Harris, Roderick

WR-80,923-02

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/1/2015 2:03:46 PM

Accepted 6/1/2015 2:28:04 PM

ABEL ACOSTA

CLERK

No. WR-80,923-02 RECEIVED

COURT OF CRIMINAL APPEALS

6/1/2015

In the Court of Criminal Appeals ABEL ACOSTA, CLERK

of Texas

In re RODERICK HARRIS,

Relator

No. W09-00409-Y(A)

Criminal District Court No.7

of Dallas County, Texas

STATE'S RESPONSE

To Relator Roderick Harris's Motion for Leave to File Application

for Writ of Prohibition, Application for Writ of Prohibition,

and Request for Injunction

Susan Hawk Shelly 0 'Brien Yeatts

Criminal District Attorney Assistant District Attorney

Dallas County, Texas State Bar No. 24033487

133 N. Riverfront Blvd., LB-19

Dallas, TX 75207-4399

(214) 653-3625

(214) 653-3643 fax

syeatts@dallascounty .org

REAL PARTY IN INTEREST

IDENTITY OF PARTIES AND COUNSEL

1. Relator is Roderick Harris, who is represented by the Office of Capital

Writs. Counsel of record is Brad Levenson, Robert Romig, and Jeremy

Schepers.

2. Respondent is the Honorable Elizabeth Frizell, Presiding Judge of the

Criminal District Court No.7 of Dallas County, Texas.

3. The Real Party in Interest is Susan Hawk, Criminal District Attorney of

Dallas County, Texas. Counsel of record is Shelly O'Brien Yeatts.

ii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF AUTHORITIES ............................................................................... ;.... iv

STATE'S RESPONSE ............................................................................................... 1

ISSUE PRESENTED ................................................................................................. 1

STATEMENT OF THE CASE AND STATEMENT OF FACTS ........................... 1

ARGUMENT ............................................................................................................. 4

PRAYER .................................................................................................................. 11

VERIFICATION ...................................................................................................... 11

CERTIFICATE OF SERVICE ................................................................................ 12

EXHIBITS .................................................................................................................. .

Exhibit A: Initial Application for Writ of Habeas Corpus (without exhibits)

Exhibit B: Order Designating Issues for an 11.071 Hearing

Exhibit C: Trial Court's Amended Order on State's Motion for Disclosure

of Roderick Harris's Trial Files, issued April 24, 2015

111

TABLE OF AUTHORITIES

Cases·

Burnett v. State,

642 S.W.2d 765 (Tex. Cr~m. App. 1982) ........................................................................ 9

Cameron v. State,

241 S.W.3d 15 (Tex. Crim. App. 2007) .......................................................................... 6

Carmona v. State,

941 S.W.2d 949 (Tex. Crim. App. 1997)........................................................................ 6

Harris v. State, No. AP-76,810, 2014 Tex. Crim. App. Unpub. LEXIS 517

(Tex. Crim. App. May 21, 2014) (not designated for pUblication) ................................. 1

In re McCann, .

422 S.W.3d 701 (Tex. Crim. App. 2013) ............................................................... passim

Pope v. State,

207 S.W.3d 352 (Tex. Crim. App. 2006) ........................................................................ 6

Simon V. Levario,

306 S.W.3d 318 (Tex. Crim. App. 2009) ........................................................................ 5

State ex rei. Lykos v. Fine,

330 S.W.3d 904 (Tex. Crim. App. 2011) ........................................................................ 4

State ex rei. Wade V. Mays,

689 S. W.2d 893 (Tex. Crim. App. 1985) ........................................................................ 5

State V. Thomas,

428 S.W.3d 99 (Tex. Crim. App. 2014) .......................................................................... 7

Strickland V. Washington,

466 U.S. 668 (1984) ......................................................................................................... 3

Woodruff V. State,

330 S.W.3d 709 (Tex. App.-Texarkana 2010, pet. rerd) ............................................. 7

IV

Statutes

Tex. Code Crim. Proc. Ann. art. 11.071, §§ 8(a), 9(a) (West Supp. 2014) ..................... 7, 8

Rules

Tex. R. Evid. 104(a)............................................................................................................. 6

Tex. R. Evid. 503(a), (b) ...................................................................................................... 6

Tex. R. Evid. 503(b)(2) ......................................................................................................... 6

Tex. R. Evid. 503(c) ............................................................................................................. 9

Tex. R. Evid. 503(d)(3) ........................................................................................................ 7

v

STATE'S RESPONSE

The Real Party in Interest, Susan Hawk, the Criminal District Attorney of

Dallas County, Texas, hereinafter referred to as "the State," submits this response

to Relator Roderick Harris's Motion for Leave to File Application for Writ of

Prohibition, Application for Writ of Prohibition, and Request for Injunction.

ISSUE PRESENTED

Whether the trial court, pursuant to its authority to direct the gathering of

evidence for the resolution of habeas claims under Article 11.071 of the Code of

Criminal Procedure, may exercise discretion to order Relator Roderick Harris to

produce to the State the portions of his trial files relevant to his habeas claims of

ineffective assistance of prior counsel.

STATEMENT OF THE CASE AND STATEMENT OF FACTS

Relator Roderick Harris was convicted and sentenced to death in May 2012

for the capital murder of Alfredo Gallardo in the course of a ro~bery. This Court

affirmed his conviction and sentence on direct appeal. Harris v. State, No. AP-

76,810, 2014 Tex. Crim. App. Unpub. LEXIS 517 (Tex. Crim. App. May 21,

2014) (not designated for pUblication). Attorneys-Brad Lollar, Doug Parks, Mike

Howard, and Calvin 10hnson represented Harris at trial. After trial, the court

.appointed the Office of Capital Writs (OCW) to represent Harris in his Article

1

11.071 application for writ of haheas corpus. With Harris's authorization, trial

counsel t~ndered Harris's original trial files to DCW. See generally In re McCann,

422 S.W.3d 701, 704-705 (Tex. Crim. App. 2013) (explaining that the contents of

the trial file belongs to the defendant).

Following an investigation, OCW filed a post-conviction application for writ

of habeas corpus on Harris's behalf, challenging his conviction and death sentence.

(Exhibit A). The application is pending in the trial court. Five out of six of

Harris's claims for relief in the application (not counting subparts) allege

ineffective assistance of counsel. These claims encompass counsel's performance

during the pre-trial investigation, the guilt-innocence phase, and the punishment

phase and include allegations that trial counsel was ineffective for:

• failing to sufficiently investigate and present punishment phase

evidence that Harris suffers from fetal alcohol spectrum disorder

and was exposed to toxic levels of lead as a child (Application at

16-41);

• failing to present sufficient expert testimony in the punishment

phase to explain the mitigating impact of Harris's life history

(Application at 41-70);

• failing to offer punishment phase evidence in the form of Harris's

own gang expert testimony to rebut the State's evidence of his

involvement in a West Da~las street gang (Application at 70-75);

• failing to object to evidence in the punishment phase that Harris

wore a restraint device while being transported in a courthouse

elevator during jury selection (Application at 75-83);

2

• failing to object during the guilt-innocence phase to the

admission of autopsy photos of the second decedent at the scene,

Carlos Gallardo, and to the medical examiner's corresponding

testimony (Application at 84-95);

• failing to raise guilt-innocence phase objections to the admission

of (a) crime scene photographs and police officer testimony

regarding attempts to save the complainant's life at the scene, (b)

references in police officers' testimony that Harris shot at the

officers when he exited the Gallardo family's trailer, (c) evidence

regarding a gun, ammunition, and gloves seized from Harris's

vehicle, which authorities found parked in the driveway next door,

and (d) a jail book-in sheet which identified Harris's vehicle

(Application at 96-104).

(Exhibit A). Harris's across-the-board challenges to trial counsel's investigation,

treatment of certain guilt-innocence evidence, and failure to present sufficient or

particular mitigation evidence in this case place trial counsel's entire performance

at issue. In light of these claims, the trial court must make findings of fact and

conclusions of law regarding whether Harris's attorneys performed deficiently and,

if so, whether that performance prejudiced his defense. See Strickland v.

Washington, 466 U.S. 668, 687 (1984).

The trial court's "Order Designating Issues" in the habeas proceeding

designated all of Harris's ineffective assist~ce claims for further fact gathering

and scheduled an evidentiary hearing. (Exhibit B). On the State's motion and in

preparation for the evidentiary hearing, the trial court ordered OCW to provide the

State with access to the portions of Harris's trial files relevant to his claims of

ineffective assistance. (Exhibit C).

3

OCW filed an application for writ of prohibition and request for injunction

with this Court, seeking extraordinary relief from th~ trial court's order. I Before

making a decision on Harris's motion for leave to file, this Court has provided the

State and the trial court an opportunity to respond.

ARGUMENT

Harris fails to demonstrate he is entitled to the extraordinary relief he

requests, namely, to be free from the trial court's order to provide the State with

access to the portions of his trial fi~es relevant to his ineffective assistance of

counsel claims.

Relief on a petition for writ of prohibition is available only if a relator shows

that he has (1) a clear and indisputable right to the relief sought and (2) no other

adequate legal remedy available. McCann, 422 S.W.3d at 704; State ex reI. Lykos

v. Fine, 330 S.W.3d 904, 907 (Tex. Crim. App. 2011). The State agrees that Harris

has no other vehicle for obtaining relief from the trial court's order to provide the

State access to his trial files; however, he cannot" show a clear right to relief.

I In other Dallas eounty death penalty Writs in which oew has been appointed to represent an

applicant, oew has acknowledged the waiver of privileges in relation to ineffective assistance

of counsel claims and agreed to release the files. In Ex parte Medina, No. W07-32923-S(A),

oew turned over all the trial files. In Ex parte Garry Green, No. W09-59380-S(A), oew

turned over portions of the files and provided a privilege log of excepted items. In Ex parte Juan

Lizcano, No. W05-59563-S(A), oew agreed to release the files but the trial court substituted

other counsel before the release actually occurred. Despite -its position on release of trial files in

the past, oew has in this instance declined to release the trial files.

4

To demonstrate a clear right to relief, Harris must show the act he seeks to

prohibit is ministerial and does not involve a discretionary or judicial decision. An

applicant satisfies this requirement if the facts and circumstances dictate but one

rational decision under unequivocal, well-settled, and clearly controlling legal

principles. See Simon v. Levario, 306 S. W.3d 318, 320 (Tex. Crim. App. 2009)

(citing State ex reI. Young v. Sixth Judicial District Court of Appeals, 236 S. W.3 d

207, 210 (Tex. Crim. App. 2007»; State ex rei. Wade v. Mays, 689 S.W.2d 893,

897 (Tex. Crim. App. 1985). The relator on a writ of prohibition "must make a

clear showing that under certain facts, the law is subject to but one interpretation;

he then must show that undisputed facts exist which entitle him unequivocally to a

right flowing from that single interpretation." Wade, 689 S.W.2d. at 898 n.ll.

Even if the issue is one of first impression, a relator may establish a clear right to

relief where well-settled law governs the issue. McCann, 422 S.W.3d at 704.

Evidence which may later reflect and be relevant to a defense team's

effective or ineffective representation of a client takes many forms, including

communications between the attorneys and the client, communications among the

attorneys and their experts or consultants, materials generated and collected by the

attorneys and their agents, evaluations performed at the attorneys' request, the

attorneys' mental impressions and analysis, and the tangible records and files

maintained by the attorneys. Harris's assertions of post-conviction ineffective

5

assistance of counsel claims constitute a waiver of the attendant attorney-client and

work-product privileges and allow the State access to communications and

materials which would usually be protected from disclosure, including the contents

of his trial files.

The attorney-client privilege is an evidentiary privilege which protects

against the compelled disclosure of confidential communications. Pope v. State,

207 S.W.3d 352, 357 (Tex. Crim. App. 2006); see Tex. R. Evid. 503(a), (b). The

attorney-client privilege belongs to and protects the client. Pope, 207 S. W.3d at

357; Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App. 1997). Preliminary

questions concerning the existence of a privilege shall be determined by the trial

court. Tex. R. Evid. 104(a). In determining whether the attorney-client privilege

has been waived, a court examines the totality of the circumstances and reasonable

inferences therefrom. Carmona, 941 S.W.2d 954.

The attorney work-product doctrine or privilege functions as a qualified

privilege to prevent an attorney from being compelled to disclose his work product

to an adversary. Pope, 207 S.W.3d at 357-358. The purpose of the doctrine is to

stimulate the production of information for trials. Id. Although not expressly

provided for, the attorney work-product privilege falls within Texas Rule of

Evidence 503(b)(2). Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App.

2007); see Tex. R. Evid. 503(b)(2) (ind:icat~ng that a criminal client has a privilege

6

to prevent his attorney or the attorney's representative from disclosing facts which

developed as a result of the attorney-client relationship).

Harris's assertions of post-conviction ineffective assistance of counsel

claims have resulted in a waiver of the attorney-client and work-product privileges.

See State v. Thomas, 428 S.W.3d 99, 106 (Tex. Crim. App. 2014) ("When counsel

faces an ineffective-assistance claim, the attorney-client privilege is waived, and

trial counsel has the opportunity to explain his actions"); Tex. R. Evid. 503{d){3)

(establishing that the attorney-client privilege does not extend to communications

"relevant to an issue of breach of duty by the lawyer to the client or by the client to

the lawyer"); Woodruff v. State, 330 S.W.3d 709, 728 (Tex. App.-Texarkana

2010, pet. ref d) (holding that the exceptions of Texas Rule of Evidence 503{d)

also apply to the work-product privilege in the proper circumstances).

The parties agree that Harris's assertions of ineffective assistance of counsel

constitute a waiver of his attorney-client privileges. The parties disagree whether

the trial court may, based on Harris's waiver, order his habeas counsel to disclose

to the State the contents of the trial files relevant to his claims.

Article 11.071 of the Code of Criminal Procedure, which governs habeas

proceedings in death penalty cases, requires the trial court to determine what, if

any, fact issues require resolution and the manner in which those issues should be

resolved. See Tex. Code Crim. Proc. Ann. art. 11.071, §§ 8{a), 9{a) {West Supp.

7

2014). The statute gives the trial court discretion to use various avenues for

resolving issues, including requiring affidavits, depositions, interrogatories, and

evidentiary hearings and using personal recollection. Id. § 9(a). Through these

avenues, including an evidentiary hearing, the trial court receives evidence relevant

to the contested fact issues. In conjunction with its authority to hold an evidentiary

hearing in this habeas proceeding and receive evidence, the trial court ordered

DeW to provide the State access to the' portions of Harris's trial files that are

relevant to his ineffective assistance of trial counsel claims prior to the hearing.

Nothing in Article 11.071 prohibits a trial judge from ordering. such discovery

during the evidence gathering process.

Moreover, there is no other legal bar to ordering this discovery. Harris does

not claim the files are not discoverable. Indeed, he concedes that his ineffective

assistance of counsel complaints act as a waiver of his privilege. He argues,

however, that the court must order his trial lawyers-not his writ lawyers-to tum

the files over. Harris does not explain why the court must go elsewhere for the

files, and no legal reason is otherwise apparent. The trial files belong to Harris.

See McCann, 422 S.W.3d at 704-705 (reaffirming that a client owns the contents

of his or her file). And his current counsel has possession of originals and/or

copIes.

8

Harris seeks to place the burden on the individual trial attorneys to

determine the application and scope of Harris's attorney-client waiver, i.e. to

identify which documents in the files are relevant to his ineffective assistance of

counsel claims. However, the right to claim or waive the attorney-client privilege

belongs to Harris, not his trial attorneys. See Burnett v. State, 642 S.W.2d 765,

770 (Tex. Crim. App. 1982) ("The law is 'perfectly plain that the waiver [of the

client-attorney privilege], like the privilege, belongs solely to the client, and not to

the attorney. "'); Tex. R. Evid. 503(c) (indicating that the lawyer may claim the

privilege "only on behalf of the client").

The State agrees with OCW that it does not "represent" trial counsel for

purposes of this writ proceeding; however, the State is in the position of defending

against Harris's habeas claims, which he has elected to formulate and file. Harris

contends that "[hlow trial counsel chooses to defend themselves from these claims,

and to what extent the limited waiver of privileged information will be effectuated,

is a decision for trial counsel, not the State to make." (Application at 8). This

inference that trial counsel is responsible for release of documents from the files

ignores this Court's holdings that a criminal defendant's file is the defendant's

property. See McCann, 422 S.W.3d at 704-705; Burnett, 642 S.W.2d at 769

(holding a tape recording of the defendant's pre-hypnotic interview was the

defendant's property and subject to the attorney-client privilege). Moreover, that

9

the trial files might be available through an alternative source does not mean the

trial court did not have discretion to order Harris to release them.

The trial court determines the extent of the waiver of privileged information

based on the relevancy of the information to the asserted claims. These

determinatioI)s properly lie solely within the trial court's discretion. Contrary to

Harris's contentions, the State is not seeking to determine the extent of the waiver.

Furthermore, Harris acknowledges that documents from his trial files relevant to

his ineffective assistance of counsel claims may be disclosed and admitted into

evidence at a hearing. Nothing deprives the trial court of the discretion to regulate

the timing of the disclosure of the files and to order it to occur earlier.

By accusing his counsel of ineffectiveness, Harris has waived any privileges

attendant to his trial files, which in effect record much of the repr~sentation. The

trial court's order for Harris to produce the files to the State prior to an evidentiary

hearing was discretionary; Harris presents this Court with no authority that

deprives the trial court of its discretion to order production of the files. The trial

court here exercised a manifestly judicial-not a ministerial-function.

Accordingly, this Court should deny Harris's request for the extraordinary remedy

of prohibition.

10

PRAYER

The State prays that this Court deny Harris's motion for leave to file his

application for a writ of prohibition and the application itself. Moreover, the State

asks this Court to lift its order staying the discovery order and any hearings on the

habeas application.

Susan Hawk Shelly Brien Y tts

Criminal District Attorney Assistant District Attorney

Dallas County, Texas State Bar No. 24033487

133 N. Riverfront Blvd., LB-19

Dallas, TX 75207-4399

(214) 653-3625

(214) 653-3643 fax

syeatts@dallascounty.org

VERIFICATION

STATE OF TEXAS §

§

COUNTY OF DALLAS §

I, Shelly O'Brien Yea~s, attest and affirm that I have reviewed the response,

that I have personal knowledge of the factual statements it contains, and that those

factual statements are true and correct and supported by competent evidence

included in the appendix or record.~

~Brien Y. atts

11

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing response has been served on the

following on June 1,2015:

Hon. Elizabeth Frizell

Criminal District Court No.7

133 N. Riverfront Blvd.

Dallas, Texas 75207

Brad D. Levenson

Robert Romig

Office of Capital Writs

1700 N. Congress Ave., Suite 460

Austin, Texas 78711

Brad.Levenson@owc.texas.gov

Robert.Romig@ocw.texas.gov

ATTORNEYS FOR RELATOR ~~

Shelly 0 rien Yes

12

EXHIBIT A

Roderick Harris's Initial Application for Writ of

Habeas Corpus (without exhibits)

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I

FO \/J IOq- (J)-/CY1-Y (fl)

IN CRIMINAL DISTRICT COURT NO.7

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2014 JUN 11 PM 3: 21 DALLAS COUNTY, TEXAS

G;,io 0 0 ,:-HYHiS

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) Trial Cause No.

EX PARTE ) F09-00409

RODERICK HARRIS, )

APPLICANT )

)

)

INITIAL APPLICATION FOR WRIT OF HABEAS CORPUS (FILED

PURSUANT TO TEX. CODE CRIM. PROC. ART. 11.071)

BRAD D. LEVENSON (No. 24073411)

Director, Office of Capital Writs

(E-mail: Brad.Levenson@ocw.texas.gov)

ROBERT ROMIG (No. 24060517)

(E-mail: Robert.Romig@ocw.texas.gov)

SAM FARINA-HENRY (No. 24082979)

(E-mail: Sam.Farina-Henry@ocw.texas.gov)

RYAN CARLYLE KENT (No. 24090205)

(E-mail: Ryan.Kent@ocw.texas.gov)

Post-Conviction Attorneys

Office of Capital Writs

1700 North Congress Avenue, Suite 460

Austin, Texas 78711

(512) 463-8600

(512) 463-8590 (fax)

Attorneys for Applicant

TABLE OF CONTENTS

APPLICATION FOR A WRIT OF HABEAS CORPUS ......................................... 1

PROCEDURAL HISTORy ...................................................................................... 4

A. Trial Court Proceedings .................................................................................. 4

B. State Appellate Proceedings ........................................................................... 6

C. State Habeas Proceedings ............................................................................... 6

STATEMENT OF FACTS ....................................................................................... 6

A. Guilt/Innocence Phase Presentation ............................................................... 6

B. Punishment Phase Presentation ...................................................................... 7

STANDARD OF CARE ........................................................................................... 9

A. Ineffective Assistance of Trial CounseL ........................................................ 9

B. Ineffective Assistance of Appellate CounseL .............................................. 13

C. Scope of the Waiver of Attorney-Client Privilege ....................................... 13

ARGUMENT .......................................................................................................... 16

CLAIM ONE: TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE

BY FAILING TO SUFFICIENTLY INVESTIGATE AND PRESENT CERTAIN

MITIGATING EVIDENCE DURING HARRIS'S TRIAL ................................... 16

A. Trial Counsel Was Ineffective for Failing to Investigate and Present

Available Evidence that Harris Suffers from Fetal Alcohol Spectrum

Disorder ......................................................................................................... 20

B. Trial Counsel Failed to Uncover and Present Information That Harris Was

Exposed to Toxic Levels of Lead as a Child ................................................ 34

C. Trial Counsel Failed to Retain and Present Testimony from Expert

Witnesses to Explain the Mitigating Impact of Harris's Life History ......... 41

D. Trial Counsel's Failure to Present This Mitigating Information Was

Deficient and Prejudiced Harris's Trial.. ...................................................... 69

..

11

CLAIM TWO: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO

PRESENT A GANG EXPERT TO OFFER AN EXPERT OPINION TO REBUT

THE PROSECUTION'S EVIDENCE OF HARRIS'S GANG INVOLVEMENT 70

A. Relevant Facts ............................................................................................... 70

B. Trial Counsel Was Ineffective for Failing to Rebut the Prosecution's

Evidence of Harris's Gang Affiliation by Presenting Testimony from a Gang

Expert ............................................................................................................ 72

C. Harris was Prejudiced by Trial Counsel's Failure to Present Testimony from

a Gang Expert ............................................................................................... 75

CLAIM THREE: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO

OBJECT TO INHERENTLY PREJUDICIAL TESTIMONY INFORMING THE

JURY THAT HARRIS WAS RESTRAINED ....................................................... 75

A. Restraint Evidence Presented to Jury at Harris's TriaL ............................... 76

B. Restraint Evidence Was Objectionable ........................................................ 78

C. Trial Counsel Was Ineffective for Failing to Object to Restraint Evidence 80

D. Harris Was Prejudiced by Trial Counsel's Failure to Object. ...................... 82

CLAIM FOUR: HARRIS WAS DENIED DUE PROCESS BY TRIAL

COUNSEL'S FAILURE TO OBJECT OT THE ADMISSION OF FORENSIC

EVIDENCE CONCERNING CARLOS GALLARDO ......................................... 84

A. Relevant Facts ............................................................................................... 84

B. Legal Standards ............................................................................................. 86

C. Trial Counsel Performed Ineffectively by Failing to Object to Testimony and

Exhibits Concerning the Death of Carlos Gallardo ...................................... 89

D. Conclusion .................................................................................................... 95

CLAIM FIVE: HARRIS WAS DENIED DUE PROCESS BY TRIAL

COUNSEL'S FAILURES TO OBJECT TO PREJUDICIAL, CUMULATIVE,

AND INADMISSIBLE EVIDENCE ...................................................................... 95

A. Relevant Facts ............................................................................................... 96

III

B. Legal Standards ............................................................................................. 96

C. Trial Counsel Performed Ineffectively by Failing to Object to Prejudicial

and Cumulative Testimony Concerning the Crime Scene and Harris's

Shooting at Police Officers, as well as to Prejudicial and Inadmissible

Evidence Seized from the Ford Crown Victoria .......................................... 97

D. Conclusion .................................................................................................. 103

CLAIM SIX: HARRIS'S CONSTITUTIONAL RIGHTS WERE VIOLATED

WHEN THE TRIAL COURT REFUSED TO INSTRUCT THE JURY THAT A

VOTE BY ONE JUROR WOULD RESULT IN A LIFE SENTENCE .............. 104

A. As Applied to Harris's Jury, the "10-12 Rule" Unconstitutionally Impaired a

Juror's Ability to Answer Special Issue Three ........................................... 106

B. The Supreme Court Has Invalidated Jury Instructions That Place an Added

Burden on the Sentencer Before Finding Mitigating Circumstances ......... 109

C. Conclusion .................................................................................................. 111

PRAYER FOR RELIEF ........................................................................................ 112

IV

TABLE OF AUTHORITIES

Cases

Allen v. United States, 164 U.S. 492 (1896) ......................................................... 108

Arizona v. Washington, 434 U.S. 497 (1978) ....................................................... 108

Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) ............................................... 14

Bobby v. Van Hook, 558 U.S. 4 (2009) ................................................................... 10

Cullen v. Pinholster,_U.S._, 131 S. Ct. 1388 (2011) ....................................... 10

Downum v. United States, 372 U.S. 734 (1963) ................................................... 108

Evitts v. Lucey, 469 U.S. 387 (1985) ...................................................................... 13

Harrington v. Richter, _ U.S. _, 131 S. Ct. 770 (2011) ................................ 10, 12

In re Nat 'I Mortg. Equity Corp. Mortg. Pool Certificates Sec. Litig., 120 F.R.D.

687 (C.D. Cal. 1988) ........................................................................................... 15

Johnson v. Alabama, 256 F .3d 1156 (1Ith Cir. 2001) ............................................ 15

Laughner v. United States, 373 F.2d 326 (5th Cir. 1967) ....................................... 14

Levin v. Ripple Twist Mills, Inc., 416 F. Supp. 876 (B.D. Pa. 1976) ...................... 15

McKoy v. North Carolina, 494 U.S. 433 (1990) ................................................... 111

Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) ....................................................... 11

Mills v. Maryland, 486 U.S. 367 (1988) ............................................... 109, 110, 111

Padilla v. Kentucky, 559 U.S. 356 (2010) .............................................................. 10

Porter v. McCollum, 558 U.S. 30 (2009) ...................................................... 9, 12, 93

Ries v. Quarterman, 522 F.3d 517 (5th Cir. 2008) ................................................. 13

Rompilla v. Beard, 545 U.S. 374 (2005) ....................................................... 9, 10, 11

Smith v. Robbins, 528 U.S. 259 (2000) ............................................................ passim

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

United States v. Basham, Cr. No. 4:02-992-JFA, 2012 WL 1130657 (D.S.C. Apr.

4,2012) ................................................................................................................ 15

United States v. Pinson, 584 F.3d 972 (10th Cir. 2009) ......................................... 14

Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006) ......................................................... 9

Wiggins v. Smith, 539 U.S. 510 (2003) ............................................................ passim

Williams v. Taylor, 529 U.S. 362 (2000) ................................................................ 12

Woodson v. North Carolina, 428 U.S. 280 (1976) ................................................... 1

Statutes

Alabama v. Lewis, 36 So. 3d 72 (Ala. Crim. App. 2008) ....................................... 15

Beall v. Ditmore, 867 S.W.2d 791 (Tex. App.-EI Paso 1993) ............................. 80

Boone v. State, 230 S.W.3d 907 (Tex. App.-Houston 2007) ............................... 79

Cedillos v. State, 250 S.W.3d 145 (Tex. App.-Eastland 2008) ............................ 79

Draughon v. State, 831 S. W.2d 331 (Tex. Crim. App. 1992) ...................... 106, 111

Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005) ................................ 70

v

Ex parte Ellis, 233 S.W.3d 324 (Tex. Crim. App. 2007) ........................................ 70

Ex parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012) ....................................... 9

Ex parte Gonzales, 204 S.W.3d 391 (Tex. Crim. App. 2006) .............. 11, 12, 13,41

Ex parte Jimenez, 364 S.W.3d 866 (Tex. Crim. App. 2012) .................................... 9

Ex parte Martinez, 195 S.W.3d 713 (Tex. Crim. App. 2006) ................................. 12

Ex parte Santana, 227 S.W.3d 700 (Tex. Crim. App. 2007) ............................ 13, 88

Frazierv. State, 600 S.W.2d271 (Tex. Crim. App.1979) ................................... 102

In re Dean, 711 A.2d 257 (N.H. 1998) ................................................................... 15

Joseph v. State, 3 S.W.3d 627 (Tex. App.-Houston [14th Dist.] 1999) ............... 14

Long v. State, 590 S.W.2d 138 (Tex. Crim. App. 1979) ....................................... 102

Maryland Am. Gen. Ins. v. Blackmon, 639 S.W.2d 455 (Tex. 1982) ..................... 14

Meza v .State, 206 S.W.3d 684 (Tex. Crim. App. 2006) ........................................ 13

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ................ 87,97,99

Moreno v. State, 22 S.W.3d 482 (Tex. Crim. App. 1999) .......................... 87, 88, 97

Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996) ...................................... 92

Robertson v. State, 777 S.W.2d 427 (Tex. Crim. App. 1989) ................................ 91

Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993) .................................. 86, 87

Saldana v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) ...................................... 80

Shuffieldv. State, 189 S.W.3d 782 (Tex. Crim. App. 2005) ....................... 87, 94,97

State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005) .................................... 88

Stone v. State, 17 S.W.3d 348 (Tex. Crim. App. 2000) .......................................... 91

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ...................................... 9

Waldrip v. Head, 532 S.E.2d 380 (Ga. 2000) ......................................................... 15

West v. Solita, 563 S.W.2d 240 (Tex. 1978) ........................................................... 14

Wiseman v. State, 223 S.W.3d 45 (Tex. App.-Houston [1st Dist.] 2006) ............ 79

Wood v. State, No. 09-10-00195-CR, 2012 WL 1448333 (Tex. App.-Beaumont

Apr. 25, 2012) .................................................................................................... 103

Other Authorities

TEX. CODE CRIM. PROC. art. 37.071 .............................................................. 104, 105

TEX. R. EVID. 101 .................................................................................................... 86

TEX. R. EVID. 402 .................................................................................................... 91

TEX. R. EVID. 403 ............................................................................................. passim

TEX. R. EVID. 404 .............................................................................................. 86,91

TEX. R. EVID. 503 .................................................................................................... 13

TEX. R. EVID. 802 .................................................................................................. 103

TEX. R. EVID. 901 .................................................................................................. 103

TEX. R. EVID. 902 .................................................................................................. 103

Vi

Rules

ABA Standing Comm. on Ethics & Profl Responsibility, Formal Opinion 10-456

(2010) ................................................................................................................... 16

ABA, ABA STANDARDS FOR CRIMINAL JUSTICE (3d ed. 1993) ........................ 10, 11

ABA, Guidelines for the Appointment and Performance of Defense Counsel in

Death Penalty Cases, 31 HOFSTRA L. REv. 913 (2003) ............................... passim

State Bar of Tex., Guidelines and Standards for Texas Capital Counsel, 69 TEX.

B.J. 966 (2006) ........................................................................................ 10, 11, 16

Vll

APPLICATION FOR A WRIT OF HABEAS CORPUS

This is a Capital Case

In 1976, the Supreme Court banned the practice of sentencing that made the

death penalty mandatory for all capital murders. Woodson v. North Carolina, 428

U.S. 280 (1976). Because of the "diverse frailties of mankind" the Court held that

the Constitution required "particularized consideration of relevant aspects of the

character and record of each convicted defendant before the imposition upon him

of a sentence of death." Id. at 303-04. This landmark decision recognized the

importance of presenting mitigating evidence specifically tailored to an individual

defendant.

There is a "belief, long held by this society, that defendants who commit

criminal acts that are attributable to a disadvantaged background ... may be less

culpable than defendants who have no such excuse." Wiggins v. Smith, 539 U.S.

510, 535 (2003). The State attempted to portray Roderick Harris as a defendant

with no mitigating factors in his life story, someone who had "a pretty decent

childhood" who was "so fortunate to have family" testify on his behalf. (66 RR at

40-41, 74-75, 89.) However, this characterization of Harris is wholly inaccurate,

for Harris was destined for disadvantage before he was born.

Harris was born to seventeen-year-old single mother Pamela Maddox. Ms.

Maddox, born and raised in West Dallas, had spent at least a decade prior to

Harris's birth living with her own mother at 3544 Nomas Street, less than half a

mile downwind of a lead smelting facility that was later declared a Superfund

hazardous waste site. As a child, Ms. Maddox was exposed to toxic levels of lead

in the air and in the ground. Because lead accumulates in the bones, and can be

transferred from mother to child during pregnancy, Harris likely was exposed to

lead in utero.

1

Harris lived on Nomas Street, in the shadow of the lead smelter, for

approximately six of the first eight years of his life. Children are particularly

sensitive to lead exposure, which can damage the central nervous system, damage

the brain, and result in cognitive and academic deficits.

Harmful as it is, lead was not the only toxin Harris was exposed to in utero.

Harris's mother consumed alcohol during the first trimester, before she was aware

of her pregnancy. As a result, Harris exhibits deficits in cognitive functioning, and

has a history of neurodevelopmental disorders that are consistent with a diagnosis

of Alcohol Related Neurodevelopmental Disorder, one of the specific diagnostic

conditions of Fetal Alcohol Spectrum Disorder ("FASD"). Individuals with FASD

suffer from deficits in an array of cognitive functions, including attention, learning,

logical thinking, impulse inhibition, and self-regulation. Because of these deficits,

these individuals also struggle socially and are linked to disproportionate rates of

mental illness, drug abuse, and involvement in the criminal justice system.

As he grew up, Harris struggled at home and in school. For most of his

childhood, the relationship between Harris's mother and stepfather was physically

and verbally abusive. Harris and his half-brothers were often left alone, or taken to

adult parties where there was open consumption of alcohol and marijuana. Mr.

Maddox treated Harris more strictly than his two biological sons, and this, in tum,

led Harris to run away from home as a juvenile.

At the age of seven, Harris was diagnosed with Attention Deficit

Hyperactivity Disorder ("ADHD") and he was prescribed Ritalin. Despite the

positive effect Ritalin had on Harris's behavior, his parents frequently took him off

the medication, citing Harris's zombie-like affect when he took it. Harris cycled

on and off the medication until he reached puberty, when the treatment was

discontinued altogether.

2

Along with ADHD, Harris labored with learning disabilities throughout his

time in school. He was continuously placed in special education classes, and he

struggled behaviorally, as well, earning several suspensions and expulsions, which

led to his involvement in the juvenile justice system.

It is not altogether surprising that amidst this chaotic background, Harris

found some solace in a juvenile street gang. Harris joined the gang at the age of

ten but left it before dropping out of high school. The gang he joined was not a

violent, organized criminal enterprise but functioned more as a group of similarly-

situated adolescents from the same neighborhood.

Harris's jury did not hear the full complement of information available to

describe his childhood, adolescence, and early adulthood. Moreover, no evidence

was presented about Harris's prenatal exposure to two poisonous substances-

alcohol and lead-nor the effects of this exposure on his cognitive functioning.

This evidence was available, could have been presented through the testimony of

both lay and expert witnesses, and would have been incredibly relevant and

persuasive to a juror during Harris's trial.

Because Harris's constitutional and statutory rights were violated by the

omission of this evidence from his trial, Harris's verdict and death sentence should

be reversed.

3

I.

PROCEDURAL HISTORY

Roderick Harris is confined under a sentence of death pursuant to the

judgment of Criminal District Court No.7, Dallas County, Texas, cause number

F09-00409, which was rendered on May 21,2012 (66 RR at 107)1 and entered on

the same day (2 CR at 709).

A. Trial Court Proceedings

The Court appointed Brad Lollar, Doug Parks, and Mike Howard to

represent Harris during his capital trial.

1. Indictment

On June 2, 2009, a grand jury indicted Harris with capital murder for

intentionally causing the death of Alfredo Gallardo while in the course of

committing and attempting the offense of robbery. (1 CR at 7.)

2. Recusal Proceedings

Harris's case was initially assigned to the 203rd District Court in Dallas

County, Judge Teresa Hawthorne presiding. On December 19, 2011, Judge

Hawthorne heard arguments pertaining to pretrial motions filed on behalf of

Harris. (4 RR at 5, et seq.) During this proceeding, Judge Hawthorne granted

several defense motions which declared the death penalty unconstitutional. (ld. at

19.) The State filed a motion to recuse Judge Hawthorne on December 21,2011 (2

CR at 572), and a hearing was held on January 3, 2012, before Presiding

Administrative Judge John Ovard. (6 RR at 6, et seq.) Judge Ovard granted the

State's motion to recuse Judge Hawthorne, and the case was assigned to Criminal

District Court No.7, Judge Michael Snipes presiding. (2 CR at 581-82.) Judge

1"CR" refers to the Clerk's Record of Harris's capital trial. "RR" refers to

the Reporter's Record of Harris's capital trial.

4

Snipes later reviewed de novo Judge Hawthorne's constitutional rulings, which he

overturned. (8 RR at 14-34.)

3. Trial

Voir dire began on January 9, 2012, and concluded on March 26, 2012. (9

RR at 4; 52 RR at 75.) Harris was arraigned on May 8, 2012, and entered a plea of

not guilty. (58 RR at 6-7.) Later that day, the State gave an opening statement and

called the first witness. (Id. at 17, 27.) The State rested its case for guilt on May

10,2012. (60 RR at 75.) Defense counsel did not give an opening statement, but

did call one witness before resting its case. (Id. at 79, 81.) Both sides gave closing

arguments, and the case was submitted to the jury for deliberation. (Id. at 92-125.)

The jury returned with a verdict finding Harris guilty of capital murder. (Id. at

126.)

The punishment phase began on May 14, 2012, with the State giving an

opening statement. (62 RR at 19.) The State then presented its case regarding

punishment, and rested on May 16, 2012. (64 RR at 118.) Defense counsel

proceeded to give an opening statement before presenting its case. (Id. at 140.)

After calling a number of witnesses, defense counsel rested on May 17,2012. (65

RR at 233.) The State then presented several witnesses in rebuttal, including five

witnesses who provided victim impact testimony. (Id. at 234-95, 300-16.) The

next day, May 18, 2012, both sides presented closing arguments before the case

was given to the jury. (66 RR at 30, et seq.) The jury did not reach a verdict as to

punishment during the first day of deliberations, so the Court excused the jury for

the weekend. (Id. at 96.) On May 21, 2012, the jury reconvened to continue

deliberations, and returned with a verdict later that day, answering "Yes" to

Special Issue One and "No to Special Issue Two. (Id. at 103-04.) Harris was then

formally sentenced to death by the Court. (Id. at 107.)

5

B. State Appellate Proceedings

Harris was notified of his right to appeal on May 21, 2012. (2 CR at 712.)

He was declared indigent and on May 23, 2012, John Tatum was appointed to

represent Harris for the purpose of filing a direct appeal. (Id. at 713.) Appellate

counsel filed a motion for a new trial on June 15,2012, which was overruled. (Id.

at 714.)

On September 3, 2013, appellate counsel filed an opening appellate brief in

Roderick Harris v. The State a/Texas, cause number AP-76,810. The State filed

its brief in response on January 28, 2014. Both the State and post-conviction

counsel filed motions requesting that the clerk and court reporter supplement the

trial record. The clerk did so and ultimately provided four supplements to the

clerk's record. (See CR Supps. 1-4.) Both the State and direct appeal counsel

presented oral argument before the CCA on April 2, 2014. On May 21, 2014, the

CCA denied Harris's direct appeal in full.

C. State Habeas Proceedings

On May 22, 2012, the Office of Capital Writs ("OCW") was appointed to

represent Harris for the purpose of investigating and filing a writ of habeas corpus

pursuant to Article 11.071 of the Texas Code of Criminal Procedure. This

Application follows.

II.

STATEMENT OF FACTS

A. Guilt/Innocence Phase Presentation

During the guilt/innocence phase of Harris's trial, the prosecution presented

evidence and testimony to show that on March 17, 2009, Harris shot and killed

Alfredo Gallardo while in the course of robbing Alfredo and his family. Though

Harris was only on trial for the death of Alfredo, the State presented evidence that

Harris shot and killed Alfredo's brother, Carlos Gallardo. Specifically, the

6

prosecution presented testimony from three members of the Gallardo family who

described how Harris entered their home, held them at gunpoint, and attempted to

rob them before engaging in a struggle with Alfredo and Carlos, during which both

were shot and killed. (58 RR at 37-151.) Alfredo's son, Omar Gallardo, fled the

scene and notified a security guard, who then called the police. (Id. at 27-37.) As a

result, a number of officers from the Dallas Police Department were present at the

scene when Harris exited the Gallardo's trailer home. Several responding officers

testified about the apprehension of Harris. (Id. at 151-241; 59 RR at 8-48, 146-59.)

A number of police officers, crime scene technicians, and lab analysts were called

to testify regarding the collection and analysis of evidence found at the scene. (59

RR at 49-103, 127-45, 159-261; 60 RR at 52-75.) Two Dallas County medical

examiners testified about the wounds and causes of death for both Alfredo

Gallardo and Carlos Gallardo. (59 RR at 261-302.)

Following the testimony of the medical examiners, it was brought to the

court's attention that a juror had discussed reading newspaper articles about the

trial with several other jurors. After questioning the offending juror, as well as the

remaining jurors, he was dismissed and the first alternate juror seated. Defense

counsel's motion for a mistrial was denied. (60 RR at 5-50.)

The defense presented one witness, recalling Alfredo's daughter Yahaira

Gallardo to the stand. (Id. at 79-81.) Yahaira testified that her father was wearing

a white T-shirt at the time he was shot. Following Yahaira's testimony, the

defense rested its case. (Id. at 81.)

Closing arguments took place shortly thereafter, and, later that same day, the

jury found Harris guilty of capital murder. (Id. at 126.)

B. Punishment Phase Presentation

The State's presentation at punishment initially focused on Harris's

extraneous offenses in middle school and high school (62 RR at 27-38, 72-93), as a

7

juvenile living in Atlanta (id. at 94-118), and as a juvenile and young adult living

in the Dallas area (id. at 119-225; 63 RR at 125-36). The jury also heard testimony

that Harris was affiliated with a street gang. (62 RR at 43-70.) The State also

implicated Harris in an unsolved armed robbery committed on February 15, 2009

(id. at 229-73; 63 RR at 11-125), and in an unsolved robbery-murder committed on

March 3, 2009 (63 RR at 137-316; 64 RR at 24-118). After presenting this

evidence, the State rested. (64 RR at 118.)

The defense's presentation at punishment consisted of three parts. First, trial

counsel sought to undermine a witness's photographic identification of Harris as

the shooter in the unsolved armed robbery committed on February 15, 2009. (64

RR at 155-215.) Second, trial counsel solicited testimony from Harris's mother

Pamela Maddox, stepfather Ramon Maddox, Sf., half-brother Ramon Maddox, Jr.,

and maternal cousin Shamy Conley concerning Harris's upbringing, childhood,

learning disability, and drug use. (ld. at 215-93; 65 RR at 29-63, 70-118.) Finally,

four expert witnesses were presented, testifying about prison conditions (65 RR at

170-92), risk factors for delinquent behavior (id. at 152-70), Harris's drug

addiction (id. at 119-46), and the Texas Department of Criminal Justice's inmate

classification system (id. at 193-233).

The State presented rebuttal testimony regarding Harris's behavior while at

the Dallas County Jail (65 at 261-84), and the impact of Alfredo's death on his

family (id. at 285-95, 308-16). In addition, an investigator with the Dallas County

District Attorney's Office testified about phone calls made by Harris while he was

incarcerated at the Dallas County Jail. (Id. at 295-308; 66 RR at 10-23.)

8

III.

STANDARD OF CARE

A. Ineffective Assistance of Trial Counsel

A criminal defendant is guaranteed the right to trial representation. This

Sixth Amendment right to counsel "preserves the fairness, consistency, and

reliability of criminal proceedings by ensuring that the process is an adversarial

one." Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012).

An ineffective assistance of counsel claim has two components: Harris must

show that counsel's performance was deficient, and that the deficiency prejudiced

the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Porter v.

McCollum, 558 U.S. 30, 38-39 (2009); Wiggins, 539 U.S. at 521; Virgil v. Dretke,

446 F.3d 598, 608 (5th Cir. 2006); Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex.

Crim. App. 2012); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)

("[A]ppellant must show a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.").

To establish deficiency, Harris must show his counsel's representation fell

below an objective standard of reasonableness. Porter, 558 U.S. at 38-39 (quoting

Strickland, 466 U.S. at 688). A defendant need only prove ineffective assistance of

counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. This

standard governs the claim as a whole, and does not replace the more lenient

"reasonable probability" standard for the prejudice prong.

The Supreme Court has reiterated that it applies a "case-by-case approach to

determining whether an attorney's perfonnance was unconstitutionally deficient

under Strickland." Rompilla v. Beard, 545 U.S. 374, 393-94 (2005) (O'Connor, J.,

concurring) (citing Strickland, 466 U.S. 668).

Deficient performance is performance that is "inconsistent with the standard

of professional competence in capital cases that prevailed [at the time of the trial]."

9

Cullen v. Pinholster, _U.S._, 131 S. Ct. 1388, 1407 (2011). The Supreme Court

has repeatedly assessed the reasonableness of counsel's performance by looking to

"[p]revailing norms of practice as reflected in [the] American Bar Association

standards." Strickland, 466 U.S. at 688; see also Padilla v. Kentucky, 559 U.S.

356,367 (2010) (noting that the ABA Standards "may be valuable measures of the

prevailing professional norms of effective representation"); Rompilla, 545 U.S. at

387 ('''[W]e long have referred [to the ABA Standards for Criminal Justice] as

"guides to determining what is reasonable."'" (quoting Wiggins, 539 U.S. at 524)).

Because adequacy is based upon "counsel's perspective at the time," Strickland,

466 U.S. at 689, courts must look to the guidelines then in effect. See Bobby v.

Van Hook, 558 U.S. 4 (2009).

At the time of Harris's trial, his attorneys' obligations were governed by the

"prevailing professional norms," even if those norms did not align with a less

rigorous defense based on "most common customs." Harrington v. Richter, _

U.S. _,131 S. Ct. 770, 788 (2011). The Supreme Court instructs courts to look at

the "norms of practice as reflected in the American Bar Association and the like"

and to consider "all the circumstances" of a case. Strickland, 466 U.S. at 688.

These sources of norms include the ABA Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases, 31 HOFSTRA L. REv. 913

(2003) ("ABA Guidelines"), and the ABA Standards for Criminal Justice (3d ed.

1993) ("ABA Standards"). See also State Bar of Tex., Guidelines and Standards

for Texas Capital Counsel, 69 TEX. BJ. 966 (2006) ("Texas Guidelines").

Defense counsel has a duty to make reasonable investigations or to make a

reasonable decision that l11akes particular investigations unnecessary. Wiggins,

539 U.S. at 521; Strickland, 466 U.S. at 690-91. "[The] Guidelines applied the

clear requirements for investigation set forth in the earlier Standards to death

penalty cases and imposed ... similarly forceful directive[s]." Rompilla, 545 U.S.

10

at 387 n.7. Pursuant to the ABA Guidelines, counsel was required to conduct

"thorough and independent investigations relating to the issues of both guilt and

penalty." ABA Guidelines, Guideline 10.7. A court must consider not only the

quantum of evidence already known to counsel, but also whether the known

evidence would lead a reasonable attorney to investigate further. Miller v. Dretke,

420 F.3d 356, 361 (5th Cir. 2005); Wiggins, 539 U.S. at 521. When defense

counsel is not aware of the relevant mitigating evidence, "the issue is not whether

he was ineffective for failing to present [the] evidence ... , but rather whether he

failed to conduct a reasonable investigation to uncover mitigating evidence." Ex

parte Gonzales, 204 S.W.3d 391,396 (Tex. Crim. App. 2006).

Similarly, the ABA Standards state that counsel "should conduct a prompt

investigation of the circumstances of the case and explore all avenues leading to

facts relevant to the merits of the case and the penalty." ABA Standards, Standard

4-4.1; Texas Guidelines, Guideline 11.1. Most significantly, "[t]he duty to

investigate exists regardless of the accused's admissions or statements to defense

counsel of facts constituting guilt or the accused's stated desire to plead guilty."

ld. Similarly, the duty to investigate may exist despite the accused's failure to

mention potentially mitigating evidence or the accused's affirmative denial that

such evidence exists. Romp illa , 545 U.S. at 377; Ex parte Gonzales, 204 S.W.3d

at 396.

Once capital trial counsel completes the necessary pretrial investigation, he

must then formulate a defense theory "that will be effective in connection with

both guilt and penalty, and should seek to minimize any inconsistencies." ABA

Guidelines, Guideline 10.1 0.1. The CCA holds capital counsel to an even higher

standard: "It is not sufficient to inquire generally and leave it up to the defendant to

raise topics or respond to open-ended questions. Like a doctor, [capital] defense

counsel must be anned with a comprehensive check-list of possibilities, and

11

forcefully inquire about each topic." Ex parte Gonzales, 204 S.W.3d at 400-01

(Cochran, 1, concurring).

To establish prejudice, Harris "must show that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable

probability is "a probability sufficient to undermine confidence in [the] outcome."

Porter, 558 U.S. at 44 (quoting Strickland, 466 U.S. at 693-94). Harris need not

show that counsel's deficient conduct "more likely than not altered the outcome"

in his case, Strickland, 466 U.S. at 693, but he must demonstrate that "the

likelihood of a different result [is] substantial, not just conceivable." Richter, 131

S. Ct. at 792. State courts "must decide whether the undiscovered and unoffered

evidence would have created a reasonable probability that, had the jury heard it,

the jury's verdict would have been different." Ex parte Martinez, 195 S.W.3d 713,

731 (Tex. Crim. App. 2006).

State post-conviction courts must analyze a capital penalty phase

ineffectiveness claim by "reweigh[ing] the evidence in aggravation against the

totality of available mitigating evidence." Wiggins, 539 U.S. at 534. It is not

necessary for the petitioner to demonstrate that the newly presented mitigation

evidence would necessarily overcome the aggravating circumstances. Williams v.

Taylor, 529 U.S. 362, 394-98 (2000). The Constitution requires that state post-

conviction courts "engage with what [a defendant] actually went through," as

expressed in mitigating evidence. Porter, 558 U.S. at 44. It is not only incorrect

but "unreasonable to discount to irrelevance [mitigating] evidence ... [or] to

conclude that [certain mitigating evidence] would be reduced to inconsequential

proportions simply because the jury would also have learned [of related

aggravating evidence]." Jd. The CCA has "adapted the Supreme Court's prejudice

test to require that there is a reasonable probability that, absent the errors, the jury

12

would have answered the mitigation issue differently." Ex parte Gonzales, 204

S.W.3d at 394.

B. Ineffective Assistance of Appellate Counsel

Ineffective assistance of appellate counsel claims are governed by

Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000) ("the proper standard for

evaluating [a petitioner's] claim that appellate counsel was ineffective ... is that

enunciated in Strickland v. Washington"); Evitts v. Lucey, 469 U.S. 387, 396-97

(1985) (the Fourteenth Amendment requires the assistance of counsel to appellants

for their first appeal as of right); accord Ries v. Quarterman, 522 F.3d 517, 531-32

(5th Cir. 2008); Ex parte Santana, 227 S.W.3d 700, 704-05 (Tex. Crim. App.

2007).

An appellate counsel has a duty to reVIew the record and present any

potentially meritorious claims. Meza v. State, 206 S. W.3d 684, 689 (Tex. Crim.

App. 2006) (noting appellate counsel's "constitutional duty to review the record

for any arguable error").

C. Scope of the Waiver of Attorney-Client Privilege

Harris recognizes that raising specific issues of ineffective assistance of

counsel as developed in this Application operates as a limited waiver of privileged

information; however, he asserts his right to have all privileged information not

directly relevant to his claims remain privileged.

Under the Texas Rules of Evidence, confidential communications between a

client and his attorney are privileged. TEX. R. EVID. 503(b)(1)(A) ("A client has a

privilege to refuse to disclose and to prevent any other person from disclosing

confidential communications made for the purpose of facilitating the rendition of

professional legal services to the client ... between the client ... and the client's

lawyer."). The privileged nature of communications between client and attorney

13

remains intact, even upon the tennination of the attorney-client relationship. See

Maryland Am. Gen. Ins. v. Blackmon, 639 S.W.2d 455,458 (Tex. 1982).

The privilege between attorney and client is not absolute. It is "well-

established ... that when an attorney's professional conduct is challenged by the

client, the privilege is waived so far as necessary to defend the attorney's

character." West v. So lito , 563 S.W.2d 240,245 n.3 (Tex. 1978). In the context of

criminal law, courts across the nation have consistently "held that a claim of

ineffective assistance of counsel by a defendant against a fonner attorney waives

the attorney-client privilege." Joseph v. State, 3 S.W.3d 627, 637 (Tex. App.-

Houston [14th Dist.] 1999) (citing Laughner v. United States, 373 F.2d 326, 327

(5th Cir. 1967)); see also United States v. Pinson, 584 F.3d 972, 978 (lOth Cir.

2009).

However, any Waiver of the attorney-client privilege only applies to

communications relevant to the claim of ineffective assistance of counsel.

Laughner, 373 F.2d at 327 (where "the client alleges a breach of duty to him by the

attorney, ... he thereby waives the privilege as to all communications relevant to

that issue" (emphasis added)). Courts have consistently limited the scope of these

waivers, pennitting disclosure of only those confidential communications that are

"necessary to prove or disprove [the client's] claims." Pinson, 584 F.3d at 978

(emphasis added).2

2 See also Bittaker v. Woodford, 331 F.3d 715, 720 (9th Cir. 2003)

("Because a waiver is required so as to be fair to the opposing side, the rationale

only supports a waiver broad enough to serve that purpose. Courts, including ours,

that have imposed waivers under the fairness principle have therefore closely

tailored the scope of the waiver to the needs of the opposing party in litigating the

claim in question."); Johnson v. Alabama, 256 F.3d 1156, 1179 (11 th Cir. 2001)

("[A] habeas petitioner alleging that his counsel made unreasonable strategic

decisions waives any claim of privilege over the contents of communications with

counsel relevant to assessing the reasonableness of those decisions in the

14

Predecessor counsel's duty to limit disclosure to information relevant to the

claim of ineffective assistance also flows from counsel's continuing duty to the

former client. Both the ABA Guidelines and the Texas Guidelines stipulate that,

"[i]n accordance with professional norms, all persons who are or have been

circumstances." (emphasis added)); United States v. Basham, Cr. No. 4:02-992-

JFA, 2012 WL 1130657 at *6 (D.S.C. Apr. 4, 2012) (unpublished) ("the

Government will not use and will not make copies of any material or information

in trial counsel's files that is not related or relevant to a claim in Basham's § 2255

Motion" (emphasis added)); In re Nat'l Mortg. Equity Corp. Mortg. Pool

Certificates Sec. Litig., 120 F.R.D. 687, 692 (C.D. Cal. 1988) (in which the court

"reject[ed] the suggestion made by some parties that 'selective' disclosure should

not be allowed, that if the exception is permitted to be invoked, all attorney-client

communications should be disclosed" as "directly contrary to the reasonable

necessity standard"); Levin v. Ripple Twist Mills, Inc., 416 F. Supp. 876, 886-87

(E.D. Pa. 1976) ("In almost any case when an attorney and a former client are

adversaries in the courtroom, there will be a credibility contest between them. This

does not entitle the attorney to rummage through every file he has on that

particular client (regardless of its relatedness to the subject matter of the present

case) and to publicize any confidential communication he comes across which may

tend to impeach his former client. At the very least, the word 'necessary' in the

disciplinary rule requires that the probative value of the disclosed material be great

enough to outweigh the potential damage the disclosure will cause to the client and

the legal profession."); Alabama v. Lewis, 36 So. 3d 72, 77-78 (Ala. Crim. App.

2008) (noting that, by alleging "ineffective assistance of counsel during the trial

and direct appeal of these cases, the defendant waived the benefits of both the

attorney-client privilege and the work product privilege, but only with respect to

matters relevant to his allegations of ineffective assistance of counsel" (second

emphasis added)); Waldrip v. Head, 532 S.E.2d 380, 387 (Ga. 2000) ("[W]e hold

that a habeas petitioner who asserts a claim of ineffective assistance of counsel

makes a limited waiver of the attorney-client privilege and work product doctrine

and the state is entitled only to counsel's documents and files relevant to the

specific allegations of ineffectiveness." (emphasis added)); In re Dean, 711 A.2d

257, 258-59 (N.H. 1998) ("We hold that claims of ineffective assistance of

counsel, whether brought in a motion for new trial or in a habeas corpus

proceeding, constitute a waiver of the attorney-client privilege to the extent

relevant to the ineffectiveness claim; the waiver is a limited one." (emphasis

added)).

15

members of the defense team have a continuing duty to safeguard the interests of

the client." ABA Guidelines, Guideline 10.13; Texas Guidelines, Guideline 11.8.

ABA Formal Opinion 10-456 states that, in the context of an ineffective assistance

of counsel claim, lawyers may disclose information "reasonably necessary" for

resolution of the ineffectiveness claim. ABA Standing Comm. on Ethics & Profl

Responsibility, Formal Opinion 10-456, at 5 (2010). However, the opinion further

states that it is "highly unlikely that a disclosure in response to a prosecution

request, prior to a court-supervised response by way of testimony or otherwise,

will be justifiable." ld.

IV.

ARGUMENT

CLAIM ONE

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY

FAILING TO SUFFICIENTLY INVESTIGATE AND PRESENT CERTAIN

MITIGATING EVIDENCE DURING HARRIS'S TRIAL

At the heart of the punishment phase of a capital trial is the presentation of

mitigation evidence and the concept of moral culpability. Moral culpability

acknowledges an elementary psychological reality-that people do not arrive at

their choices from the same path. Thus, it follows that the degree of an individual's

"blameworthiness" for capital murder may vary depending on what factors and

experiences shape, influence, and/or compromise that choice. A jury's

understanding of the evidence affecting the moral culpability of a defendant is

critical to a jury's consideration of the appropriate punishment for a capital

offense.

Mitigating evidence is not developed to provide a defense to the crime or to

challenge evidence of guilt, nor is it an excuse or explanation for a crime. Instead,

it provides a context for the crime by describing an individual's life experiences

16

that serve to inspire compassion, empathy, mercy, and/or understanding. Indeed,

mitigating evidence is any evidence that "might serve' as a basis for a sentence less

than death.'" Tennard v. Dretke, 542 U.S. 274, 287 (2004) (quoting Skipper v.

South Carolina, 476 U.S. 1, 5 (1986)) (emphasis added); Coble v. State, 330

S.W.3d 253,296 (Tex. Crim. App. 2010) (acknowledging Tennard's language that

no nexus is required between mitigating evidence and the crime).

The standards for professional norms for capital representation require that

trial counsel make a thorough investigation into the areas of mitigating evidence

that might be presented on a defendant's behalf. ABA Guidelines, Guideline 10.7

(commentary) (noting that a "penalty phase preparation requires extensive and

generally unparalleled investigation into personal and family history"); ABA,

Supplementary Guidelines for the Mitigation Function of Defense Teams in Death

Penalty Cases, 36 HOFSTRA L. REv. 677, 688 (2008) ("ABA Mitigation

Guidelines") ("It is the duty of counsel to lead the team in conducting an

exhaustive investigation into the life history of the client. It is therefore incumbent

upon the defense to interview all relevant persons and obtain all relevant records

and documents that enable the defense to develop and implement an effective

defense strategy.").

But it is also not enough to simply gather the facts of a defendant's life story

and then present it through lay witness testimony. An expert should also be

retained to synthesize that information into a coherent psycho-social narrative for

presentation to the jury. See ABA Guidelines, Guideline 10.11 (commentary)

(noting the importance of presenting "the client's complete social history" at

punishment); see also ABA Mitigation Guidelines, Guideline 10.11. Such an

expert lises their particularized expertise relevant to the defendant to present his

social history in a cohesive narrative for the jUly. John Blume, Mental Health

Issues in Criminal Cases: The Elements of a Competent and Reliable Mental

17

Health Examination, 17 THE ADVOCATE 4, 10 (Aug. 1995) ("[P]ersuasive expert

testimony must ... enable the jury to see the world from your client's perspective,

i.e., to appreciate his subjective experience.").

Like any subject matter which warrants an expert opinion, the forces that

have helped to determine a defendant's life story must be explained to the jury in a

way that illuminates why they are relevant to moral culpability. It is not sufficient

to present a parade of witnesses discussing the defendant's history-an expert

witness is needed to give that life history context. Put differently,

you have to give the fact-finder a view of the crime from the

defendant's perspective. If you don't, you run the risk of making your

client seem "otherly," frightening and thus expendable. What you

strive for is to enable the fact-finder to look through your client's eyes

and to walk, at least for a few minutes, in his shoes.

Blume, ante, at 1O.

During the defense's presentation on mitigation during the punishment phase

of trial, counsel offered testimony from four family members-Harris's mother,

brother, stepfather, and cousin-to discuss various details of Harris's life story.

(64 RR at 215, 257; 65 RR at 29, 88.) Their testimony explained to the jury that

Harris's family (including his mother) struggled with mental illness; that Harris

was exposed to family violence, physical abuse, and drug abuse as a child; that

Harris was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD")

and put on Ritalin; and that Harris began running away from home, became

involved in juvenile gang and street life, and ultimately dropped out of school. (64

RR at 215, 257; 65 RR at 29, 88.) Counsel understood the potential impact of

these facts when woven together as a narrative, arguing to the jury in closing that

the facts they had presented were meant to tell the jury "how a child, how a baby,

came to where this man is today." (66 RR at 42.)

18

Counsel's investigation and presentation of Harris's mitigation case,

however, failed to fulfill their purpose in two respects. First, counsel failed to

investigate and develop evidence regarding two very serious and mitigating root

causes of Harris's life impairments. Evidence was available that Harris suffered

from prenatal exposure to alcohol, causing cognitive impairments consistent with

Fetal Alcohol Spectrum Disorder ("FASD"). Further, Harris was exposed to toxic

levels of lead from a smelter located in the heart of his childhood neighborhood.

Second, counsel failed to investigate and develop sufficient expert testimony

to explain to the jury why the facts of Harris's life that were presented by family

members should be considered mitigating. The only expert testimony the jury

heard relating to mitigation came from an addictions expert discussing the impact

of Harris's drug use and from a psychologist speaking academically about risk

factors for childhood delinquency. (65 RR at 19, 64, 152.) Without further

explanation from expert witnesses about the mitigating impact of Harris's life

trajectory, the jury was left without a context to understand why Harris's

behavioral issues as a child, his ADHD diagnosis, or his entry into gang life and

drug use were mitigating. Instead, the jury heard the State explain that "from all

accounts," Harris had "a pretty decent childhood, growing up together, playing,

fun, you know, happy." (66 RR at 74.)

Yet, substantial expert testimony was available that would have explained

why Harris's life trajectory was not of his own making but the product of many

environmental, social, and institutional forces. Beginning with his prenatal

exposure to both alcohol and lead, Harris entered the world disadvantaged and

impaired. His family circumstances deprived him of secure attachments and

healthy childhood development. And when Harris's cognitive and developmental

impairments began to manifest, they were misinterpreted by both his parents and

school officials and treated as mere behavioral problems. Harris entered what has

19

become known as the "school to pnson pipeline," pointing his life trajectory

toward street life, gangs, drug abuse, and, ultimately, incarceration through the

juvenile and adult criminal justice systems.

Such testimony would have offered Harris's jury a starkly different

understanding of why Harris's life story was mitigating and why Harris deserved a

life sentence. Counsel's failure to investigate and present the above-mentioned

information constituted deficient performance of capital counsel and prejudiced

Harris's trial. Counsel's ineffective assistance violated Harris's rights under the

state and federal Constitutions, state statutory law, and United States Supreme

Court and state case law. For these reasons, his sentence should be reversed.

A. Trial Counsel Was Ineffective for Failing to Investigate and Present

Available Evidence that Harris Suffers from Fetal Alcohol Spectrum

Disorder

Prior to Roderick Harris's capital murder trial, counsel was aware that

Harris's mother, Pamela Maddox, drank alcohol while she was pregnant with

Harris. However, counsel failed to thoroughly investigate the effect Ms. Maddox's

prenatal drinking had on Harris. Had trial counsel done so, they would have

discovered that Harris suffers from FASD, an umbrella term that encompasses a set

of neurological conditions resulting from prenatal brain damage caused by

maternal consumption of alcohol during pregnancy. This failure deprived the jury

of significant mitigating evidence that reasonably could have influenced the verdict

in Harris's punishment phase.

1. What Is Fetal Alcohol Spectrum Disorder?

F ASD is an umbrella term for several medical diagnoses caused by maternal

consumption of alcohol during pregnancy. (Ex. 1 at '-;11 [Aff. of Dr. Natalie

20

- ---------------------------------------------

Brown].)3 The mother's drinking leads to prenatal brain damage in the developing

embryo or fetus. (ld. ) There are three distinct yet closely-related specific

diagnoses encompassed by FASD: Fetal Alcohol Syndrome ("FAS"), Partial Fetal

Alcohol Syndrome ("Partial F AS"), and Alcohol Related Neurodevelopmental

Disorder ("ARND"). (Jd.) In general, the three conditions do not vary in the

severity of the associated brain damage, but are distinguished by variations in the

external, physical damage attributed to the disorder (e.g., facial abnormalities,

growth deficits). (ld.) Similarly, damage to the central nervous system can be

equally severe, regardless of the specific condition that is diagnosed. (Jd.)

F ASD has a worldwide diagnostic history that at the time of Harris's capital

murder trial spanned nearly forty years. (Ex. 1 at ~12 [Aff. of Dr. Natalie Brown].)

FAS was first recognized in 1973 by researchers at the University of Washington.

(Jd.) Diagnostic criteria for F ASD were published in 1996 by the Institute of

Medicine, the health arm of the independent National Academy of Sciences. (ld.)

In 2004, the Centers for Disease Control and Prevention expanded upon and

quantified the diagnostic criteria, making them more explicit. (ld.)

Under the diagnostic criteria, a diagnosis of F AS requires three present

factors: (1) presence of facial abnormalities (e.g., small palpebral fissures or eye

slits, smooth philtrum or groove between the bottom of the nose and upper lip, and

thin upper lip); (2) a growth deficit at any point in life; and (3) central nervous

system abnormality. (Ex. 1 at,-r13 [Aff. of Dr. Natalie Brown].) A central nervous

system abnormality can be measured structurally (e.g., neuroimaging),

neurologically (e.g., seIzures, gait problems), or functionally (e.g.,

neuropsychological testing). (Jd.)

Dr. Brown is a licensed psychologist who specializes in the evaluation of

3

individuals with FASD. (Ex. 1 at ,-r,-r1-2, 4,6-7 [Aff. of Dr. Natalie Brown].)

21

If there is confirmation of prenatal exposure to alcohol, a diagnosis of Partial

FAS or ARND can be reached. (Ex. I at'i[13 [Aff. of Dr. Natalie Brown].) A

Partial F AS diagnosis requires central nervous system abnormality along with one

or more of the above-mentioned facial abnormalities. (Id.) A diagnosis of ARND

requires only a central nervous system abnormality. (Id.)

Brain damage resulting from F ASD can cause an array of functional deficits

and impaired neurocognitive functioning. (Ex. I at 'i[I4 [Aff. of Dr. Natalie

Brown].) Basic deficits attributed to F ASD are referred to as "primary

disabilities." (Id.) These disabilities include deficits in attention, learning,

memory, language development, logical thinking, impulse inhibition and behavior

control, among others. (Id.) Only about 10% of individuals with FASD have IQ

scores at or below 70, and a score above 70 may mask other significant cognitive

deficits that, when considered together, have a substantial negative impact on

adaptive and/or social functioning. (Id.) This is due to the fact that individuals

with F ASD generally perform best in structured, familiar settings in which they

can rely on external guidance as opposed to their own judgment. (Id. at 'i[I5.)

Thus, IQ test scores reflect the performance of an individual with FASD in a

situation which favors them, i.e., a controlled, structured setting. (Id.) In contrast,

when an individual with F ASD is left to their own devices with little or no

direction, the individual's adaptive deficits are exposed. (Id.) This decline in

adaptive performance is associated with executive dysfunction, which is controlled

by the prefrontal cortex of the brain. (Id.) Neuroimaging studies have revealed

that the prefrontal cortex is particularly sensitive to the teratogenic effects of

maternal alcohol use during pregnancy. (Id.)

The deficits in cognitive functioning attributed to FASD often result in

individuals suffering what are referred to as "secondary disabilities." (Ex. 1 at'i[16

[Aff. of Dr. Natalie Brown].) Secondary disabilities are the product of the

22

interaction between neurological executive dysfunction and traumatic

environmental experiences in childhood. (Jd.) Individuals with F ASD have

deficits in social skills and social judgment (an executive function). (Jd.) When

faced with a stressful situation, individuals with FASD frequently react with

ineffective coping responses (e.g., internalizing or externalizing behaviors). (Jd.)

Thus, these secondary disabilities reflect maladaptive coping reactions to

environmental stress and usually can result in mental health disorders, school

disruption, substance abuse, criminal behavior, confinement, poor work history,

and struggling to live independently as an adult. (Jd.) In fact, nearly two-thirds of

juveniles with FASD will go on to commit a crime at least once in their lives. (ld.)

Epidemiological studies estimate that 5% of the United States population are

afflicted with FASD, and that FASD afflicts between 16% and 23% of individuals

caught up in the criminal justice system. (Jd.)

The effects of these secondary disabilities can be mitigated with early

intervention, such as the provision of developmental disabilities services, and

nurturing, stable, and protective caregiving. (Ex. 1 at ~17 [Aff. of Dr. Natalie

Brown].) However, the risk of secondary disabilities associated with FASD

increases in the absence of a diagnosis early in childhood. (Jd.) Diagnosis of

F ASD is typically conducted in children prior to the onset of puberty, which can

alter facial structures and obscure any abnormalities that previously existed. (Jd.)

However, most children afflicted with FASD (such as those with Partial FAS or

ARND) do not display any external manifestation of their FASD condition, nor are

they intellectually disabled, as discussed above. (ld.) As a result, many

individuals "slip through the cracks" and are never diagnosed with FASD;

consequently, they never receive professional intervention that could ameliorate

their social and adaptive deficits. (Jd.) As an undiagnosed youth with FASD

grows older, adults are increasingly likely to attribute the youth's poor judgment,

23

impulse control, and decision-making to willful misconduct, rather than to the

cognitive impairments of F ASD. (1d.) Diagnosis of FASD in individuals over the

age of eighteen becomes increasingly difficult, largely due to the absence or

destruction of educational and medical records that chronicled childhood deficits.

(ld.)

2. Fetal Alcohol Spectrum Disorder Was Widely Recognized by the

Medical and Legal Communities at the Time of Harris's Trial

At the time of Harris's capital trial, psychologists and medical doctors were

qualified to diagnose the central nervous system damage reSUlting from F ASD as

"consistent with FASD". (Ex. 1 at ,-r18 [Aff. of Dr. Natalie Brown].) By the time

of Harris's trial, FASD was well-recognized in the medical and psychological

community. (ld. at ,-r30.) A sampling of the research and available data includes

that

• In 1973, F AS was first recognized in the United States by researchers at

the University of Washington. Several articles about FAS were

published in the prestigious medical journal Lancet.

• In 1977, the National Institute of Alcohol Abuse and Alcoholism

("NIAAA") issued an advisory that six or more drinks per day put a

pregnant woman at risk of producing a child with birth defects. Later

research would determine that much less exposure also could cause

F ASD conditions.

• In 1978, F AS was an integral part of a specially commissioned report to

the U.S. Congress-the Third Special Report to Congress on Alcohol and

Health: Fetal Alcohol Syndrome-which was published by the

Department of Health and Human Services ("HHS") and the NIAAA.

After more than 250 published case reports, it was clear by this time that

F AS was one of several identifiable disorders associated with maternal

alcohol abuse. The term "Fetal Alcohol Effects" (or "F AE") was coined

to classify F ASD conditions without the full array of facial abnormalities

associated with FAS. (F AE now is an outdated term, having been

replaced in 1996 with the term "Alcohol Related Neurodevelopmental

Disorder" (or "ARND").)

24

• By 1979, over 600 cases of FAS had been reported worldwide. In the

book Fetal Alcohol Syndrome and Fetal Alcohol Effects, Dr. Ernest Abel

reported cases of FAS in articles from Australia, Belgium, Brazil,

Canada, Chile, Czechoslovakia, France, Germany, Hungary, Ireland,

Italy, South Africa, Spain, Sweden, Switzerland, and the United States.

• By 1980, the Research Society on Alcoholism issued the first diagnostic

guidelines for FAS, which involved three diagnostic criteria in the

context of prenatal alcohol exposure: "A pattern of characteristic facial

features, pre-postnatal deficit in height and weight, and central nervous

system damage."

• By 1981, HHS and NIAAA provided more information on FAS in the

Fourth Special Report to Congress on Alcohol and Health: Fetal Alcohol

Syndrome. In this same year, the U.S. Surgeon General issued a national

health advisory recommending that pregnant women or women

considering getting pregnant should abstain from using alcohol because

of possible harm to the unborn child. The Surgeon General noted

adverse effects "with only 1 ounce/day of absolute alcohol or 2 drinks

and risk ofFAS in children of heavy drinkers."

• In 1982, information on FAS appeared in the fourteenth edition of the

Merck Manual. Therein, the Merck Manual noted that "the most serious

consequence [of drinking alcohol during pregnancy] is mental

retardati on."

• In 1983, the Fifth Special Report to Congress on Alcohol and Health:

Fetal Alcohol Syndrome was issued and contained more information

about FAS.

• In 1984, an updated edition of Dr. Ernest Abel's treatise, Fetal Alcohol

Syndrome and Fetal Alcohol Effects, became one of the first medical

textbooks to summarize the mechanisms and laboratory research on the

effects of alcohol in laboratory animals and selected cases.

• In 1985, the first non-medical book on FAS-A Poison Stronger Than

Love by Anastasia Shkilnyk-further brought the condition to the

attention of the lay public.

• In 1987, more infonnation on FAS was published in the Sixth Special

Report to Congress on Alcohol and Health: Fetal Alcohol Syndrome.

• In 1988, the Alcoholic Beverage Labeling Act, PL 100-690, was passed

into law. The law mandated a warning label on every alcoholic beverage

container sold in the United States, which stated: "According to the

Surgeon General, women should not drink alcoholic beverages during

25

pregnancy because of the risk of birth defects." This law was widely

publicized in the media around the time of its passage.

• In 1989, The Broken Cord by Michael Dorris was published. This was

the first nationally distributed book on FAS and its impact on a family.

Dr. Dorris cited 165 articles and books and three videos that addressed

the dangers of drinking during pregnancy. The book became very

popular and is still referred to today as a "classic" in FASD literature in

terms of describing the long-term behavioral and developmental effects

of prenatal alcohol exposure.

• In 1990, Congress received more information on F AS in the Seventh

Special Report to Congress on Alcohol and Health: Fetal Alcohol

Syndrome.

• In 1992, the sixteenth edition of the Merck Manual included F AS, noting

that the condition was "the leading known cause of mental retardation."

The Merck Manual also noted the "severe behavioral effects," "varying

degrees of mental retardation," and "abnormal neurobehavioral

development" associated with the condition.

• In 1993, HHSINIAAA published the Eighth Special Report to Congress

on Alcohol and Health: Fetal Alcohol Syndrome.

• In 1995, Fetal Alcohol Syndrome: Diagnosis, Epidemiology, Prevention

and Treatment, edited by Kathleen Stratton and her colleagues, was

published. This Institute of Medicine ("10M") textbook consolidated the

research and practical knowledge on F AS available in the United States

at the time and provided a uniform basis for diagnosis.

• In 1995, the seventeenth edition of the Merck Manual was published.

Among other things, the Merck Manual noted the behavioral effects of

FAS (e.g., "varying degrees of mental retardation and abnormal

neurobehavioral development").

• In 1996, Alcohol, Pregnancy, and the Developing Child, edited by Hans-

Ludwig Spohr and Hans-Christoph Steinhausen, was published. This

was the European counterpart to the Stratton publication from 1995.

• In 1996, there were two groundbreaking publications in the United

States. The first of these, a publication by the 10M, formalized FASD

diagnosis by publishing diagnostic criteria for five conditions under the

FASD umbrella: FAS with confirmed prenatal exposure, FAS without

confinned prenatal exposure, Partial FAS, ARND, and Alcohol Related

Birth Defects. (The lattermost condition focused solely on damage to

physical structures outside the central nervous system, such as organs,

limbs, and skeletal structure.) With this 10M publication, older

26

terminology (e.g., Fetal Alcohol Effects, encephalopathy) began to be

replaced with newer terms, such as Partial F AS and ARND. Eventually,

the umbrella term "Fetal Alcohol Spectrum Disorders" was promulgated

as an inclusive term for all five 10M diagnostic categories.

• Also in 1996, the Centers for Disease Control and Prevention published

the results of a large research study on secondary disabilities associated

with FASD. The study, led by Dr. Ann Streissguth at the University of

Washington, focused on the developmental trajectory of individuals with

F ASD. Adverse developmental outcomes (i.e., adaptive problems) were

described as "secondary disabilities." Some of the most surprising

findings were that individuals with F ASD were at a high risk to commit

crimes, engage in substance abuse, and have mental health histories that

included inappropriate sexual behaviors. Adults with F ASD were at an

extremely high risk of having employment problems and difficulty living

independently. The authors of the study concluded that secondary

disabilities arose in the context of environmental adversity and lack of

protective factors.

• In 1997, Fetal Alcohol Syndrome: A Guide for Families and

Communities by Ann Streissguth was published by HHS and NlAAA.

This book contained a developmental view of FASD and referenced the

secondary disabilities study that had just been published. On page 241 of

that work, Dr. Streissguth wrote that, "[a]s of 1997, several authors have

described FASIF AE from a criminal justice perspective (see Barnett,

1997; Dagher-Margosian, 1997; Fehr, 1995; LaDue & Dunne, 1997; arid

Novick, 1997)."

• In 1997, HHSINIAAA published the Ninth Special Report to Congress

on Alcohol and Health: Fetal Alcohol Syndrome.

• In 2000, HHSINIAAA published the Tenth Special Report to Congress

on Alcohol and Health: Fetal Alcohol Syndrome.

• In 2001, Craig Lesley's Storm Riders was published. This commercially

successful book focuses on Lesley's adopted son who suffers from FAS

and the condition's effects.

• In 2004, the Centers for Disease Control published a detailed diagnostic

manual for FASD that quantified diagnosis and resolved some of the

ambiguities from the 1996 10M publication.

Furthermore, F ASD was also widely used as mitigating evidence at the time

of Harris's trial. Multiple authors had written about the application ofFASD to the

criminal justice system. (Ex. 1 at ~30 [Aff. of Dr. Natalie Brown].) Numerous

27

cases across the country had already presented FASD as a relevant, mitigating

factor at the punishment stage. (Id. at ~31 (citing twenty-three cases that presented

FASD as mitigating prior to Harris's trial).) Evidence that Harris suffers from

FASD could and should have been presented to the jury.

3. Before Trial, Counsel Possessed Evidence that Harris Suffered from

FASD

A significant body of evidence was available to trial counsel that indicated

Harris was afflicted with F ASD. Trial counsel overlooked these clear signs and

failed to pursue the necessary medical investigation and consultation that would

have revealed Harris suffers from FASD. See Wiggins, 539 U.S. at 522-23.

During the defense presentation at the punishment phase of Harris's trial,

counsel elicited testimony from Harris's mother, Pamela Maddox, that she drank

alcohol, smoked cigarettes, and smoked marijuana during the first six weeks of her

pregnancy with Harris. (64 RR at 222-24.) Trial counsel was in possession of this

information prior to Harris's trial. Defense mitigation investigator Brendan Ross

conducted an interview with Ms. Maddox in November 2011 during which Ms.

Maddox admitted to consuming alcohol during the period immediately prior to her

discovery that she was pregnant with Harris.

Post-conviction investigation has revealed that, at minimum, Ms. Maddox

drank several glasses of wine on the weekends during the first six weeks of her

pregnancy with Harris. (Ex. 11 at ~7 [Aff. of Pamela Maddox].) Ms. Maddox also

confirmed that she smoked marijuana and cigarettes during this time period. (Id.)

Ms. Maddox was unaware that she was pregnant until she went to the hospital with

pneumonia-like symptoms, where she discovered that she was with child. (Id. at

~6.) As she testified at trial, she stated that she stopped drinking once she learned

that she was pregnant. (Id. at ~7.)

28

While pretrial confinuation of prenatal exposure to alcohol alone should

have triggered further investigation into FASD, trial counsel was in possession of

additional infonnation relevant to the cognitive deficits and secondary disabilities

consistent with FASD that further indicated the need to consult an expert in the

field ofF ASD.

While Harris was born at full-term and was a nonnal birth weight, he was

"severely depressed" immediately after he was delivered by cesarean section. (Ex.

1 at ~21 [Aff. of Dr. Natalie Brown].) Harris's Apgar score was initially three and

only increased to eight after five minutes of treatment. 4 (Id.) Pregnancy-induced

hypertension was diagnosed as the etiology behind Harris's neonate distress. Such

hypertension can be caused by prenatal alcohol exposure. (Id.)

Additionally, Harris's family members and school records chronicled his

childhood struggles with two neurodevelopmental disorders, social skill deficits,

and behavioral problems, all of which stemmed from executive functioning

problems. (Ex. 1 at ~~22-23 [Aff. of Dr. Natalie Brown].) Harris was diagnosed

around the age of seven with ADHD, and a 1991 psychological evaluation resulted

in a diagnosis of dysthymia. (Id. at ~~23, 27.) School records also indicated that

Harris struggled with learning disabilities. (ld. at ~~22-23.) A 1994 evaluation

resulted in diagnoses of dysthymia, ADHD, and "developmental problems in

Arithmetic, Expressive Writing, and Reading." (Id. at ~23.) Testing in 2000

indicated concrete thinking, inadequate coping defenses, anxiety, and interpersonal

4 Apgar is a scoring method that assesses the health of newborns

immediately after birth. The score is compiled from adding individual scores for

the infant's respiratory effort, heart rate, skin color, response to a catheter in the

nostril, and muscle tone. Scores for these factors range from zero to two points,

and the scores are summed. Thus, the highest possible Apgar score is ten. A

newborn with a score between zero and three needs immediate resuscitation. (Ex.

1 at ~21, n.2 [Aff. of Dr. Natalie Brown].)

29

skill deficits. (Jd. at ~22.) A 2003 psychological evaluation documented diagnoses

of depression, anxiety, and ADHD, as well as a behavioral history of numerous

runaway episodes. (Jd. at ~23.) Harris's documented struggles in school constitute

examples of deficits in executive function, mood regulation, social skills, and

adaptive coping. (Jd. at ~~22-23.)

Trial counsel elicited testimony from Harris's mother, stepfather, and

younger brother. Each witness described Harris's diagnosis with ADHD, and his

intermittent treatment with Ritalin. Moreover, each of the three witnesses

described Harris's learning disabilities, his depression, and his pattern of running

away from home.

4. This Evidence Establishes That Harris Meets Diagnostic Criteria for

Fetal Alcohol Spectrum Disorder

A diagnosis of FASD requires abnormalities to the central nervous system in

the context of confirmed prenatal alcohol exposure. (Ex. 1 at ~40 [Aff. of Dr.

Natalie Brown].) The more specific diagnosis of ARND does not require the

observation of facial abnormalities. (Id.) Harris possesses qualifying central

nervous system abnormalities which, coupled with his confirmed prenatal exposure

to alcohol, means that he meets diagnostic criteria for ARND, one of the conditions

under the FASD umbrella. (Jd. at ,-r29.)

Trial counsel retained Dr. Antoinette McGarrahan to conduct

neuropsychological testing on Harris. (Ex. 1 at ~25 [Aff. of Dr. Natalie Brown].)5

A review of this testing, which occurred in November 2011, indicates that Harris

has significant deficits in four major cognitive domains: (1) academic

5 At the request of post-conviction counsel, Dr. James Underhill, a licensed

neuropsychologist, reviewed Dr. McGarrahan's raw testing data. (Ex. 6 at ~10

[Aff. of Dr. James Underhill].) Dr. Underhill compiled a list of Harris's scores on

the tests, as well as scores for any subscales within the testing measures. (Jd. at

,-r12.) This list of scores was provided to Dr. Brown for review.

30

achievement; (2) executive functioning; (3) visual spatial integration; and (4)

auditory and visual memory. (Jd.) Harris's testing revealed a WAIS-IV IQ score

of 84, placing him in the low average range. (Id.) Although this score does not

fall into the intellectually deficient range, there were significant discrepancies

among the four WAIS-IV indices, suggesting the possibility of brain damage

consistent with FASD. (Jd.) Harris displayed deficient ability in all academic

areas, and, despite completing the tenth grade, his academic skills ranged from

fifth to seventh grade. (Id.) Harris's results on a visual-spatial integration test

(Hooper Visual Orientation Test) fell more than 1 standard deviation below the

mean. (Jd.) Scores on tests of auditory and visual memory and learning (Wechsler

Memory Scale-4, California Verbal Learning Test, Rey Complex Figure Test) fell

1 to 2.5 standard deviations below the mean. (Id.) Several of Harris's scores on

tests of executive function (Wisconsin Card Sorting Test, Boston Naming Test) fell

1 to 3 standard deviations below the mean. (Id.) Overall, these deficits provide

convergent evidence that is highly suggestive of frontal lobe brain damage, with

some damage in the temporal and parietal lobes. (Jd.) These neuropsychological

deficits mirror deficits observed in individuals with F ASD, and qualify as a central

nervous system abnormality required for a diagnosis ofFASD. (Id. at ,-r40.)

Harris was also diagnosed with two neurodevelopmental disorders that are

correlated with individuals afflicted with FASD, a learning disorder (especially in

mathematics) and ADHD. (Ex. 1 at ,-r35 [Aff. of Dr. Natalie Brown].)

Neurodevelopmental disorders typically stem from brain damage. (Id.) Harris's

birth records provide additional support that he was likely born with brain damage,

as they indicate Harris was in "severe" distress at birth, a complication that, like

developmental disabilities and learning disorders, is associated with F ASD. (Id.)

Screening questionnaires (Fetal Alcohol Behavior Scale) were administered

to three of Harris's family members during post-conviction investigation. (Ex. 1 at

31

~37 [Aff. of Dr. Natalie Brown].) Each response contained scores that placed

Harris's behavior in the FASD range. (Jd.)

Finally, Harris's mother Pamela Maddox confirmed in pretrial and post-

conviction investigation that she consumed alcohol during at least the first six

weeks of her pregnancy with Harris. (See 64 RR at 222-24; Ex. 11 at ~7 [Aff. of

Pamela Maddox].) Given Harris's confirmed prenatal exposure to alcohol, his

deficits in four discrete cognitive domains revealed by neuropsychological testing,

and his lifelong neurodevelopmental disorders (ADHD and learning disorder), it is

clear that Harris meets the diagnostic criteria for ARND, a condition on the

spectrum ofFASD. 6

5. Trial Counsel's Failure to Develop and Present Evidence Harris

Suffered from FASD Constitutes Deficient Performance That

Prejudiced Harris

As discussed above, prior to Harris's capital trial defense counsel was in

possession of numerous pieces of evidence that should have led to an investigation

into whether Harris was afflicted with FASD. First and foremost, counsel knew

that Harris's mother consumed alcohol during the first six weeks of her pregnancy

because Ms. Maddox admitted as much to Brendan Ross, defense counsel's

mitigation investigator. Moreover, trial counsel affirmatively elicited testimony to

this effect from Ms. Maddox during the punishment phase of Harris's trial,

indicating that they were both aware of this information and knew it to be relevant.

6 Examination of a childhood photograph of Roderick Harris indicates

possible facial dysmorphology consistent with FASD. Consultation with a medical

doctor with expertise in FASD could likely result in a diagnosis of FAS or Partial

FAS. Regardless of the specific condition (F AS, Partial FAS, or ARND) , all

FASD conditions involve similar degrees of brain damage and functional

impairment. Thus, the specific diagnostic condition is forensically irrelevant. (Ex.

1 at ~40 [Aff. of Dr. Natalie Brown].) Regardless, Harris intends to undergo

further medical testing and will supplement this application with any updated

FASD information.

32

(64 RR at 222-24.) The fact that trial counsel had maternal confirmation that

Harris was exposed to alcohol in utero should have prompted a consultation with a

psychologist or medical doctor with expertise in FASD.7

In addition to Harris's confirmed prenatal exposure to alcohol, trial counsel

overlooked several clear and consistent "red flags" that Harris suffered from

serious, chronic cognitive difficulties and associated adaptive dysfunction. From

birth, Harris's records indicate a likelihood that he suffered from brain damage.

(Ex. 1 at ~35 [Aff. of Dr. Natalie Brown].) Moreover, Harris's school records

indicate a long history with learning disorders, ADHD, depressed mood,

dysthymia, and suicidal ideations. (Id. at ~~22-23.) Trial counsel elicited

testimony about these factors from Harris's mother, stepfather, and younger

brother during the punishment phase as well. (64 RR at 215-293; 65 RR at 29-62,

70-87.) This information should have operated as a clear warning sign to trial

counsel that Harris had considerable problems with cognitive functioning, which

should have prompted further investigation into the etiology of these

complications.

In light of trial counsel's confirmation of Harris's prenatal exposure to

alcohol, trial counsel's failure to consult a psychologist or medical doctor with

expertise in FASD is a glaring omission. Had trial counsel sought to explain the

underlying cause of the troubling aspects of Harris's cognitive and behavioral

impainnents, such an investigation would have led to consultation with an expert

in the area of FASD who could have testified that Harris meets the diagnostic

criteria for ARND, one of the specific conditions ofFASD. (Ex. 1 at ~39 [Aff. of

Dr. Natalie Brown].)

7 According to Dr. Brown, it is common practice for trial counsel to hire an

F ASD specialist whenever prenatal alcohol exposure is merely suspected. (Ex. 1

at ~38 [Aff. of Dr. Natalie Brown].)

33

A diagnosis of ARND would have proven to be powerful mitigating

evidence for a jury to hear. Individuals with ARND are, through no fault of their

own, born with serious cognitive impairments. These impairments include deficits

in a broad array of neurocognitive functions, such as attention, learning, logical

thinking, impulse inhibition, and self-regulation, which are certainly relevant to the

mitigating circumstances special issue posed to capital juries in Texas. (See Ex.

lat ~l4 [Aff. of Dr. Natalie Brown].) Moreover, individuals with FASD suffer

"secondary disabilities" that inhibit their ability to have successful social

interactions and integration, leading to higher than average rates of criminal

infractions and incarceration. (ld. at ~l6.)

Thus, had trial counsel presented evidence that Harris suffers from ARND, a

condition ofFASD, there is a reasonable probability that the jury's sentence would

have been affected. See Wiggins, 539 U.S. at 534-35; Strickland, 466 U.S. at 694-

95. As such, Harris's death sentence should be reversed and he should be granted

a new punishment phase trial.

B. Trial Counsel Failed to Uncover and Present Information That Harris

Was Exposed to Toxic Levels of Lead as a Child

In addition to fetal alcohol exposure, Harris's cognitive and childhood

development were likely affected by his exposure, both in utero and during

infancy, to toxic levels of lead. For fifty years, a lead smelting facility operated on

a lot at the comer of Westmoreland Road and Singleton Boulevard in West Dallas.

Roderick Harris's mother, Pamela Maddox, grew up near this facility, first in the

housing projects on Delhi Street, and later in a house located at 3544 Nomas

Street, less than half a mile from the smelter. Seventeen-year-old Pamela was still

residing at the Nomas Street house when she gave birth to Roderick Harris in 1984.

Harris spent the first several years of his life on Nomas Street, and spent most of

the first decade of his life in a fourteen-square-mile area of West Dallas that

34

eventually was declared a Superfund site due to lead contamination from the

smelting facility.

Children are highly susceptible to lead poisoning, and the toxic effects of

exposure can include damage to the central nervous system, which can lead to low

IQ scores and deficits in cognitive function and academic skills. Exposure can also

cause behavioral problems, including ADHD. Trial counsel failed to uncover and

present evidence that Harris was exposed to high levels of lead during his early

childhood, which exposure provides an explanation for Harris's cognitive,

adaptive, and behavioral deficits.

1. Toxicological Significance of Exposure to Lead

The toxic effects of exposure to lead have been recognized for more than

two thousand years. (Ex. 2 at ~8 [Aff. of Dr. Thomas Dydek].) Ingestion of lead

can have many adverse health effects and can negatively affect several organ

systems in the human body, including the gastrointestinal, immune, and

reproductive systems, as well as the central nervous system. (Id.)

Children are more at risk of suffering the negative effects of lead exposure

than are adults. (Ex. 2 at ~8 [Aff. of Dr. Thomas Dydek].) This is both because

children are more likely to ingest more lead than adults and because the effects of

lead ingestion are more pronounced in children. (Jd. at ~6.) However, even before

birth, fetuses in utero can absorb lead from the mother. (Id. at ~7.) Absorbed lead

accumulates in the bones of adults, and can re-enter the bloodstream through a

process known as "bone resorption," which occurs during pregnancy. (Id.)

One of the primary routes of exposure to lead is through the ingestion of

contaminated dirt, soil, and household dust. (Ex. 2 at ~6 [Aff. of Dr. Thomas

Dydek].) Because children spend more time on the ground (for example, while

playing or crawling), they are more likely to ingest or inhale lead particulates. (Id.)

Similarly, children have a habit of ingesting dirt, either intentionally or by way of

35

placing their dirty hands and toys in their mouths. (Id.) Once a child ingests

contaminated material, the absorption of lead into the blood is five to ten times

greater than in adults. (Id.) Furthermore, children are more likely to have

nutritional deficits in certain minerals, such as iron or calcium, which facilitates

greater absorption of lead. (Id.) Finally, the central nervous systems of young

children are not fully developed. (Id.) Thus, it is more likely that lead in the

bloodstream of children will reach, and negatively affect, sensitive brain tissues.

(fd.) Adults who were exposed to high levels of lead as children exhibit damage to

both grey and white matter in the brain. (fd. at -09.) Lead exposure is associated

with damage to the frontal lobes, parietal lobes, basal ganglia, cerebellar

hemisphere, and cerebellar vermix. (fd.) Aside from brain damage, the effects of

lead exposure on the central nervous system include low IQ and deficits in

cognitive functioning and academic skills. (fd. at -08.) Lead exposure has also

been associated with higher incidences of ADHD. (Id.)

2. History of the RSR Corporation Lead Smelting Facility

In the early 1930s, a secondary lead smelting facility opened and began

operations west of downtown Dallas. (Ex. 21 at 5 [Agency for Toxic Substances

and Disease Registry ("ATSDR") Public Health Assessment].)8 Secondary

smelting operations recover lead from pre-existing sources, such as batteries,

cables, pipes, and other metals. (Ex. 22 at 5 [EPA Superfund Record of

Decision].)9 The smelting facility in west Dallas was primarily tasked with the

recovery of lead from recycled automobile batteries. (fd.)

8 Ex. 21 is publicly available at the following website:

http://www.atsdr.cdc.gov/HAC/phalPHA.asp?docid=134&pg=0 (last visited June

8,2014).

9 Ex. 22 is publicly available at the following website: http://www.epa.gov/

superfund/sites/rods/fulltext/r0695 095 .pdf (last visited June 8, 2014).

36

Although the facility was originally located outside the Dallas city limits, the

surrounding area was annexed by the city in the 1950s. (Ex. 21 at 6 [ATSDR

Public Health Assessment].) In the years that followed, residences, schools, and a

major housing project were constructed nearby. (Jd.) Despite this metropolitan

growth, air emissions from the smelter continued without control until 1968. (ld.)

In 1971, the smelter was purchased by the RSR Corporation ("RSR"). (ld.) Over

the next thirteen years, RSR was ordered to upgrade its emissions control devices

due to enforcement actions and lawsuits brought by the City of Dallas, the State of

Texas, and the Texas Air Control Board. (ld. at 7.) A 1983 lawsuit alleged

damages from the air emissions of lead, and RSR was ordered to remove and

replace contaminated soil, implement a comprehensive plan for remediation, and

screen children for lead blood levels. (ld.) In February 1984, RSR ceased

operation of the smelter and sold the facility to the Murmur Corporation. (ld.)

Later that year, the City of Dallas denied Murmur's application for an operating

permit. Remedial work, consisting of the removal of contaminated soils, began in

1984 and continued into 1985. (Jd. at 7.) A second removal effort was initiated in

1991 by the EPA. (Jd.) In 1993, the EPA proposed listing the RSR site and

surrounding area on the National Priorities List of Superfund sites. (Jd. at 8.)

There were several sources for the contamination that plagued the area

surrounding the RSR site. (Ex. 21 at 5 [ATSDR Public Health Assessment].) Air

emissions deposited lead in the residential properties surrounding the smelter,

primarily in the areas north and northeast of the site. (Jd.) Contamination also

occurred due to the use of battery chips (plastic pieces of battery casings generated

from the smelting activities) as residential fill and paving material. (Jd.) Slag, a

toxic byproduct of the smelting operation, was also used as residential fill in the

area and deposited in nearby landfills. (Jd.)

37

3. Harris Likely Was Exposed to Lead as a Young Child and May Have

Suffered Adverse Effects Due to This Exposure

Harris spent much of the first decade of his life within half a mile of the

epicenter of a Superfund site which exposed him to elevated levels of lead as a

child. Hmvever, Harris's exposure to lead likely began before he was even born.

(See Ex. 2 at ,-r,-r7, 15 [Aff. of Dr. Thomas Dydek].)

Roderick Harris's maternal grandmother, Shirley Cook, grew up at 3541

Pueblo Street in West Dallas. (Ex. 8 at ,-r7 [Aff. of Shirley Cook].) Ms. Cook

remembers smelling the RSR plant's emissions in the air. (Id. at 'Il8.) The

emissions smelled like "tar or sulfur, something bad like that." (Id.) Physical

particles from the emissions landed in the neighborhood and were visible on the

windshields and hoods of cars. (Id.) Ms. Cook saw black plastic chips in the

driveways of houses in the Pueblo Street neighborhood where she grew up. (Id. at

,-rIO.)

Ms. Cook gave birth to Harris's mother, Pamela Maddox, in 1967. At the

time of Ms. Maddox's birth, Ms. Cook was living in the housing projects in West

Dallas. (Ex. 8 at,-r7 [Aff. of Shirley Cook].) In the early 1970s, Ms. Cook moved

her family, including Ms. Maddox, to a house located at 3544 Nomas Street in

West Dallas. (Id.) This house on Nomas Street was less than half a mile from the

RSR Corporation lead smelting facility located on the southeast comer of

Westmoreland Road and Singleton Boulevard. (Ex. 23 [Google Maps].) Ms. Cook

found black plastic chips when digging in the yard of this house. (Ex. 8 at ,-rIO

[Aff. of Shirley Cook].)

The smelter was fully operational during Ms. Maddox's childhood when she

would have been most at risk of ingesting toxic levels of lead. (See Ex. 2 at 'Il,-r6,

12 [Aff. of Dr. Thomas Dydek].) Ms. Cook reports that all of her children,

including Ms. Maddox, played in the dirt at the house on Nomas Street. (Ex. 8 at

38

~13 [Aff. of Shirley Cook].) It is likely that Ms. Maddox accumulated a significant

amount of lead in her bones that could have been transferred in utero to Harris.

(See Ex. 2 at ~~7, 15 [Aff. of Dr. Thomas Dydek].)

Ms. Maddox lived with her mother at 3544 Nomas Street when she became

pregnant with Harris. (Ex. 11 at ~11 [Aff. of Pamela Maddox].) She lived at that

house for the duration of her pregnancy, and continued to live at the house for

about a year after Harris's birth on June 12, 1984. (Id.) From there, Ms. Maddox

and Harris moved a few houses down Nomas Street to live with Ms. Maddox's

sister Sherry. (Id.) Ms. Maddox and Harris lived in public housing in Oak Cliff

for a period of time, during which Harris would visit Ms. Cook's house on Nomas

Street several times per week. (Id. at ~12.) When Harris was around four years

old, he and his mother moved into Ms. Cook's house on Nomas Street where they

lived for about four years. (Id.)

As a young child, Harris frequently played in the yard of his grandmother's

house (later his mother's house) at 3544 Nomas Street, and at the home of Ms.

Cook's father at 3541 Pueblo Street. (Ex. 11 at ~12 [Aff. of Pamela Maddox]; Ex.

8 at ~12 [Aff. of Shirley Cook].) Ms. Cook and Ms. Maddox both recall that

Harris played in the dirt and put dirt and dirty toys in his mouth, as many children

are prone to do. (Ex. 11 at ~13 [Aff. of Pamela Maddox]; Ex. 8 at ~13 [Aff. of

Shirley Cook].) Soils within a half mile radius of the smelter, particularly to the

northeast, were found to have very high levels of lead due to air emissions from the

RSR Corporation smelter. (Ex. 21 at 6-7,52 [ATSDR Public Health Assessment].)

Harris and his mother caught crawdads in the ditch near their house on Nomas

Street, which they would later consume. (Ex. 12 at ~12 [Aff. of Ramon Maddox,

Sr.].)

Harris was also taken to play in nearby parks, including the park at Amelia

Earhart Leaming Center, where Harris later attended school for two years. (Ex. 11

39

at ~13 [Aff. of Pamela Maddox]; Ex. 12 at ~14 [Aff. of Ramon Maddox, Sr.].)

Amelia Earhart Learning Center was one of the sites where the remedial removal

of soil occurred in the early 1990s. (See Ex. 24 [Dallas News Photos].)lo Harris

then attended Priscilla Tyler Elementary School in West Dallas. (Ex. 12 at ~14

[Aff. of Ramon Maddox, Sr.].) Harris and his family moved away from the house

at 3544 Nomas Street in 1992. (Id. at ~10.)

Throughout his life, and from a young age, Harris exhibited medical,

psychological, and neurodevelopmental conditions that are associated and

correlated with childhood exposure to lead. (Ex. 2 at ~18 [Aff. of Dr. Thomas

Dydek].) Harris was diagnosed with ADHD at the age of seven, and ADHD has

been associated with exposure to lead. (Id. at ~8.) Harris struggled with learning

disabilities that plagued him during his time in school and required him to enroll in

special education classes until he dropped out of high school in the eleventh grade.

The central nervous system of children is particularly sensitive to the effects of

lead, and exposure can cause declines in academic achievement and learning

disabilities. (Id.) Lead exposure as a child can also cause damage to the brain,

particularly in the frontal and parietal lobes. (Id. at ~9.) Neuropsychological

testing of Harris revealed damage to these areas of his brain. (Ex. 1 at ~25 [Aff. of

Dr. Natalie Brown].)

4. Conclusion

Capital trial counsel has a duty to conduct an investigation to uncover

mitigating evidence. In the context of mitigation, evidence that a defendant has

been disadvantaged is particularly important "because of the belief, long held by

Ex. 24 consists of Photos 13, 14, and 15 from a publicly-available photo

10

gallery found at http://www.dallasnews.com/news/photos/20121212-the-burden-

of-Iead-historic-photos-of-west-dallas-rsr-smelter-and-environmental-

contamination.ece?ssimg=820213#ssTop820217 (last visited June 8, 2014).

40

this society, that defendants who commit criminal acts that are attributable to a

disadvantaged background ... may be less culpable than defendants who have no

such excuse." Wiggins, 539 U.S. at 535 (citing Penry v. Lynaugh, 492 U.S. 302,

319 (1989)); see also Ex parte Gonzales, 204 S.W.3d at 399 (granting habeas relief

due to trial counsel's ineffective assistance for failing to present evidence that the

defendant suffered post-traumatic stress disorder due to childhood trauma). Here,

trial counsel neither discovered nor presented evidence that Harris was chronically

exposed to a highly toxic substance, lead, from before his birth through the early,

formative years of his life. Lead exposure is associated with a number of

cognitive, behavioral, intellectual, and neurodevelopmental problems, problems

which plagued Harris throughout his life. He faced disadvantages from a young

age partly because of where he was born. Evidence that Harris was exposed to

toxic amounts of lead would have been powerful mitigating evidence, and there is

a reasonable probability that the result of his punishment phase would have been

different had it been presented to the jury. See Strickland, 466 U.S. at 694.

C. Trial Counsel Failed to Retain and Present Testimony from Expert

Witnesses to Explain the Mitigating Impact of Harris's Life History

As discussed above, presenting lay witnesses to describe various facts about

a defendant's life will typically fall short of the complete mitigation presentation

necessary to explain to a jury the reasons a death sentence is not warranted. The

reason is two-fold. First, a single lay witness often will be unable by his or her

testimony alone to tell the entire story of a defendant in a cohesive manner. Even

close family members will not have witnessed every aspect of a defendant's life;

thus, a jury presented with lay witness testimony alone receives what amounts to

pieces of a puzzle, rather than a linear explanation of a life history. Second, having

lived through many of the events they are describing themselves, lay witnesses will

almost always lack both the perspective and the training to fully explain the

41

~~ -- -~---------------------------------------

significance of life events. Expert witness testimony is necessary to fit the pieces

of the defendant's life story together and explain for the jury the significance of the

resulting picture.

Just as evidence regarding the impacts of prenatal exposure to alcohol and

toxic levels of lead requires the testimony of specialized expert witnesses, so too

does the testimony of Harris's family members require interpretation and

explanation by qualified experts. Through the testimony of Harris's mother,

stepfather, brother, and cousin, the jury learned the following facts about Harris's

life:

• Harris's biological father was incarcerated for most of Harris's life.

• Harris's mother and stepfather frequently drank and smoked marijuana

during Harris's childhood.

• Harris received "whoopings" from his stepfather with belts or extension

cords.

• Harris got in trouble at school.

• At seven years old, Harris was diagnosed with ADHD, for which he was

prescribed Ritalin and placed into special education classes.

• Harris had a history of running away from home.

• As an early teenager, Harris was briefly involved in a youth street gang.

• Harris abused drugs, specifically marijuana and PCP.

• Harris was a loving father to his own children.

(64 RR at 215,256; 65 RR at 29, 88.) Without further explanation, these factual

statements resting on their own fail to communicate why a jury should find them

mitigating, either individually or taken as a whole. Indeed, several of the facts-

that Harris was involved in a gang, that Harris abused illegal drugs, and that Harris

frequently ran away from home-on their face appear to be aggravating rather than

mitigating facts.

Trial counsel's presentation of expert witnesses at Harris's punishment

phase did little to explain the importance of these facts or to offer the jury a way of

42

understanding Harris's life story as a whole. Dr. John Roache was presented as an

addictions expert to explain why drugs are addictive and how marijuana and PCP

affect the body. (65 RR at 119.) Dr. Gilda Kessner, a psychologist, was presented

to describe certain childhood risk factors for later delinquent or violent behavior-

factors that have been identified through Department of Justice research. (65 RR

at 152.) Both experts offered a mostly academic explanation of their topics, devoid

of application to Harris's specific life story. Neither expert met with Harris or

other witnesses, and both specifically denied being asked to render an opinion

about Harris himself. ll (65 RR at 141, 154, 162.)

Had trial counsel investigated further, however, and retained the assistance

of expert witnesses in fields relating to Harris's specific life narrative, they would

have been able to present the jury with a comprehensive and cohesive explanation

of Harris's life trajectory. Such testimony would have explained why so many of

the negative pieces of his life story were not Harris's fault, and why the path of his

life trajectory was both predictable and sadly common. Moreover, this testimony

would have turned what appeared to be many aggravating facts about Harris's life

story into significantly mitigating information.

1. Expert Testimony Available to be Presented

Several different types of expert testimony were available to fill this role,

either individually or in tandem. For example, counsel could have retained the

assistance of a social worker, such as Laura Sovine. Ms. Sovine is employed by

Travis County Health and Human Services where she supervises a team of social

workers who provide intensive support services for families. (Ex. 5 at,-rl [Aff. of

11 Trial counsel also presented the testimony of James Aiken and S.O.

Woods as experts regarding prison classification and whether there was a

probability Harris would commit acts of violence, as well as the testimony of Dr.

Charles Weaver, an eyewitness identification expert. (65 RR at 147, 170, 193.)

43

Laura Sovine].) In addition, she has experience working with both at-risk youth

and formerly incarcerated offenders. (Jd. at ~2.) She is an adjunct faculty member

at the University of Texas at Austin School of Social Work. (Jd. at ~3.) Ms.

Sovine would have been able to examine how Harris's early childhood

development influenced his behavior as a youth and adult.

Next, counsel could have retained an expert in the field of youth gangs, such

as Charles Rotramel, to evaluate whether Harris's involvement in a youth gang was

as scary and dangerous as the prosecution made it out to be. Mr. Rotramel is the

founder and executive director of Youth Advocates, a non-profit youth

development organization that provides assistance and support to young people

throughout the Houston area. (Ex. 4 at ~~1-2 [Aff. of Charles Rotramel].) Mr.

Rotramel has over thirty years of experience working directly with at-risk and

gang-related youth in the Houston area. (ld. at ~1.) His work has taken place both

inside the juvenile justice and criminal justice systems as well as on the streets and

in neighborhoods. (Id. at ~4.) He has spoken at universities, non-profit

organizations, and governmental agencies, and has testified before the Texas State

Senate and House on the subjects of gangs and gang violence. (Jd. at ~12.)

Further, counsel could have retained an expert to examine Harris's history of

behavioral issues in school, resulting discipline and suspensions, and subsequent

involvement in the juvenile justice system. For example, Dr. Courtney Robinson

has studied what has become known as the "school to prison pipeline." (Ex. 3 at

~,-r1-4 [Aff. of Dr. Courtney Robinson].) In addition to work experience dealing

with both educational institutions and the juvenile justice system, Dr. Robinson

holds a doctorate degree in cultural studies in education from the University of

Texas at Austin. (Jd. at ~,-rl, 3.) Her research has focused on the ways in which

African American students (especially males) are routinely separated from the

regular classroom for behavioral issues and directed toward the juvenile justice

44

system. (Id. at ~~2, 4.) She has specifically studied the histories of African

American males incarcerated in the Dallas area, finding common life events and

trajectories. (Jd. at ~2.)

2. Harris's Life History Explained 12

Testimony from expert witnesses like those described above would have

offered the jury a stunningly different and substantially more complete

understanding of the mitigating nature of· Roderick Harris's life history.

Specifically, the jury would have learned that, from his birth (and even before it),

13

Roderick was at a distinct disadvantage in life. Early negative impacts to his

childhood development left Roderick with several impairments to his mental health

and social functioning. Rather than address these impairments, however, his

family impeded what little treatment he received and attempted to use strict

discipline to solve problems. School officials similarly reacted to Roderick's

issues as behavioral problems and disciplinary issues. Instead of positively

intervening, this served to drive Roderick away from home and school, into the

street life of gangs, drugs, and crime. As opposed to a story of a deviant youth,

Roderick's life history shows a sadly common trajectory of a youth funneled into

the criminal justice system.

a. Early Setbacks and Impairments

As already mentioned, Roderick was exposed to alcohol during the early

stages of his mother's pregnancy and to toxic levels of lead in utero and during

infancy. These carried with them a significant risk of cognitive and developmental

12 The testimony of the expert witnesses cited within this claim comes not

only from the evidence presented at trial but also from the investigation done by

post-conviction counsel. These experts' affidavits are cited, as is appropriate, but,

for ease of readability, their analyses and opinions have not been set out in block

quotations despite being quoted directly and paraphrased.

13 For clarity of the narrative, Mr. Harris and his family member will be

referred to by their first names in this section.

45

---------------------------------------

impairments. See Parts A and B, ante. In addition, Roderick was born into a

family situation that contributed to further impairments in his emotional and

psychological development.

Roderick did not experience a nurturing and stable early childhood. Once

home from the hospital, Roderick's mother, Pamela, continued to act as the

seventeen-year-old girl she was, instead of providing stable parenting to Roderick.

Pamela would frequently leave Roderick in the care of her mother, Roderick's

paternal grandmother, or even neighbors living in the same West Dallas housing

projects. Even after Pamela moved out of her mother's home and married

Roderick's stepfather, she continued to drop off Roderick there several times a

week. Roderick was left with a rotating cast of caregivers. (Ex. 5 at ~17 [Aff. of

Laura Sovine]; Ex. 11 at ~8 [Aff. of Pamela Maddox]; Ex. 8 at ~16 [Aff. of Shirley

Cook].)

Roderick's biological father, Eric Propes, had a reputation for being a street

hustler-someone out to make a quick dollar. Starting in his teenage years, Eric

had a history of stealing from stores and breaking into houses. He went to prison

shortly after Roderick was born. Eric was never in Roderick's life for any

appreciable length of time, bouncing in and out of prison frequently. (Ex. 5 at ~18

[Aff. of Laura Sovine]; Ex. 10 at ~12 [Aff. of Michael Harris]; Ex. 15 at ~~10-18

[Aff. of Eric Propes].)

When Roderick was around three years old, his mother married Ramon

Maddox, Sr. In their first years of marriage, Ramon, Sr., and Pamela did not take

steps to settle the family but, instead, created further chaos and instability. Ramon,

Sr., joined Pamela in frequent partying. Ramon, Sr., himself had been raised by a

father who was a drug addict and who had spent time in prison, as well as by a

mother who was an alcoholic. Ramon, Sr., and Pamela often went out to smoke

marijuana and drink alcohol, leaving at home Roderick and, later, their other sons

46

to care for themselves at young ages. Roderick was left to care for himself and his

younger brothers in much the same way that Ramon, Sr., had been left by his own

parents. Sometimes Ramon, Sr., and Pamela would take the children with them to

parties, staying out until three or four 0' clock in the morning. It is not surprising

that, for Roderick's early childhood, both of his parents were unable to model good

parenting-parenting that they themselves had not received. (Ex. 5 at ~~20-21

[Aff. of Laura Sovine]; Ex. 13 at ~~5, 7 [Aff. of Ramon Maddox, Jr.]; Ex. 12 at

~~4, 17 [Aff. of Ramon Maddox, Sr.].)

Ramon, Sr., and Pamela had a physically abusive relationship reminiscent of

abusive behaviors they had witnessed in their own childhoods. Both would be

physically and verbally abusive to each other, particularly when they had been

drinking. Roderick witnessed these fights and became withdrawn and upset. In

addition, Roderick frequently received "whoopings" throughout his life from his

parents. (Ex. 5 at ~22 [Aff. of Laura Sovine]; Ex. 11 at ~18 [Aff. of Pamela

Maddox]; Ex. 13 at ~6 [Aff. of Ramon Maddox, Jr.].)

In addition, a number of Roderick's family members suffered from mental

illness. On Roderick's maternal side, these family members included Roderick's

mother. (Ex. 11 at ~43 [Aff. of Pamela Maddox].) Roderick's maternal great-

grandmother also suffered from mental health problems, with symptoms including

paranoid delusions, similar to Pamela's. (Ex. 8 at ~4 [Aff. of Shirley Cook].)

Several other family members of Roderick's appear to have mental health

problems, spanning several generations. (Ex. 8 at ~~5-6 [Aff. of Shirley Cook];

Ex. 11 at ~43 [Aff. of Pamela Maddox].) On Roderick's paternal side, his

biological father's family tree also has several generations with family members

who have mental illness, including schizophrenia and bipolar disorder. (Ex. 15 at

~3 [Aff. of Eric Propes]; Ex. 5 at ~14 [Aff. of Laura Sovine].)

47

According to Attachment Theory, the most important time in a child's life

for the brain to develop is between the ages of zero and three. During this time,

children either form a secure or an insecure (anxious) attachment. Parents who are

nurturing, close in proximity, and sensitive usually will raise a child with secure

attachments and, therefore, the appropriate hard-wiring of the frontal lobe-the

area of the brain responsible for executive functioning, decision-making, and

emotional regulation. Parents who are not sensitive tend to raise children with

insecure attachments. Children in this scenario have a much lowered capacity for

emotional regulation and impulse control, and they seek to control their

environment in unhealthy ways to have their needs met, needs such as care and

belonging. Children with insecure attachments raised in chaotic and stressful

environments will, without intervention, have significant impairments in behavior

and general social functioning. (Ex. 5 at ~16 [Aff. of Laura Sovine].)

In addition to a lack of stable and nurturing parental figures, the

neighborhoods Roderick grew up in were far from nurturing. Roderick's earliest

memory is of stepping on a rat when he was two years old in the West Dallas

housing projects where his family lived. His next memory is of seeing a naked

man running through the projects when Roderick was three; a man he later learned

was high on PCP. He recalls being picked on by bullies on his way home from

pre-kindergarten classes and of being chased by loose dogs. Bullying, grief, and

loss, abandonment by his father, a chaotic and scary environment-these were all

things which further served to undermine his healthy childhood development. (Ex.

5 at ,-r19 [Aff. of Laura Sovine].)

Roderick's brothers, Bradon and Ramon, Jr., were born shortly after Ramon,

Sr., and Pamela were man'ied. Roderick was four and five when they were born.

Rather than creating allies for him, though, their births drove a wedge that

separated him from the rest of the family. As his natural children, Ramon, Sr.,

48

favored Bradon and Ramon, Jr. Other family members could tell that Ramon, Sr.,

was more strict with Roderick about his behavior. Ramon, Sr., himself notes that

Roderick was bothered by the attention Ramon, Sr., would give to Bradon and

Ramon, Jr., and that he did things for them that made Roderick feel left out. (Ex. 5

at ~23 [Aff. of Laura Sovine]; Ex. 12 at ~19 [Aff. of Ramon Maddox, Sr.]; Ex. 11

at ~17 [Aff. of Pamela Maddox].)

Because Roderick formed insecure attachments, he was more likely to have

difficulty managing his emotions. When parents are non-responsive or insensitive

and children do not have their needs met, they often go through frequent negative

affect states with poor ability to control their emotions. As a result, from a very

early age, Roderick started acting out to get attention. At home, this took the form

of destructive actions-destroying items around the house or punching holes in a

waterbed. From other relatives, Roderick sought attention and care, acting funny

and trying to be the clown in the room. This behavior was partly brain based and

partly environmentally based-when they have no positive role models, it is

almost impossible for children to learn how to manage emotions such as sadness,

anger, and frustration without acting out. New patterns can be learned but serious

intervention is required. (Ex. 5 at ~~24-25 [Aff. of Laura Sovine]; Ex. 10 at ~6

[Aff. of Michael Harris]; Ex. 12 at ~~8-9 [Aff. of Ramon Maddox, Sr.].)

b. Misidentified as a Problem Child

At a young age, Roderick began to show the SIgns of cognitive and

developmental impairments that were likely results of the alcohol and lead

exposure in utero and lack of proper attachment development. Roderick was easily

distracted, had a hard time sitting still, and could not stay in one place long. (Ex.

12 at ~23 [Aff. of Ramon Maddox, Sr.]; Ex. 10 at ~8 [Aff. of Michael Harris].) He

began to wander away from the house without telling anyone. Family members

would find him wandering the street, sometimes riding a bus around the city and

49

sometimes entering empty buildings. When asked why he did this, Roderick did

not know. (Ex. 8 at ~~18-19 [Aff. of Shirley Cook].) Roderick did not have

patience, acted up, had a hard time listening to his parents, and could not

comprehend things when he became upset. (Ex. 5 at ~26 [Aff. of Laura Sovine];

Ex. 11 at ~15 [Aff. of Pamela Maddox]; Ex. 12 at ~9 [Aff. of Ramon Maddox, Sr.];

Ex. 8 at ~17 [Aff. of Shirley Cook].)

In addition, Roderick struggled in school, having a hard time understanding

new information. Ramon, Sr., noticed that Roderick simply memorized

information to get by. It seemed like Roderick knew the material, but with further

examination it became clear that Roderick did not actually understand the

information. (Ex. 5 at ~28 [Aff. of Laura Sovine]; Ex. 12 at ~25 [Aff. of Ramon

Maddox, Sr.]; Ex. 11 at ~19 [Aff. of Pamela Maddox].)

Yet these signs were misidentified by both Roderick's family and school

officials as behavioral issues and rule-breaking. Roderick's stepfather considered

sending Roderick to see a doctor because of his behaviors, but his mother did not

think there was a problem. And the family did not have enough money to afford a

doctor. So instead, Ramon, Sr., reacted by punishing Roderick for his behaviors,

often with whoopings. Even when he got a whooping for running off, Roderick

would not seem to understand why he would receive such punishments. (Ex. 5 at

~27 [Aff. of Laura Sovine]; Ex. 8 at ~~18-19 [Aff. of Shirley Cook].)

When Roderick began getting in trouble at school, he remembers his mother,

rather than providing guidance and parenting, telling the principal of the school

simply to "paddle" him if he misbehaved. Without proper intervention, Roderick

continued to act out. For example, around the age of six, Roderick brought razor

blades to school. For this he received what would be the first of many expulsions.

(Ex. 19 at 199 [Juvenile Records].) Based on his behavioral issues and poor

50

academic performance, Roderick was placed into special education programs. (Ex.

20 at 49 [Garland ISD Records]; Ex. 5 at ~29 [Aff. of Laura Sovine].)

This misidentification of Roderick as a "problem child" continued despite

evaluations by school officials and doctors that showed Roderick was struggling

with cognitive and psychological impairments. In 1991, Roderick, now seven

years old, was given a psychological evaluation by his school that resulted in a

diagnosis of dysthymia, a condition characterized by low energy levels, low self-

esteem, low capacity for pleasure in life, and sometimes suicidal ideation. (Ex. 20

at 49 [Garland ISD Records].) Around the same time, Roderick was also

diagnosed by his family physician as having ADHD.14 (Ex. 19 at 213 [Juvenile

Records]; Ex. 27 at 108 [Promise House Records]; Ex. 11 at ~20 [Aff. of Pamela

Maddox]; Ex. 5 at ~30 [Aff. of Laura Sovine].)

Instead of assisting Roderick with the necessary intervention, his diagnosis

of ADHD started a struggle between school and medical officials and his parents

that would last for the rest of Roderick's childhood. Although Roderick was

prescribed Ritalin for his ADHD, his parents did not like how it made Roderick act

like a zombie. Periodically, Roderick's stepfather made Roderick stop taking the

medication. Even when he was taking it, Roderick's mother would have him skip

doses. Then, when Roderick's behavior worsened, he would be referred by the

school or his parents to another evaluation or treatment program. They, in turn,

would re-prescribe Ritalin until his parents again took him off of it, thus repeating

the negative cycle. (Ex. 12 at ~~26-27 [Aff. of Ramon Maddox, Sr.]; Ex. 11 at

~~20-21 [Aff. of Pamela Maddox] Ex. 5 at ~31 [Aff. of Laura Sovine].)

14 As discussed, ante, many of the symptoms characteristic of ADHD mirror

the cognitive deficits and behavioral issues associated with FASD and can also be

attributed to lead exposure.

51

-----:

This cycle of on-again, off-again medication was particularly unfortunate

because the National Institute of Mental Health has concluded that medication is

the most effective treatment for ADHD symptoms of inattention and hyperactivity.

Further, behavioral therapy is the most effective treatment for impulse control

issues. Roderick exhibited all of these symptoms but was never offered behavioral

or any other kind of therapy, and his parents took him off the most effective

medication at a young age. (Ex. 5 at ~32 [Aff. of Laura Sovine].)

Roderick's parents focus blame for Roderick's behavioral Issues on the

schools he attended. They suggest that the schools did not sufficiently support his

special education needs and just wanted to solve the problem through prescription

drugs. As a result, his parents moved him from school to school whenever they did

not think the school was helping Roderick enough. Probably as a result of this

movement and Roderick's problems in school, family members report that

Roderick did not have many friends growing up. He mostly kept to himself, and

his closest friends were his cousins. (Ex. 5 at ~~34-35 [Aff. of Laura Sovine]; Ex.

12 at ~~18, 26-27 [Aff. of Ramon Maddox, Sr.]; Ex. 11 at ~~20, 35 [Aff. of Pamela

Maddox].)

Roderick's relationships, though, were compromised by his cognitive and

developmental impairments. His cousins remember that Roderick could only play

games or socialize for a brief time before he felt compelled to move on. Roderick

would start a basketball game or other sport with his cousins and then wander

away suddenly after only a short time. He similarly could not sit long enough to

watch a movie or television show. Roderick seemed easily distracted and

impulsive. He got upset when he did not understand what was going on around

him. He could not pay attention for long periods of time, struggled to follow

directions, and was not good at adapting to change. (Ex. 5 at ~35 [Aff. of Laura

52

Sovine]; Ex. 8 at ,-r20 [Aff. of Shirley Cook]; Ex. 11 at ,-r,-r23-24 [Aff. of Pamela

Maddox]; Ex. 17 at,-r4 [Aff. of Willie Propes].)

Evaluations of Roderick into his youth continued to show problems with

respect to both his mental health and intellectual development. In 1994, a

psychological evaluation confirmed diagnoses of dysthymia, ADHD, and

developmental problems in math, reading, and writing skills. (Ex. 20 at 49-50

[Garland ISD Records].) Another evaluation conducted in 1997 similarly found

diagnoses of dysthymic disorder, early onset, with anxious traits, as well as ADHD

and suicidal ideation. (Ex. 20 at 50 [Garland ISD Records]; Ex. 5 at ,-r36 [Aff. of

Laura Sovine].)

Roderick continued to struggle in school. He acted out and started fights.

He did this particularly when he was frustrated and did not understand the

schoolwork. He often felt left out and picked on. He hit his desk or threw his

papers. He also felt embarrassed due to his placement in special education classes

and being required to ride a special school bus while his peers walked to school

from their neighborhood. (Ex. 5 at ,-r38 [Aff. of Laura Sovine]; Ex. 11 at ,-r,-r26-28

[Aff. of Pamela Maddox].)

Often, children with insecure attachments operate in "survival mode" and

therefore are likely to respond to stress with a "fight or flight" mechanism in a

manner more extreme than most. Roderick's defensiveness was a function of his

assuming insults and feeling insecure about his learning disabilities, and, as a

consequence, he lashed out in order to protect himself or survive in rough areas.

(Ex. 5 at ,-r39 [Aff. of Laura Sovine].)

Despite his serious mental health and developmental issues, Roderick

continued to receive little or no support from the school system or his family.

School reports consistently documented the diagnoses of ADHD but did not offer

any behavior-modification plan or treatment other than medication. There is no

53

mention in any of Roderick's records of accommodations made for Roderick in the

classroom, nor counseling or behavior modification offered to help him figure out

how to work around his disorder and to learn. Roderick's parents continued to

subvert his treatment, taking him off Ritalin whenever they felt he seemed "dazed"

or slow to them. (Ex. 5 at ~37 [Aff. of Laura Sovine].)

Amidst this backdrop, Roderick began to struggle with depression and began

talking about his thoughts of suicide. He told his mother he wanted to jump off a

bridge. His brother remembers a time Roderick tried to hang himself off the stairs

with a belt. Another time he tried to cut himself. Other family members observed

him depressed and suicidal. In response, Roderick's parents took him to the

Timberlawn psychiatric facility in Dallas, which again prescribed Ritalin. His

stepfather, however, again took him off the drug. His behavior continued to

decline in school, particularly when he was no longer taking Ritalin. (Ex. 5 at ~40

[Aff. of Laura Sovine]; Ex. 11 at ~29 [Aff. of Pamela Maddox]; Ex. 12 at ~28 [Aff.

of Ramon Maddox, Sr.]; Ex. 13 at ~~14-15 [Aff. of Ramon Maddox, Jr.].)

c. Divergent Pathways

The effect of Roderick's cognitive and psychological impairments to his

development, and those impairments' subsequent misidentification as behavioral

problems, ultimately created a self-fulfilling prophesy. Roderick was driven

further into isolation and away from positive interventions. Instead, he found

acceptance amongst numerous negative influences. At the same time, his

continued self-destructive behaviors confirmed his parents' and school officials'

belief that Roderick needed more punishment and discipline. These two forces set

Roderick on a trajectory aimed for the juvenile justice system and, later, the

criminal justice system. (Ex. 5 at ~4 7 [Aff. of Laura SovineJ.)

54

i. Running Away

When Roderick was around thirteen years old, his parents began to leave

behind their habits of partying and abuse, and to focus on their family. Both

parents report that it was around this time that they learned how to manage their

marriage without arguments and violence. Ramon, Sr., particularly was motivated

to raise his children differently than he was parented. He became very strict with

the children and was suddenly providing a lot of oversight. Ramon, Sr., started

monitoring Roderick and his brothers' school work and making them participate in

church activities. He did not let them stay out past a certain time or spend too

much time at friends' houses. (Ex. 5 at ~41 [Aff. of Laura Sovine]; Ex. 12 at ~30

[Aff. of Ramon Maddox, Sr.]; Ex. 13 at ~8 [Aff. of Ramon Maddox, Jr.].)

The suddenness and harshness of this strictness backfired for Roderick.

Other family members noted how strict Ramon, Sr., had become. Roderick's

cousins did not like to come to the house to play. Ramon, Sr., admits that when

Roderick would not live up to his strictness, he would punish him by giving

whoopings, usually with a belt or extension cord. (Ex. 5 at ~43 [Aff. of Laura

Sovine]; Ex. 12 at ~30 [Aff. of Ramon Maddox, Sr.]; Ex. 13 at ~I2 [Aff. of Ramon

Maddox, Jr.]; Ex. 11 at ~~3I-32 [Aff. of Pamela Maddox]; Ex. 7 at ~~5-6 [Aff. of

Shamy Conley].)

Roderick struggled within this system of parenting, as he was unable to

change his behavior to accord with Ramon, Sr.' s rules. Whereas his brothers were

abJe to adapt and learn how to avoid getting punished, Roderick was not. He

would simply repeat the same behaviors that earlier had led to whoopings. (Ex. 5

at ~45 [Aff. of Laura Sovine]; Ex. 12 at ~30 [Aff. of Ramon Maddox, Sr.]; Ex. 13

at ~12 [Aff. of Ramon Maddox, Jr.]; Ex. 11 at ~~31-32 [Aff. of Pamela Maddox];

Ex. 7 at ~8 [Aff. of Shamy Conley].)

55

Probably in response to this punishment, Roderick began to run away from

home. His parents and siblings could tell that Roderick would leave home in order

to avoid the whoopings or when he got in trouble at school. At first, these episodes

only lasted a few hours. Roderick's parents were relieved when he returned home

and therefore did not punish him. As time went on, however, Roderick began

staying away for longer periods. Sometimes his stepfather went out looking for

him and brought him back home. Other times Roderick stayed away for a day or

more, and his parents reported him as a runaway to the police. (Ex. 5 at ~46 [Aff.

of Laura Sovine]; Ex

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