-Sholom’s participation in the crime was not based on substantial domination drew support for Dr. Geshuri from Ben-Sholom’s view of the military operation or “mission.” Ben-Sholom voluntarily entered into a contract. He was not coerced; there was no forceful influence. Dr. Geshuri explained that substantial domination refers to the relationship between a dominant person and a submissive person and then to the mental state of the submissive person being susceptible to influence of another. When questioned further on this topic, Dr. Gesh-uri admitted that he was not aware that Dr. Richmond wrote in a January 1, 2003 report that Ben-Sholom displayed a histrionic personality disorder.
56
Dr. Geshuri testified this condition may have been present in Ben-Sholom and that one of the traits of histrionic personality disorder is being suggestible or easily influenced by others. He agreed that an easily influenced person could go along with something voluntarily and still be considered to be “influenced.”
Despite Ben-Sholom’s perception of the crime as a military operation, he retained the ability to appreciate the gravity of his crime. Cognitively, he knew what he was doing and chose to do it. Dr. Geshuri described his own involvement in “special forces” in the Israeli Army and thus he was familiar with how operations were conducted. A soldier is called upon to follow a pre-planned operation. Dr. Gesh-uri confirmed that his own experience in the Israeli military taught him about military cohesion and structure. Although Dr. Geshuri agreed that Ben-Sholom’s plan for joining the Karen National Liberation Army was “crazy,” far-fetched from reality, fantastical, and the product of magical thinking, it wasn’t crazy to Ben-Sholom. Ben-Sholom’s expressed pride in killing Mrs. Teague so as to eliminate suffering did not show that he identified with her, it showed, rather, that he didn’t want to be identified with his father; he didn’t want her to suffer as his father had made him suffer.
Dr. Geshuri did not find that his original diagnosis of ASPD was minimized or mitigated by the fact that Ben-Sholom maintained correspondence in prison. A classic trait of ASPD is basic selfishness. Writing to people could be motivated by selfishness. Dr. Geshuri’s impression that Ben-Sholom had ASPD, both in the 1985 and 2002 reports was based on his lack of remorse for the crime, since people with ASPD do not show “true” remorse. He admitted that Ben-Sholom’s active participation in counseling at Kings View undercut this conclusion, but sometimes people with ASPD like to have someone listen to
*1103
them. Although deceit and manipulation are traits associated with ASPD, and Ben-Sholom was open and honest in his confessions to authorities, Dr. Geshuri did not feel this honesty dispelled the ASPD diagnosis, because giving a confession is not a normal life situation. Another trait associated with ASPD is irresponsibility. When pressed, Dr. Geshuri agreed that Ben-Sholom’s post-conviction conduct in prison of challenging the rule forbidding him from wearing his yarmulke in the visiting area was a responsible act. Ben-Sholom’s attorney Michael R. Levine,
57
explained to Dr. Geshuri that the rule challenge required two levels of administrative review to the Department of Corrections and ultimately a petition for habeas corpus relief in the Superior Court granting him the requested relief.
58
Likéwise, although a defining criteria of people with ASPD is being cynical, callous, and lacking empathy, Ben-Sholom’s preparation of a San Quentin prisoner resource directory
59
demonstrated sympathy and concern for others. Pointing out that people with ASPD “remit” when they enter their fourth decade,
60
Dr. Geshuri did not concede that the directory dispelled the notion that he had ASPD. When Mr. Levine explained that Ben-Sholom prepared the directory ten years earlier, when Ben-Sho-lom was in is 20s, Dr. Geshuri responded that Ben-Sholom was smart and that he didn’t actually know whether Ben-Sholom was manipulating the system.
b. James Richmond, M.D.
As with Dr. Geshuri, the backdrop for Dr. Richmond’s evidentiary hearing testimony was his preparation of a report for the Warden’s counsel, Ms. Marinovich, on January 1, 2003. Exhibit F to the EHT. To prepare this report, Dr. Richmond reviewed numerous school and medical records, including Kings View records, transcripts of Ben-Sholom’s confessions, his own January 28, 1985 examination notes of his interview with Ben-Sholom, the reports prepared for Mr. Alexander by Drs. Kleist, Glenn, Rudis, Geshuri, and Rienzi, the declaration of Dr. Wynbrandt, penalty phase testimony, Ms. Marshall’s questionnaire responses,
61
and Dr. Froming’s social history report. Based on his review of this information, Dr. Richmond concluded Ben-Sholom’s psychiatric condition at the time of the offense was indicative “of a severe personality disorder” summarized in the DSM as “Cluster B Personality Disorders,” including ASPD, borderline personality disorder, histrionic personality disorder,
62
and narcissistic personality dis
*1104
order. ASPD and borderline personality disorder dominated. He criticized Dr. Rienzi’s 1985 and 1997 reports because she ignored anti-social, borderline, and psychotic elements in her interpretation of psychological test results. He criticized Dr. Wynbrandt’s June 17, 1997 declaration for purporting to conclude from his 1995 clinical interview and review of records that Ben-Sholom did not harbor the requisite legal mental state to commit robbery and murder in 1985. He also strongly stated that a person’s genetics, not just his environment, play a key role in shaping personality, attitudes, and behavior. Dr. Richmond found similarities between Ben-Sholom’s dispassionate, emotionally detached conduct at the time of the crime, and his father’s inability to express empathy. He did not find Ben-Sholom’s emotional detachment to be a psychotic state. At most, it could have been indicative of a dissociative disorder.
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With respect to PTSD, Dr. Richmond wrote, “[w]hile there appears to have been more than sufficient cruelty and abuse to contribute to such a disorder, the presence of that abuse does not in itself determine that it [PTSD] will occur.” Dr. Richmond concluded that even if Ben-Sholom suffered from PTSD, his conduct in participating and committing the crime showed him to be “an intellectual planner, consenter, and participant.” Dr. Richmond rejected the notion that Ben-Sholom was substantially dominated by others at the time of the crime, and posited that based on “the intensity of his [Ben-Sholom’s] determination to obtain weapons and his desire to become a mercenary following his failure in the Army, he appears to have had the strongest motive of the three [Chris Seaman, John Calhoun, and himself] to carry out the crime.” If he was controlled, Dr. Richmond opined, “it was not by another person but by his own base and anti[-]soeial motives.” He also rejected the notion that Ben-Sholom experienced true remorse for killing Mrs. Teague or was so impaired he could not appreciate the criminality of his conduct. Dr. Richmond found Ben-Sholom “was very much in control but unwilling to deal with his conscience,” and therefore he “continued with the military charade that made it acceptable to him to express his pent up, murderous rage upon a hapless and helpless victim, rationalizing the while that he was only a soldier following orders.”
At the evidentiary hearing Dr. Richmond reiterated his conclusions that Ben-Sholom may have suffered from PTSD, but that this was not a major factor in the crime. He discounted Ben-Sholom’s severe emotional disturbance, mental impairment to appreciate the criminality of his conduct, and his susceptibility to substantial domination. He felt that ASPD was a likely contributor because of the absence of true remorse, Ben-Sholom’s rationalization for his conduct, and the planning of the “mission.” Also, Ben-Sholom’s conduct at the Teague residence was not consistent with PTSD, but with ASPD. His purpose in committing the crime was to show himself as a good soldier and order taker and to establish a reputation as a good mercenary. Ben-Sholom told Dr. Richmond that other mercenary groups had heard of and contacted Ben-Sholom at times when he got into trouble. In general, and reiterating his 2003 report concerning Dr. Wynbrandt, Dr. Richmond found unreliable a mental health assessment conducted ten or more years after the relevant time period because people change their mental status. He also commented that if the factual foundation for an expert
*1105
opinion were altered, the opinion likewise would be altered. Wit
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