Brown v. Lambert

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAL COBURN BROWN, 

Petitioner-Appellant, No. 04-35998

v.

 D.C. No.

CV-01-00715-JCC

JEFFREY UTTECHT,* Superintendent

of WA State Penitentiary, OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, Chief District Judge, Presiding

Argued and Submitted

January 25, 2008—Pasadena, California

Filed June 27, 2008

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and

Marsha S. Berzon, Circuit Judges.

Opinion by Chief Judge Kozinski;

Dissent by Judge Reinhardt

*Jeffrey Uttecht is substituted for his predecessor, John Lambert, as

Superintendent of WA State Penitentiary, pursuant to Fed. R. App. P.

43(c)(2).

7601

7604 BROWN v. UTTECHT

COUNSEL

Gilbert H. Levy and Suzanne Lee Elliot, Seattle, Washington,

for the petitioner.

BROWN v. UTTECHT 7605

John J. Samson, Assistant Attorney General; Robert M.

McKenna, Attorney General, Olympia, Washington, for the

respondent.

OPINION

KOZINSKI, Chief Judge:

On remand from the Supreme Court, Uttecht v. Brown, 127

S. Ct. 2218 (2007), we consider whether defense counsel’s

performance was deficient.

Facts

After raping and murdering Holly Washa,1 Brown was con-

victed of aggravated first-degree murder in Washington. With

the aid of an investigator, a social worker and a mitigation

specialist, Brown’s three experienced attorneys put on a thor-

ough mitigation case during the penalty phase of Brown’s

trial. They (1) created a 250-page life chronology detailing

Brown’s social and medical history, and presented most of

this information at trial; (2) introduced evidence that Brown

had a mental disorder; (3) called Dr. Maiuro, a clinical psy-

chologist; and (4) called multiple character witnesses, such as

family members. Nonetheless, the jury sentenced Brown to

death.

After exhausting his direct appeals and state collateral

review, Brown petitioned for a writ of habeas corpus in fed-

eral court, raising a number of constitutional claims regarding

his trial and sentencing.2 The district court denied his petition

1

For a more detailed discussion of the facts, see the Washington

Supreme Court’s opinion in Brown’s direct appeal, State v. Brown, 940

P.2d 546, 555-59 (Wash. 1997) (en banc).

2

Because Brown filed his habeas petition after April 23, 1996, we apply

the “substantive review standards of the Antiterrorism and Effective Death

7606 BROWN v. UTTECHT

after holding an evidentiary hearing. Brown appeals on three

issues relating to his death sentence: the facial validity of the

Washington death penalty statute, the exclusion of jurors and

ineffective assistance of counsel. We also expanded the certif-

icate of appealability to include whether the district court

erred in excluding death penalty trial reports.

We upheld Washington’s death penalty statute, Brown v.

Lambert, 451 F.3d 946, 947-48 (9th Cir. 2006), but ruled that

a juror was unconstitutionally excluded, id. at 948-54. The

Supreme Court then reversed us on the juror exclusion issue.

Uttecht, 127 S. Ct. at 2222. We therefore affirm the district

court’s rulings that the Washington death penalty statute is

facially valid, see Brown v. Lambert, 451 F.3d at 947-48, and

that the jury selection for Brown’s trial was constitutional, see

Uttecht, 127 S. Ct. at 2222. We now address Brown’s ineffec-

tive assistance of counsel claim, including the district court’s

exclusion of the death penalty trial reports.

Analysis

1. To establish ineffective assistance of counsel, Brown

must show that defense counsel’s performance was objec-

tively deficient and prejudiced his defense. See Edwards v.

Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc)

(citing Strickland v. Washington, 466 U.S. 668, 687, 694

(1984)). Under AEDPA, Brown must also show that the state

court adjudication was objectively unreasonable. Id. at 1125-

26 (citing 28 U.S.C. § 2254(d)). Brown’s lawyers presented

significant mitigating evidence, unlike other cases where

counsel were deficient for presenting hardly any mitigation

case at all. Cf., e.g., Rompilla v. Beard, 545 U.S. 374, 381-86

(2005); Frierson v. Woodford, 463 F.3d 982, 989-93 (9th Cir.

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)

(‘AEDPA’).” Webster v. Woodford, 369 F.3d 1062, 1066 (9th Cir.), cert.

denied, 543 U.S. 1007 (2004); see also Lindh v. Murphy, 521 U.S. 320,

327 (1997).

BROWN v. UTTECHT 7607

2006). Nevertheless, Brown argues that his representation was

unconstitutionally deficient because his lawyers did not (1)

call a psychiatrist, (2) call Sally Schick, Brown’s former

prison counselor, and (3) cross-examine the prosecution’s

psychiatrist, Dr. Brinkley.

a. Failure to call a psychiatrist

More than nine months before trial, defense counsel

learned that Brown may have had a mental disorder. Acting

on the advice of a neuropsychologist, counsel retained Dr.

Maiuro, a well-respected clinical psychologist who diagnosed

Brown as manic, and as suffering from antisocial personality

disorder and sexual sadism. Counsel designed an extensive

mitigation case based on the theory that Brown’s troubled

home life had led to these mental disorders, and that had

Brown been properly treated upon his release from prison

shortly before the killing, he might not have committed the

crime. At the penalty phase trial, counsel presented witnesses

to testify at length regarding Brown’s upbringing and social

history, and also put on extensive testimony from Dr. Maiuro

concerning Brown’s mental problems. Counsel debated

whether to also retain a psychiatrist, but they ultimately con-

cluded that a psychiatric evaluation wouldn’t provide as much

useful information as a psychological evaluation, including

the administration of formal psychological testing. At trial,

Dr. Maiuro competently testified that Brown suffered from all

three mental disorders and explained why he had diagnosed

them. He further testified that manic disorder was generally

treatable with lithium.

Dr. Maiuro was qualified to diagnose Brown’s mental con-

dition and testify that Brown could have been treated with

lithium. But Dr. Maiuro couldn’t prescribe lithium as he isn’t

a physician. Consequently, just before trial, Dr. Maiuro rec-

ommended that defense counsel consult a psychiatrist, and

specifically recommended Dr. Brinkley. But when defense

counsel approached Dr. Brinkley, they learned that he had

7608 BROWN v. UTTECHT

already agreed to testify for the prosecution. Because it was

so close to trial and defense counsel had previously decided

not to retain a psychiatrist, they didn’t contact any other psy-

chiatrists. At trial, Dr. Brinkley testified that, after his review

of Brown’s medical records, he could see no basis for pre-

scribing lithium, as there was “no clear indication” that

Brown had “a disorder for which lithium was appropriate.”

The prosecution’s closing argument relied on Dr. Brink-

ley’s testimony to argue that Dr. Maiuro was “kind of out on

a limb” in the part of his testimony concerning lithium. The

prosecution did not, however, argue that Dr. Maiuro was

wrong in his diagnosis of manic disorder. It only reminded the

jury that “in Dr. Brinkley’s opinion,” Brown “did not have

any sort of disorder that . . . would suggest that lithium would

be appropriate.” It also emphasized Dr. Maiuro’s testimony

that Brown was a sexual sadist who “took pleasure . . . in

some way [from] sex and violence,” and did not question Dr.

Maiuro’s diagnosis of antisocial personality disorder. Defense

counsel responded that if Brown should not have been on lith-

ium, then the fact that Oregon had him take lithium could

have caused “vast and far reaching complications” affecting

his mental state, thus reducing his culpability. Defense coun-

sel also emphasized Brown’s “sexual sadism” as a mitigating

factor because it arose from his difficult childhood. (Brown

does not argue that his counsel should not have introduced the

sexual sadism evidence.)

[1] Brown argues that counsel were deficient for failing to

call a psychiatrist to rebut Dr. Brinkley’s testimony that lith-

ium wouldn’t have helped Brown. Brown suggests that only

someone who was able to prescribe lithium himself could

have affirmatively rebutted Dr. Brinkley’s testimony that

Brown did not have a condition that was treatable with lith-

ium. But Dr. Maiuro was qualified to testify about lithium,

even though he was not himself licensed to prescribe it, and

everyone agrees that he was widely respected. The additional

weight, if any, of testimony by a psychiatrist was outweighed

BROWN v. UTTECHT 7609

by other considerations that defense counsel took into

account. Retaining a psychiatrist would have required a con-

tinuance. Counsel offered two legitimate reasons for not seek-

ing a continuance: They wanted the jury to deliberate over the

Christmas holiday, when jurors might be more merciful, and

they wanted to give the prosecution less time to prepare its

penalty phase case.

[2] In any event, it’s far from clear that Dr. Brinkley’s testi-

mony was particularly damaging to defense counsel’s mitiga-

tion theory. While Dr. Brinkley cast some doubt on whether

Brown had a mental disorder that was treatable with lithium,

he did not ultimately dispute the larger defense theory—that

Brown developed serious mental problems as a result of his

difficult family history. As defense counsel put it at closing

argument, a pattern of ongoing abuse led to “adult disorders

[that] created major problems” for Brown. Defense counsel’s

theory was supported by an investigation yielding hundreds of

pages of material, and was bolstered at trial through extensive

testimony from Brown’s family members. This foundation

was not seriously undermined by Dr. Brinkley.

[3] Nor, as we have noted, did Dr. Brinkley squarely dis-

pute Dr. Maiuro’s diagnosis of manic disorder, or cast any

doubt on the diagnoses of antisocial personality disorder and

sexual sadism. Defense psychiatric testimony might or might

not have convincingly rebutted Dr. Brinkley’s views on the

usefulness of lithium for Brown’s mental state. But it would

not have greatly changed the mitigation case put before the

jury.

[4] Furthermore, retaining a psychiatrist involved signifi-

cant risk. The trial court had ruled that, after the guilt phase

verdict, defense counsel were required to give the prosecution

all written reports they had concerning Brown’s mental

health. See State v. Pawlyk, 800 P.2d 338, 349-50 (Wash.

1990) (en banc). By retaining a psychiatrist, therefore,

defense counsel would have risked obtaining unfavorable

7610 BROWN v. UTTECHT

written reports (like Dr. Brinkley’s), which they would then

have had to turn over to the prosecution. This was not a trivial

risk, as several of the mental health experts who evaluated

Brown had not diagnosed him with manic disorder—the the-

ory advanced by the defense.

Using the “ ‘fabled twenty-twenty vision of hindsight,’ ”

Edwards, 475 F.3d at 1127 (quoting LaGrand v. Stewart, 133

F.3d 1253, 1271 (9th Cir. 1998)), we now know that Brown’s

habeas counsel eventually found Dr. Scher, a psychiatrist who

could testify that Brown had bipolar disorder and could have

been treated with lithium. But Brown’s trial counsel couldn’t

have known Dr. Scher’s ultimate opinion, as she didn’t reach

her conclusion until almost a decade after the trial.3

[5] Ultimately, it doesn’t matter whether we agree with trial

counsel’s decision not to obtain a psychiatric evaluation after

Dr. Maiuro recommended that they do so. What matters is

that defense counsel used “sound trial strategy,” Edwards,

475 F.3d at 1126 (quoting Strickland, 466 U.S. at 689), in

responding to Dr. Maiuro’s suggestion. Counsel did not

ignore the suggestion; they followed up on it and even con-

tacted Dr. Brinkley, the psychiatrist that Dr. Maiuro recom-

mended as likely to give a favorable evaluation. When Dr.

Brinkley proved unavailable and agreed to be a witness for

3

Even if Dr. Scher had testified, the prosecution would have forced her

to make many damaging concessions during cross-examination. Dr. Scher

admitted that Brown knew right from wrong, and that he was in control

of his behavior. She is not a forensic psychiatrist, and has no expertise in

sexual sadism. In fact, she was aware of no literature supporting her view

that lithium treatment would have made Brown less likely to commit a

sexually violent crime, nor did she know of any tests or studies that she

could have done to reinforce that opinion. Furthermore, the prosecution’s

argument that Dr. Brinkley was best qualified to discuss connections

between lithium and Brown’s crime could have been strengthened had Dr.

Scher testified, because she had consulted with Dr. Brinkley about proper

medications in other circumstances. It’s therefore not clear that Dr.

Scher’s testimony would have helped Brown; in all likelihood, it would

have hurt him.

BROWN v. UTTECHT 7611

the state, the difficulties and risks of obtaining other psychiat-

ric evaluations became even more acute. We can’t say that

trial counsel weighed them in an irrational or unprofessional

manner—or even that they made the wrong choice. The dis-

trict court did not err in finding that petitioner has not shown

ineffective assistance of counsel on this point.

b. Failure to call Sally Schick

Schick is a licensed professional counselor who evaluated

Brown regularly for two years while she was working at an

Oregon prison where Brown had previously been incarcer-

ated. She believed that Brown had a mental disorder, and

requested that Brown be treated with lithium. Although at

least one Oregon prison system psychiatrist disagreed with

Schick’s diagnosis, she found one who prescribed him lithium

for a five-to-six-month-long trial period. Schick only

observed Brown for a month after the trial started, so she

didn’t know whether Brown completed the lithium trial. Dur-

ing the time she watched Brown, she saw at most a “little bit”

of “gradual change” in his behavior. After his release, Brown

chose to stop taking lithium before the amount he was given

on release ran out.

[6] Counsel contacted Schick before trial, and decided not

to call her as a witness. Instead, they introduced Schick’s

notes and Dr. Maiuro discussed them during his testimony.

Counsel were surely not incompetent in making this use of

Schick’s evaluation of Brown, rather than having her take the

stand. Schick was not an M.D. or a Ph.D.; she was not like

Dr. Maiuro—a university professor and a widely-published

author in his field, who was viewed even by Dr. Brinkley as

highly competent. She was merely a licensed professional

counselor, who was not competent even to perform psycho-

logical testing. Indeed, an Oregon psychiatrist had explicitly

disagreed with her recommendation that Brown should take

lithium. Furthermore, had Schick testified, her testimony

would have been challenged on the same basis as Dr. Mai-

7612 BROWN v. UTTECHT

uro’s, as she could not prescribe lithium. Worse yet, Schick

could have been impeached with treatment reports she filled

out after observing the first month of Brown’s trial, in which

she indicated that despite the lithium trial, there had been, at

worst, “no change” in his condition—and only “slight

improvement” at best. Plus, the prosecution could have forced

her to make various damaging concessions, including that she

had done nothing to determine whether Brown was malinger-

ing and that, even if her diagnosis was correct, manic disorder

does not “cause somebody to commit sexually violent

crimes.”

[7] Counsel did not ignore or overlook the possibility of

calling Schick to the stand and made a reasonable judgment

to use her notes instead. We can’t say that this was unconsti-

tutionally deficient representation.

c. Cross-examination of Dr. Brinkley

Brown argues that cross-examining Dr. Brinkley could

have established that he was biased because he didn’t inter-

view Brown before making his diagnosis, and forced Dr.

Brinkley to concede that Dr. Maiuro was competent to render

a psychological diagnosis.

[8] We give “great deference” to “counsel’s decisions at

trial, such as refraining from cross-examining a particular wit-

ness.” See Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000).

Applying that standard, we cannot say that defense counsel’s

decision was objectively unreasonable. Defense counsel were

prepared to cross-examine Dr. Brinkley, but they made the

tactical decision not to. Dr. Brinkley’s conclusions were based

solely on records from the Oregon prison, and defense coun-

sel’s theory was that Oregon officials had not properly treated

Brown’s mental disorder. Counsel therefore reasonably

believed that Dr. Brinkley’s testimony didn’t harm their

defense. By not cross-examining Dr. Brinkley, they avoided

the risk that his testimony would conflict with their own evi-

BROWN v. UTTECHT 7613

dence, which showed that Brown had manic disorder. Dr.

Brinkley testified at the evidentiary hearing that he believed

Brown was not manic but was, instead, a sociopath. The jury

may not have bought defense counsel’s theory, but counsel

certainly weren’t unreasonable for advancing it, or for avoid-

ing any direct contradiction of it by not cross-examining Dr.

Brinkley.

[9] The evidentiary record developed on habeas supports

defense counsel’s determination at trial that a cross-

examination of Dr. Brinkley “might well have backfired.”

Yarborough v. Gentry, 540 U.S. 1, 7 (2003) (per curiam).

Indeed, during oral argument before us, Brown’s habeas

counsel conceded that the cross-examination at Dr. Brinkley’s

deposition (which was taken for the district court’s evidenti-

ary hearing) could have hurt Brown’s mitigation case had it

been conducted at trial. See Oral Argument at 6:13. After all,

the record indicates that the prosecution did not have Dr.

Brinkley interview Brown because defense counsel was chal-

lenging his authority to do so. And, in any event, Dr. Brinkley

testified at the evidentiary hearing that he had no interest in

doing so, because he thought Brown was such a liar that any

interview would be pointless. Dr. Brinkley also testified that

the Oregon prison records were sufficient to diagnose Brown.

Furthermore, at the evidentiary hearing, Dr. Brinkley made

his view clear that, even if Brown were manic, he was not suf-

fering from a manic episode at the time he raped and mur-

dered Washa. Dr. Brinkley also testified that manic episodes

are not associated with the sort of premeditated behavior

Brown displayed. So even if Brown had been manic and on

lithium, the lithium would not, in his view, have prevented the

crime. It was reasonably foreseeable that Dr. Brinkley would

have come up with similarly damaging testimony if cross-

examined at trial. Brown’s counsel therefore weren’t deficient

for failing to cross-examine Dr. Brinkley. Rather, they made

a tactical decision, based on their theory of the case, not to

give Dr. Brinkley an opportunity to undermine that theory.

7614 BROWN v. UTTECHT

[10] 2. The district court didn’t abuse its discretion,

Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.

2004), in excluding the death penalty trial reports, which were

essentially summaries of other Washington death penalty

cases. Prior to the district court’s evidentiary hearing, the par-

ties were required to submit a pre-trial order identifying all

exhibits. Brown didn’t identify the reports in the pre-trial

order, and he didn’t offer them during the evidentiary hearing.

Instead, he presented the reports as attachments to his written

closing statement. The prosecution moved to strike the reports

and, not surprisingly, the district court granted the motion.

[11] Even putting aside a district court’s broad “discretion

to exclude an exhibit not identified in the pretrial order,”

Swinton v. Potomac Corp., 270 F.3d 794, 809 (9th Cir. 2001),

evidence must surely be proffered by the time of the evidenti-

ary hearing, so that the other side can have a fair opportunity

to address or rebut it. The district court certainly did not abuse

its discretion in failing to consider evidence that was so

untimely.

* * *

Brown’s counsel weren’t objectively deficient, as they

made reasonable strategic decisions by not calling a psychia-

trist, not calling Sally Schick and not cross-examining Dr.

Brinkley. The district court therefore correctly rejected

Brown’s ineffective assistance of counsel claim. Nor did the

district court abuse its discretion in excluding the death pen-

alty trial reports.

AFFIRMED.

REINHARDT, Circuit Judge, dissenting:

The majority errs in affirming the death sentence of Cal

Brown. Brown’s attorneys made a highly deficient presenta-

BROWN v. UTTECHT 7615

tion regarding the most important aspect of his mitigation

case—that Brown suffered from a serious mood disorder that

was treatable with lithium. Had they performed at a level con-

sistent with the prevailing professional norms, the jury would

have been aware that with the proper medication, Brown

would have had greater control over his impulses and would

have been less likely to commit the crime. The jurors would

also have learned that with the proper treatment, Brown

would not be a threat in the future. I cannot say with confi-

dence that had the jury possessed this information it would

have voted unanimously to impose the death penalty.

Despite Brown’s counsel’s knowledge that the medical

treatment of their client’s mental disorder would be critical to

their mitigation theory and despite the fact that counsel were

told by their own expert psychologist, Dr. Maiuro, that they

should retain a psychiatrist to testify on that subject, they

failed to do so. Instead, Dr. Maiuro remained their sole expert,

and he was forced to admit on the stand that he was not quali-

fied to prescribe medication and could not testify about

whether Brown’s disorder should be treated with lithium or

whether proper treatment might have prevented the crime.

Additionally, Brown’s attorneys failed to call his counselor

Sally Schick, the only mental health professional who had the

opportunity to observe and treat him for a sustained period of

time, and the one who first recommended that he receive lith-

ium treatment. Finally, Brown’s attorneys failed to cross-

examine Dr. Brinkley, the State’s expert psychiatrist, after his

devastating testimony that Brown did not have any disorder

that could be treated with lithium; by implication, Dr. Brink-

ley suggested that Brown did not have a serious mental disor-

der and that no medical treatment of any kind could have had

a positive effect on his conduct. Moreover, because of coun-

sel’s failure to cross-examine Dr. Brinkley, the jury did not

learn that his testimony was based on his examination of

Brown’s prison records alone. The prosecutor took advantage

of Brown’s counsel’s ineptitude and seriously undermined the

case for mitigation by emphasizing in his closing argument

7616 BROWN v. UTTECHT

the lack of qualifications of Brown’s expert and reminding the

jury that Dr. Brinkley’s testimony had not been challenged.

Brown’s counsel’s deficient performance prejudiced him

because the jury never heard the most convincing argument

for why their client’s life should be spared. Brown’s mitiga-

tion case consisted of two related contentions. The first was

that he had a mental disorder. If defense counsel had put on

a proper case to try to persuade the jury that Brown suffered

from a serious mental illness, at least some of the jurors might

have understood his crimes to be a manifestation of that disor-

der and perceived him to have had less control over his hei-

nous acts than a mentally healthy person.

The second part of the mitigation theory was that Brown’s

disorder could have been effectively managed medically with

lithium. The lithium issue is important because it reinforces

the mental illness argument and because it illustrates the

extent to which Brown’s actions were influenced by that dis-

order. Lithium is a strong medication that is closely linked to

serious mental illness in the popular consciousness. Any dis-

order that required lithium treatment might have been consid-

ered quite severe in the eyes of the jurors. Thus, they could

more readily have understood that the defendant’s conduct

was influenced by a mental disorder that could be treated

medically. If the jurors had heard the testimony of a psychia-

trist like Dr. Scher, who would have said that lithium would

have made Brown less likely to commit the crime, at least

some of them might have attributed less of the blame for the

crime to Brown’s character and more of it to his physiological

condition. Additionally, although the issue of future danger-

ousness was never argued at trial, the jury likely would have

taken into account that if Brown were properly treated, he

would no longer pose as great a threat to society. Counsel’s

deficient performance prejudiced Brown because it rendered

both prongs of the mitigation theory unconvincing. There is

no question that defense counsel failed to prove the second

part of the mitigation case—that Brown’s illness could be

BROWN v. UTTECHT 7617

effectively treated with lithium and that such treatment would

have made Brown less likely to commit crimes. The defense’s

only expert witness admitted that he was unqualified to testify

about lithium. The State emphasized this in cross-examination

and in its closing argument and its expert testified that Brown

did not have a disorder that could be treated with lithium. The

jury had no choice but to conclude that lithium would have

had no effect on Brown, despite counsel’s claim to the con-

trary in his opening statement.

Defense counsel’s deficient performance also undermined

the first claim—that Brown had a serious disorder. Brown’s

lawyers failed to cross-examine Dr. Brinkley and thus

allowed the prosecutor to argue to the jury that the defense

must agree with Dr. Brinkley’s assessment that Brown did not

suffer from any disorder that could be treated with lithium.

Without cross-examination, the jury was not informed of the

fact that Dr. Brinkley had never met with Brown, as is cus-

tomary before diagnosing mental disorders, and that he did

not review all of Brown’s records including those that con-

tained information that he later admitted could have been

important to his diagnosis. All it heard was that Dr. Brinkley

concluded that Brown did not have a mental illness that would

warrant treatment with lithium and that, as the prosecution

argued, the defense did not challenge that conclusion. The

jury was also told by the prosecutor, with considerable effec-

tiveness, that Dr. Maiuro was not qualified to testify regarding

lithium. The jury might well have concluded that if Dr. Mai-

uro was not as qualified as Dr. Brinkley to testify about lith-

ium, he was not as qualified to testify about mental disorders

in general. Given Dr. Brinkley’s unimpeached testimony and

the lengthy and contentious cross-examination of Dr. Maiuro,

the jury likely credited Dr. Brinkley’s testimony over Dr.

Maiuro’s and may have concluded that Brown did not suffer

from a mental disorder at all. In reality, the absence of a

defense psychiatrist and the failure to cross-examine Dr.

Brinkley resulted in the almost total undermining of defen-

dant’s mental illness mitigation argument. Even if the jury

7618 BROWN v. UTTECHT

believed that Brown had psychological problems, they likely

assumed that his disorders could not have been particularly

severe if they did not require any lithium treatment. (No one

suggested that any other form of medical treatment would

have been appropriate.)

There is a reasonable probability that if defense counsel

had presented the testimony of a psychiatrist, as well as that

of Brown’s counselor, and if they had cross-examined Dr.

Brinkley, they would have raised a sufficient question in the

mind of at least one juror as to whether Brown suffered from

a serious mental disorder that could have been controlled with

medical treatment, and that at least one juror would have con-

cluded that the prosecution had not proven beyond a reason-

able doubt that there were no sufficient mitigating

circumstances to warrant the imposition of a life sentence.

Counsel’s failures prejudiced Brown by casting substantial

doubt on the most important aspect of his mitigation case.

Such a deficient and prejudicial performance severely under-

mines one’s confidence in the outcome of the penalty pro-

ceeding. I would reverse Brown’s death sentence so that the

state could re-try the penalty phase or impose a sentence of

life without parole.

I. Failure to Call a Psychiatrist

Brown’s defense counsel knew that the lithium issue would

be an important part of their case, and their expert witness,

Dr. Maiuro, a psychologist, advised them that he was not

qualified to testify about lithium. He recommended that they

retain a psychiatrist who was. Nevertheless, Brown’s lawyers

not only failed to obtain the services of a psychiatrist to testify

as an expert at the penalty phase, they never even consulted

one. This failure was objectively unreasonable under then-

applicable prevailing professional norms.

According to the ABA Guidelines at the time of trial, in

preparation for the penalty phase, counsel should consider,

BROWN v. UTTECHT 7619

“expert witnesses to provide medical, psychological, socio-

logical or other explanations for the offense(s) for which the

client is being sentenced, to give a favorable opinion as to the

client’s capacity for rehabilitation, etc. and/or to rebut expert

testimony presented by the prosecutor.”1 Defense counsel’s

primary mitigation argument at the penalty phase was that

Brown suffered from a mood disorder for which he did not

receive adequate medical treatment—treatment that could

have lessened his symptoms and improved his impulse con-

trol. The testimony of a psychiatrist was necessary to show

that Brown’s disorder could have been effectively managed

medically and to rebut the testimony of Dr. Brinkley that

Brown did not suffer from a mood disorder for which lithium

was appropriate.

Counsel was on notice that a psychiatrist would be needed

to testify about the proper medical treatment of Brown’s dis-

order. Lin Marie Hupp, one of Brown’s attorneys, testified at

the evidentiary hearing that defense counsel understood the

importance of the lithium issues because “[h]aving something

that is physiologically based is sometimes easier for jurors to

understand . . . that you can give somebody a pill for and fix

them is sometimes easier for jurors to understand than just . . .

the person is a bad person.” Hupp’s testimony demonstrates

that the lawyers understood that if they showed that Brown’s

disorder could be medically treated, it would enable the jurors

to comprehend the seriousness of the disorder, understand that

it contributed to his conduct, and thus recognize its mitigating

effect. Additionally, William Schipp, the staff social worker,

explained to Brown’s attorneys the difference between psy-

chologists and psychiatrists, so they understood that Dr. Mai-

uro, a psychologist, would be unable to testify about the

proper medical treatment of Brown’s disorder. Moreover, Dr.

Maiuro personally advised the defense that he was unable to

1

American Bar Association Guidelines for the Appointment and Perfor-

mance of Counsel in Death Penalty Cases, 11.41(C) (1989), http://

www.abanet/org/deathpenalty/resources/docs/1989Guidelines.pdf.

7620 BROWN v. UTTECHT

testify about medical matters, recommended that they consult

a psychiatrist, and gave them referrals. Perhaps the best evi-

dence that defense counsel understood that it was crucial for

them to hire an expert psychiatrist is the fact that they

attempted to do so when, after receiving Dr. Maiuro’s advice,

they contacted Dr. Brinkley and tried to enlist his services.

At the evidentiary hearing, none of the defense attorneys

offered a reason for their failure to seek a psychiatrist either

months before trial or after Dr. Brinkley informed them that

he was unavailable because he was testifying for the State.

Kern Cleven testified that he and his colleagues knew about

Brown’s mood disorder six to eight months before trial and

that “we were aware that we would like to have another kind

of an expert . . . a psychiatrist.” When Cleven was asked why

they did not contact one, he said: “I can’t for the life of me

think of why it was that late in the game and we didn’t have

a psychiatrist on board yet. I wish I could provide you with

a reason why that was, I just can’t.” He also recalled that there

was no impediment to contacting another psychiatrist to tes-

tify once they knew that Dr. Brinkley was unavailable. Terry

Lee Mulligan testified that he did not recall there being “a

specific decision made” or “conversations about” consulting

any other psychiatrists.

Given the overwhelming evidence that defense counsel

knew that it was necessary to consult a psychiatrist and pre-

sent his expert testimony in order to establish that Brown had

a disorder that could and should have been treated with lith-

ium, and given that counsel can offer no reason why they

failed to consult and present the testimony of a psychiatrist,

I would hold that counsel’s failure to retain such an expert

was unreasonable under existing professional norms at the

time and thus amounted to deficient performance under

Strickland v. Washington, 466 U.S. 668 (1984).

The majority suggests strategic justifications for defense

counsel’s decision not to present the testimony of a psychia-

BROWN v. UTTECHT 7621

trist at the penalty phase. Although we are highly deferential

to counsel’s strategic decisions at trial, Strickland, 466 U.S.

at 689, counsel did not advance at the evidentiary hearing any

of the explanations the majority gives for their failures. When

counsel is unable to provide us with strategic reasons for trial

decisions, we are not permitted to engage in “post hoc ratio-

nalization.” Wiggins v. Smith, 539 U.S. 510, 526-27 (2003).

Instead, we must evaluate counsel’s performance by the stan-

dard established in Strickland—“reasonableness under pre-

vailing professional norms.” Strickland, 466 U.S. at 688.

Because there is no reasonable explanation for counsel’s fail-

ure to consult and retain a psychiatrist, the majority’s

attempted rationalizations are unavailing.

The majority claims that defense counsel decided that they

would hire a psychologist instead of a psychiatrist because “a

psychiatric evaluation wouldn’t provide as much useful infor-

mation as a psychological evaluation.” Maj. Op. at 7607. This

is a puzzling conclusion given that defense counsel knew well

in advance of trial that Brown’s medical treatment for his

mental illness would be a critical mitigation issue and a psy-

chologist would not be qualified to testify on that subject.

Moreover, at the habeas corpus evidentiary hearing, Schipp

testified that initially defense counsel decided to pursue a psy-

chological evaluation for the reason cited by the majority.

However, he offered no explanation as to why, after psycho-

logical testing showed that Brown had a mental disorder that

could be treated with lithium, counsel did not consult a psy-

chiatrist. At that point, all of the psychological tests in the

world could not have produced the one “useful” piece of evi-

dence that was necessary—expert testimony that Brown’s dis-

order could and should be treated with lithium. Additionally,

the fact that defense counsel attempted to hire Dr. Brinkley

belies the explanation that they did not believe a psychiatrist

would be useful.

Nor, as the majority suggests, did Brown’s defense counsel

decide not to seek an expert psychiatrist in order to avoid a

7622 BROWN v. UTTECHT

continuance. Maj. Op. at 7609. None of Brown’s lawyers tes-

tified that seeking another psychiatrist would have required a

continuance; indeed the first time this explanation was offered

was in the State’s appellate brief—unsurprisingly with no

citation to the record.2 Moreover, no one suggests any reason

why seeking another psychiatrist would have required a con-

tinuance. Defense counsel sought to obtain Dr. Brinkley’s ser-

vices for the penalty phase on the first day of the guilt phase

proceeding. Either they believed that they could hire Dr.

Brinkley at that time to testify as an expert witness without

creating a need for a continuance, or they believed that the

testimony of an expert psychiatrist was more important than

the timing of the penalty phase. If it was the latter, then failing

to contact another psychiatrist after Dr. Brinkley advised them

of his unavailability was obviously unreasonable. If it was the

former, there is no reason why a different psychiatrist would

have required more time than Dr. Brinkley. In that case, no

continuance would have been necessary at all had they acted

promptly. In any event, the psychiatrist whose services

defense counsel obtained would not have had to testify until

the penalty phase. Counsel could have contacted a different

psychiatrist on the same day that Dr. Brinkley refused and

that psychiatrist would have had just as much time to prepare

his testimony as Dr. Brinkley. Nothing about Dr. Brinkley’s

refusal of the request to serve as a defense witness raised any

question as to the need for a psychiatrist or as to the merits

of the mitigation argument. He simply advised counsel that he

was unavailable because he had been hired by the prosecu-

tion. This should, if anything, have made it even more obvi-

ous that the defense needed a psychiatrist of its own.

Even had defense counsel believed that they would have

been required to seek a continuance, this belief was not sup-

2

Defense counsel considered seeking a continuance for unrelated rea-

sons at one point during the trial, but the decision to obtain Dr. Brinkley’s

services (or those of some other psychiatrist) did not prompt them to con-

sider one.

BROWN v. UTTECHT 7623

ported by any inquiry on their part. According to Schipp,

defense counsel did not request him to contact any other psy-

chiatrists to ask whether they could be ready in time. Mulli-

gan also testified that his records indicated no further attempt

to contact any psychiatrist after he learned that Dr. Brinkley

was unavailable, although Dr. Maiuro testified that he proba-

bly recommended a few psychiatrists to defense counsel. Dr.

Maiuro also stated that the defense did not contact him for

additional referrals. The testimony shows that defense counsel

abandoned their search for a psychiatrist after their first call

to Dr. Brinkley failed, and that they did not inquire into

whether another psychiatrist would be available or whether

there would have been a need for a continuance. “[S]trategic

choices made after less than complete investigation are rea-

sonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Strick-

land, 466 U.S. at 691.

Although the evidence overwhelmingly shows that defense

counsel’s failure to hire a psychiatrist was not due to their

desire to avoid a continuance, even if that had been their

explanation, it would have been unreasonable. The majority

argues that the defense wanted the jury to deliberate over the

Christmas holiday and wanted to give the State less time for

penalty phase preparation. Maj. Op. at 7609. As a preliminary

matter, Cleven’s testimony reveals that these were minor con-

cerns at most. He testified that the Christmas holiday was “a

silly point” and “not a major consideration for us.” He also

admitted that “there was nothing remotely scientific” about

the speculation that the jury might be more merciful over the

Christmas holiday and there were no “focus groups or trial

jurors or anything else” that supported any such thesis. If the

Christmas holiday were a major consideration, which it was

not, the defense’s armchair juror psychology would not be

entitled to deference because it was not the result of proper

investigation. Additionally, Cleven testified that he did not

think that giving the State more time to prepare was “much

of a consideration.”

7624 BROWN v. UTTECHT

The majority also claims that defense counsel did not call

another psychiatrist because they feared that he would render

an unfavorable opinion and did not want to take the risk that

they would be compelled to turn over a damaging report to

the State. Maj. Op. at 7608-09. Not only is that argument

unsupported by the record because no defense attorney testi-

fied that fear of an unfavorable report was the reason for their

decision, but it is also nonsensical given that the lawyers actu-

ally attempted to hire Dr. Brinkley. The majority does not

explain why counsel would try to hire Dr. Brinkley with no

concern that he would render an unfavorable opinion, but,

after he informed them that the State had hired him, would

suddenly develop fears of a damaging diagnosis and elect not

to contact another psychiatrist. Moreover, the record shows

that defense counsel had a policy not to obtain a written report

from their experts precisely in order to avoid such unwanted

discovery and potential impeachment on cross-examination.

That policy is a far more reasonable (and constitutional) way

of handling the risk of potentially unfavorable written opin-

ions from experts than simply avoiding experts altogther.

In short, the decision not to call a psychiatrist was not the

result of reasoned strategic decisions, no matter how many

illogical post-hoc rationalizations the State and the majority

may advance. See Wiggins, 539 U.S. at 526-27 (“The ‘strate-

gic decision’ the state courts and respondents all invoke to

justify counsel’s limited pursuit of mitigating evidence resem-

bles more a post-hoc rationalization of counsel’s conduct than

an accurate description of their deliberations prior to sentenc-

ing.”) Defense counsel’s failure to call an expert in psychiatry

was, as the Supreme Court once put it, “the result of inatten-

tion, not reasoned strategic judgment.” Id. at 534. Conse-

quently, I would hold that Brown’s defense attorneys’

performance was deficient in this respect.

I would also hold that Brown was prejudiced by his coun-

sel’s performance. The lack of expert testimony from a psy-

chiatrist had a devastating impact on Brown’s mitigation

BROWN v. UTTECHT 7625

efforts at the penalty phase. In the defense’s opening state-

ment, Cleven told the jurors that Dr. Maiuro would explain to

them how Brown’s disorder was “not properly diagnosed or

properly treated.” However, after the State’s highly damaging

cross-examination of Dr. Maiuro, and the testimony of Dr.

Brinkley, in which he testified that Brown did not have a

mental disorder that required lithium treatment, and without

an expert psychiatrist of his own, Mulligan had no choice but

to concede in his closing argument that the defense had not

shown that Brown should have been treated with lithium, the

only treatment it had suggested.

Moreover, during his closing argument, the prosecutor was

able to undermine Dr. Maiuro’s testimony by arguing:

Dr. Maiuro really didn’t have enough information to

be able to talk about whether the defendant should or

should not have been on lithium . . . Dr. Maiuro is

not a medical doctor, so he does not prescribe lith-

ium to people. He does not have to make the medical

analysis of whether lithium is appropriate. That’s not

part of his role as a psychologist. So he was kind of

out on a limb in that part of his testimony. And I

think you recognized that once you heard from Dr.

Brinkley.

Dr. Scher’s testimony at the evidentiary hearing in the

habeas proceeding demonstrates how helpful a properly quali-

fied psychiatrist would have been for the defense: such a wit-

ness would have corroborated Dr. Maiuro’s testimony that

Brown suffered from a serious mood disorder and rebutted

Dr. Brinkley’s conclusions regarding lithium. As to the first,

Dr. Scher testified that based on her personal interview of

Brown and review of his records, Brown suffered from bipo-

lar disorder. She also testified that Schick and Dr. Maiuro’s

diagnoses of Brown as manic were consistent with her diag-

nosis. As to the second, Dr. Scher testified that if Brown had

been taking lithium prior to the murder, it “would have con-

7626 BROWN v. UTTECHT

trolled the degree of impulsivity and the amount of stimula-

tion he had.” Dr. Scher testified that it was her opinion that

if Brown had been on lithium and properly treated, he would

have been “less likely” to have committed the murder.

Dr. Scher’s testimony also could have been used to

impeach Dr. Brinkley because she testified that psychiatrists

are supposed to do a personal interview before making a diag-

nosis and noted that Dr. Brinkley had failed to do so. Dr.

Scher also testified that Dr. Brinkley unreasonably dismissed

the fact that prior treatment providers had diagnosed Brown

as manic depressive.3

The majority argues that defense testimony by an expert

psychiatrist would not have significantly changed the mitiga-

tion case because Dr. Brinkley’s testimony did not undermine

the defense’s central theory and did not directly contradict Dr.

Mauiro’s diagnosis. Maj. Op. at 7608. As explained above,

however, this is simply not correct. Dr. Brinkley’s unchal-

lenged testimony cast doubt over the entire mental illness

argument by undermining Dr. Mauiro’s diagnosis and elimi-

nating from consideration the lithium issue, which was the

most tangible way for the jury to understand the magnitude of

Brown’s illness. Dr. Brinkley did not have to contradict Dr.

Mauiro’s diagnosis directly or challenge any of the testimony

about Brown’s family background: the doubts he raised about

Brown’s mental disorder and his undisputed testimony about

lithium were enough to devastate the mitigation theory.

In this case, defense counsel’s failure to call a psychiatrist

left the jury with no opportunity to consider the role that med-

3

We need not belabor the point that the majority raises of whether Dr.

Brinkley was more qualified than Dr. Scher because we have no way of

knowing which psychiatrist defense counsel would have found. Maj. Op.

at 7610. Even if Dr. Brinkley had a longer curriculum vitae than the

defense’s psychiatrist, the fact that the defense expert would have inter-

viewed Brown would have more than made up for whatever credential

deficit there may have been.

BROWN v. UTTECHT 7627

ical treatment with lithium could have played in controlling

Brown’s behavior, nor did the jurors hear any contradiction of

Dr. Brinkley’s devastating testimony that Brown did not have

any disorder that could be treated with lithium. There is a rea-

sonable probability that, had the jury heard the testimony of

a psychiatrist, like Dr. Scher, who would have testified that

Brown did have a mental disorder and that lithium treatment

would have made him less likely to commit the crime with

which he was charged, at least one juror would have con-

cluded that Brown’s treatable disorder was a mitigating cir-

cumstance that warranted a life sentence rather than death

under Washington law.

II. Failure to Call Schick

Schick is an experienced professional counselor who is

licensed to make psychological diagnoses and who observed

and treated Brown at the Oregon state prison for over two

years. Of all the potential witnesses who were available to the

defense at the time of trial, she was the only one who had wit-

nessed the impact of lithium treatment on Brown. Neverthe-

less, none of Brown’s attorneys—only an investigator—

interviewed Schick and Schick was never asked to testify at

the penalty phase.

At the evidentiary hearing, Schick testified that she had ini-

tially diagnosed Brown with bipolar disorder, but upon further

observation revised her diagnosis to unipolar disorder because

Brown did not appear to experience the severe depressive epi-

sodes that are characteristic of bipolar disorder. She requested

a lithium trial to stabilize Brown’s mood disorder and noticed

an improvement in the month that she observed him on the

drug. According to Schick, Brown “was able to focus longer

and less likely to preoccupy himself with some of those gran-

diose thoughts.” In her declaration, Schick stated that she “be-

lieve[s] that this tragedy might have been averted if Brown’s

mental health treatment had been started sooner and his medi-

cation monitored more carefully.”

7628 BROWN v. UTTECHT

The majority claims that counsel made a reasoned decision

not to call Schick because her qualifications were not as

impressive as those of Dr. Maiuro, and because she, like Dr.

Maiuro, could not prescribe lithium. Maj. Op. at 7611-12.

Again, the majority’s rationalizations for defense counsel’s

failings are not supported by the record. In fact, the failure to

call Schick was a result of inattention, not strategy.

Lauren Sonik, a defense investigator, spoke with Schick a

few months before trial began. None of Brown’s attorneys,

however, ever spoke with her. Mulligan did not remember

making a “specific tactical decision not to call Ms. Schick as

a witness at the penalty phase.” Cleven testified that he and

his colleagues never “interviewed her closely as a potential

witness” and could not “recall what considerations there were

in deciding not to call her as a witness.” Hupp remembers

“positive things” about Schick and remembers that she was

exactly the sort of witness with the kind of information the

defense was looking for. Hupp, like the others, did not

remember why they did not call her. Thus, the majority’s

speculative explanation for defense counsel’s failure to call

Schick to testify has no basis in fact and is not supported by

the record or the recollections of the attorneys.

Moreover, the majority’s post-hoc rationalizations are

unreasonable. First, the argument that Dr. Maiuro was better

suited to testify because he has more degrees and professional

accomplishments misses the point. Schick should have been

called also, not because of her long curriculum vitae, but

rather because of her unique experience with Brown. She was

the only counselor who frequently observed and treated

Brown over a period of time, observed his progress on lith-

ium, and the only witness who could have projected the effect

of further treatment. Thus, she was the best person to testify

about Brown’s responsiveness to medical treatment. Despite

the fact that Schick’s notes were read to the jury by Dr. Mai-

uro, the scant observations contained in them were no substi-

BROWN v. UTTECHT 7629

tute for the detailed testimony that Schick could have given

about her personal experience with Brown.

The majority’s second explanation—that Schick was not a

medical doctor and thus not qualified to prescribe lithium—is

also contrary to reason and logic. First, that was clearly not

counsel’s actual reason for not calling Schick, given that it did

not deter them from calling Dr. Maiuro. More important,

however, Schick would not have been called to testify about

whether Brown should have been prescribed lithium. As

explained above, she would have been asked about the change

in Brown’s behavior once he began taking the drug. Her abil-

ity to prescribe medication has nothing to do with her ability

to observe and evaluate a patient who is on medication.

Brown’s counsel’s failure to call Schick was not the result

of a reasoned tactical decision; it was, rather, another failure

properly to prepare the case for trial. Although Schick could

have been a critical witness, no lawyer followed up on the

investigation and interviewed her to determine how valuable

her testimony might be. Thus, it would have been impossible

for counsel to make an informed strategic decision not to call

her. Counsel’s representation fell below professional stan-

dards when they decided not to call Schick to testify at the

penalty phase without interviewing her and without sufficient

information to make an informed decision. Accordingly, I

would hold that this decision also constituted deficient perfor-

mance.

Schick’s testimony would have corroborated Dr. Maiuro’s

testimony and directly rebutted Dr. Brinkley’s claim that there

was nothing in Brown’s record that suggested he suffered

from a mental disorder that could be treated with lithium.

Unlike Dr. Maiuro or Dr. Brinkley, Schick could have pro-

vided first-hand testimony about the effect of lithium on

Brown.

Because she did not testify, the jury heard about Schick

only through the testimony of Dr. Maiuro and Dr. Brinkley.

7630 BROWN v. UTTECHT

Dr. Maiuro testified that, according to the prison records,

Schick concluded that the treatment program resulted in “no

change” in Brown. Dr. Brinkley also testified that Schick

“said in her summary statement of [Brown’s] course of treat-

ment with her that she saw no change.”

The record reveals, however, that had the defense called

her to testify, Schick would have told the jury that Brown

improved on lithium. In her declaration, filed in the habeas

proceeding, Schick stated that she had “noticed a marked

improvement in Brown’s symptoms” once his lithium treat-

ment began in Oregon state prison. She noted that Brown’s

“internal energy was immediately decreased” and that he

“was able to think and plan better.” Schick also declared that,

had she been called to testify, she would have stated that it

was her “firm professional belief that Brown had a major psy-

chiatric disorder that was never effectively treated” and that

“this tragedy might have been averted” if Brown’s medication

had been properly administered and monitored.

At the evidentiary hearing, Schick testified that during the

month Brown was on lithium she observed “a gradual

change” as Brown was “less likely to preoccupy himself with

some of those grandiose thoughts.” She also testified that she

saw some indication of the remission of Brown’s symptoms

after he was placed on the lithium trial. Thus, her testimony

could have impeached Dr. Brinkley’s conclusion that Schick

had observed no change in Brown as a result of his lithium treat-

ment.4 I would hold that, standing alone, counsel’s failure to

4

It appears that the basis for Dr. Maiuro and Dr. Brinkley’s testimony

that Schick did not notice any change in Brown on lithium was a single

checked box on a case summary report dated June, 1993. This was three

years after Schick stopped seeing Brown. According to the defense inves-

tigator’s notes, Schick was leaving the prison at that time but before she

left she had to go through all of her old files and close all of her cases.

This is probably why she completed the report about Brown at such a late

date. Although she did check the box that read “no change,” her notes in

the report indicate that the lithium was working, which is consistent with

Schick’s declaration and testimony at the evidentiary hearing. Schick’s

testimony would have dispelled any doubts that might have been raised by

the hastily checked “no change” box in the report.

BROWN v. UTTECHT 7631

call Schick prejudiced Brown, or, at the very least, that he was

prejudiced when that failure is considered in conjunction with

counsel’s failure to call a psychiatrist as an expert witness.

III. Failure to Cross-Examine Dr. Brinkley

Brown’s defense lawyers elected not to cross-examine Dr.

Brinkley after he testified that Brown did not have a mental

disorder for which lithium could be prescribed. As a result,

the jury never heard that Dr. Brinkley made his evaluation

and rendered his opinion without ever interviewing Brown,

Brown’s family, or any of the doctors and therapists who had

treated him in the past. Moreover, the jury never heard that

Dr. Brinkley’s review of Brown’s records was incomplete and

that he had no knowledge of many aspects of Brown’s back-

ground that are significant to diagnosing mood disorders.

The majority claims that Brown’s attorneys made a tactical

decision not to cross-examine Dr. Brinkley. Maj. Op. at 7612.

That a decision can be labeled “tactical,” however, does not

end the Strickland inquiry. Rather, “a reviewing court must

consider the reasonableness of the investigation said to sup-

port that strategy.” Wiggins, 539 U.S. at 527 (citing Strick-

land, 466 U.S. at 691). Counsel performs inadequately at the

penalty phase when he makes a tactical decision based upon

inadequate investigation. See Wiggins, 539 U.S. at 536. Here,

there is no evidence that the decision not to cross-examine Dr.

Brinkley was based on a reasonable investigation.

Cleven testified that he was prepared for the cross-

examination and thought that it was important for the jury to

hear concessions from Dr. Brinkley about the limited infor-

mation upon which he based his testimony. During a break in

the testimony, however, Mulligan, the lead attorney, ordered

him not to conduct cross-examination. Cleven reported that

Mulligan told him that “he had seen cross-examinations back-

fire” and that the points that Cleven wanted to get out in

cross-examination could be made in the closing argument.

7632 BROWN v. UTTECHT

Mulligan admitted that he played no role in preparing to

cross-examine Dr. Brinkley because the doctor was Cleven’s

witness, nor did he attend the short interview that the other

two defense attorneys conducted with Dr. Brinkley on the

morning of his testimony. Thus, Mulligan did not know in

advance that Dr. Brinkley would testify that Brown did not

have a disorder for which lithium should be prescribed and

that Brown did not benefit from his lithium treatment at the

Oregon state prison. If, like Cleven, Mulligan had played a

role in preparing for cross-examination and if he, like Cleven,

had been present at the interview with Dr. Brinkley, he likely

would have come to the same conclusion as Cleven—that

cross-examining Dr. Brinkley “would not pose any risk to [the

case] at all” and indeed would likely result in answers that

would “seriously call his testimony into question.” Addition-

ally, Mulligan would have known that the points that Cleven

wanted to make on cross-examination, namely that Dr. Brink-

ley made his assessment of Brown without interviewing him

personally and on the basis of an incomplete review of

Brown’s record, could not be made during the closing argu-

ment without first establishing their factual basis by question-

ing Dr. Brinkley. Instead, Mulligan made an uninformed, on-

the-spot decision and forbade Cleven from conducting the

cross-examination that might have helped save Brown’s life.

As Cleven testified at the evidentiary hearing, the decision not

to cross-examine Dr. Brinkley was not an informed one and

it was not based on reasonable consideration of its merits and

possible drawbacks. We need not defer to Mulligan’s hasty

decision because it was made without the benefit of adequate

investigation and thus fell below prevailing professional stan-

dards. I would hold that the decision not to cross-examine Dr.

Brinkley constituted deficient performance.

Dr. Brinkley’s testimony was quite prejudicial to Brown’s

mitigation case. At trial, Dr. Brinkley testified that he did not

see anything in the Oregon state prison records that explained

why lithium was prescribed for Brown and that he “had no

BROWN v. UTTECHT 7633

clear indication from the records [he] reviewed that [Brown]

had a disorder for which lithium was appropriate.”

As a result of defense counsel’s failure to cross-examine

Dr. Brinkley, the prosecutor was able to argue in his closing

argument that:

Apparently, the defense didn’t dispute any of the

findings of Dr. Brinkley. They never asked him

questions. They apparently were satisfied with his

expertise and his findings.

The habeas evidentiary hearing confirms that if Cleven had

cross-examined Dr. Brinkley, the jury would have heard that

Dr. Brinkley never conducted an interview with Brown and

that he did not review all of the records about Brown’s life

history that Dr. Maiuro reviewed. In Dr. Brinkley’s deposi-

tion, taken prior to the evidentiary hearing, Brown’s counsel

asked him about several pieces of information from Brown’s

family history that Dr. Brinkley did not review prior to testi-

fying at trial. Dr. Brinkley acknowledged that some of the

information from Brown’s childhood that he did not review

was “potentially relevant” to the diagnostic question of

whether he suffered from a mood disorder. He stated that had

he been aware that Brown’s mother had a mood disorder, it

would have been relevant to his diagnosis. He admitted that

he did not know that Brown started seeing a psychiatrist at

age seven, and that his evaluation would have been “more

complete” if he had seen the records of the psychiatrist who

treated Brown as a child. He also said he did not know that

Brown had been diagnosed with cyclothymic disorder in 1982

and that it “would have been of interest” to him since cyclo-

thymic disorder may precede bipolar disorder. Moreover, he

testified that the behavioral patterns Schick observed in

Brown at the state prison are “consistent” with a mood disor-

der. This testimony all demonstrates that cross-examination

would have revealed to the jury that Dr. Brinkley’s assess-

7634 BROWN v. UTTECHT

ment was based upon an incomplete review of Brown’s rele-

vant mental health history and family background.

The majority claims that cross-examination of Dr. Brinkley

would have backfired because he testified at the evidentiary

hearing that Brown did not have manic syndrome, but instead

was a sociopath. However, there is no suggestion that defense

counsel intended to ask Dr. Brinkley for his diagnosis of

Brown on cross-examination. Cleven planned to ask Dr.

Brinkley whether he interviewed Brown and whether he

reviewed all of the relevant records. Moreover, Dr. Brinkley’s

testimony on cross-examination would not have damaged

Brown any more than his testimony on direct. On direct, he

explained at length that lithium was used to treat mood disor-

ders including bipolar disorder and manic symptoms. He then

testified that Brown did not suffer from a disorder that could

be treated with lithium. The conclusion that the jury naturally

reached using elementary logic is that Dr. Brinkley believed

that Brown did not have manic syndrome or any other mood

disorder. Dr. Brinkley was an experienced witness. Had he

wanted to say explicitly that Brown did not have any mood

disorder or had he been willing to offer a different diagnosis,

he surely would have done so on direct. There was no need

to wait for cross or redirect.5

The majority also argues that had he been cross-examined,

Dr. Brinkley would have revealed that defense counsel were

challenging his authority to interview Brown. Maj. Op. 7613.

First, this contradicts the majority’s other claim that Dr.

5

The majority also notes that at oral argument, counsel conceded that

had Dr. Brinkley testified as he did in his habeas deposition, it would have

been unhelpful to Brown. Maj. Op. at 7613. However, there is no indica-

tion that defense counsel intended to ask the questions that would have

elicited this unhelpful testimony. Cleven testified that he was prepared to

ask Dr. Brinkley whether he interviewed Brown and whether he reviewed

all of the relevant background materials before reaching his conclusions.

He gave no indication that he would have asked Dr. Brinkley to render a

complete diagnosis.

BROWN v. UTTECHT 7635

Brinkley would have said that he had no interest in interview-

ing Brown because Brown was a liar. Maj. Op. at 7613. The

majority cannot have it both ways. Second, the record does

not indicate that defense counsel refused to permit an inter-

view with Brown. The defense objected to the State’s attempt

to have Dr. Brinkley observe Brown’s demeanor in the court-

room, but it invited the State to make a motion allowing Dr.

Brinkley to interview him. The State failed to do so.

It is more likely that the majority’s other explanation for

Dr. Brinkley’s failure to interview Brown is accurate — that

Dr. Brinkley did not think it was necessary because he

thought that Brown was a liar. Maj. Op. 7613. This is a puz-

zling excuse for Dr. Brinkley to affirm given that he relied

solely on the notes of other professionals who interviewed

Brown. Perhaps he believed them to be better at detecting lies

than he. Regardless, even if Dr. Brinkley denied the value of

a personal interview, it does not mean that the jury’s assess-

ment of his testimony would not have been affected by learn-

ing that he did not interview Brown. Moreover, the

evidentiary hearing revealed that cross-examination would

have enabled the defense to elicit from Dr. Brinkley the con-

cession that he thinks clinical psychologists are “competent to

make psychiatric diagnoses” and that he has worked with Dr.

Maiuro in the past and considers him to be “a competent prac-

titioner.” This concession would have mitigated the damage

done by the State’s cross-examination of Dr. Maiuro in which

the psychologist was forced to admit that he was not qualified

to prescribe lithium and by the State’s closing argument in

which the prosecutor commented that Dr. Maiuro was “out on

a limb.”

There is a reasonable probability that, had the jury heard

that Dr. Brinkley never interviewed Brown, did not review the

same records as did Dr. Maiuro, and believed that Dr. Maiuro

was competent to render an opinion, at least one juror would

have given far greater weight to the opinions of Dr. Maiuro

with respect to the question whether Brown’s mental disorder

7636 BROWN v. UTTECHT

and the lack of lithium should be considered to constitute a

mitigating factor.

IV. Cumulative Error

The three aspects of counsel’s deficient performance,

viewed together, should undermine one’s confidence in the

outcome of the penalty phase. Multiple errors, even if harm-

less individually, may entitle a petitioner to habeas relief if

their cumulative effect prejudiced the defendant. Mak v. Blod-

gett, 970 F.2d 614, 622 (9th Cir. 1992), cert. denied, 507 U.S.

951 (1993); see also United States v. Tucker, 716 F.2d 576,

595 (9th Cir. 1983); Cooper v. Fitzharris, 586 F.2d 1325,

1333 (9th Cir. 1978) (en banc) (holding that “prejudice may

result from the cumulative impact of multiple deficiencies”).

Defense counsel’s errors resulted in the failure adequately

to present Brown’s strongest mitigation argument. The failure

to call a psychiatrist to testify about Brown’s mental disorder

and his need for lithium, the failure to call Schick to testify

about her observations while treating Brown over a period of

time, including her observations about Brown’s responsive-

ness to lithium, and the failure to cross-examine Dr. Brinkley

after his devastating testimony that Brown did not have a dis-

order for which lithium treatment was appropriate, likely led

the jury to believe that Brown’s mental disorder was not seri-

ous and, consequently, did not constitute a mitigating factor

that warranted a life sentence. Had counsel for the defense

performed competently, they could have presented a far

stronger affirmative case for the existence of Brown’s mental

disorder and the effectiveness of lithium treatment, as well as

undermined the State’s expert witness’s contrary opinions.

Properly presented, evidence that Brown suffered from a

mental disorder that contributed to the murder but that could

have been treated with lithium, could have tended to establish

a powerful mitigating factor. Instead, defense counsel failed

to present an adequate case and counsel left themselves vul-

BROWN v. UTTECHT 7637

nerable to the damaging cross-examination of Dr. Maiuro, tes-

timony of Dr. Brinkley, and closing argument by the State.

These are not errors that “had an isolated, trivial effect.”

Strickland, 466 U.S. at 695-96. Had the jury been able to

place Brown’s mental illness on the mitigating side of the

scale, there is a “reasonable probability” that, at least one

juror would have concluded that “the balance of aggravating

and mitigating circumstances did not warrant death.” Id. at

695. As the Supreme Court has held:

[A]lthough we suppose it is possible that a jury

could have heard [ ] all [the mitigation evidence] and

still have decided on the death penalty, that is not the

test. It goes without saying that the undiscovered

mitigating evidence, taken as a whole, might well

have influenced the jury’s appraisal of [the defen-

dant’s] culpability.

Rompilla v. Beard, 545 U.S. 374, 393 (2005) (quoting Wig-

gins, 539 U.S. at 538) (internal quotation marks omitted).

I would hold that defense counsel’s three serious errors—

failure to hire a defense expert psychiatrist, failure to call

Schick to testify, and failure to cross-examine Dr. Brinkley—

prejudiced Brown. He received ineffective assistance of coun-

sel in violation of the Sixth Amendment and, as a result, the

writ of habeas corpus should issue.

V. Conclusion

I respectfully dissent. I would grant the writ of habeas cor-

pus and vacate Brown’s death sentence.