holding that “the state court’s prejudice determination was objectively reasonable in the sense that it was not inconsistent with the facts of [the] case — specifically, when those facts are viewed in the context of the extreme cruelty of the murder as an aggravating circumstance and that much of the mitigating evidence had already been presented to the jury, albeit in an abbreviated form”
How later courts described this case
- holding that “the state court’s prejudice determination was objectively reasonable in the sense that it was not inconsistent with the facts of [the] case — specifically, when those facts are viewed in the context of the extreme cruelty of the murder as an aggravating circumstance and that much of the mitigating evidence had already been presented to the jury, albeit in an abbreviated form”
- finding ineffective assistance of counsel where, inter alia, the defense-retained psychologist’s testimony “was surely limited by the fact that she had met with Neal just one time, three days before testifying, and that trial counsel failed to tell her about what specific crime Neal had been charged with or any facts about his personal history”
- holding that in considering whether an attorney’s performance was objectively reasonable, a court “must determine whether there is a gap between what counsel actually did and what a reasonable attorney would have done under the circumstances”
- holding that although the state court’s decision was erroneous, because it did not involve an unreasonable application of Strickland, the AEDPA requires that the habeas petition must be denied
Written by the judges who cited it.
The opinion
EDITH H. JONES, Circuit Judge,
concurring:
While I generally agree with the majority’s articulation and application of the Supreme Court’s recent decision in the Williams case, I think a strong argument can be made that Neal was not prejudiced under Strickland by his attorneys’ failure to investigate and flesh out for the jury certain mitigating evidence. 1 Williams, in my view, did not break new ground in the assessment of Strickland prejudice. Rather, both Justice Stevens’s and Justice O’Connor’s comments on the fact-specific application of the test state why the Virginia Supreme Court erred under Strickland. Both those opinions observe that the state supreme court failed to weigh the total available mitigating evidence against the aggravating factors in Williams’s crime. Both of them state that the Virginia Supreme Court did not consider the possibility that mitigating evidence unrelated to the petitioner’s dangerousness, i.e. his tragic childhood and mental problems, would affect the imposition of the death penalty. Neither of those errors can be attributed to the Mississippi Supreme Court in this case.
*698 Moreover, Williams makes a particularly appealing case for erroneous application of Strickland’s prejudice prong on facts which are quite different from those before us. First, entirely new mitigating evidence was uncovered in the Williams state habeas proceeding. Second, the quality and quantity of this mitigating evidence led the same judge who tried Williams’s case to conclude that it would have affected the jury’s evaluation of the death penalty. Third, Williams had turned himself in, confessed, and cooperated with the police and expressed remorse about the killing. Fourth, Williams’s murder was not as brutal as the one before us, and Justice Stevens noted that it might even have been compulsive. Fifth, Williams’s counsel made a brutally frank closing argument, in which he said that although his client had shown no mercy to his victims, the jury ought to show mercy. Sixth, Williams had received commendations in prison for assisting the authorities. Seventh, a lay prison minister would have testified that Williams appeared to perform well in a structured prison environment. Eighth, the sentencing jury was never informed that Williams was borderline mentally retarded.
This case offers few direct comparisons with Williams. Both petitioners suffered an unfortunate childhood and both are somewhat mentally retarded. The similarities appear to end there. In Neal’s case, the jury was not wholly ignorant of these mitigating facts. In Neal’s case, it was suggested that he may have premeditated the murders of his brother and the two girls; in any event, no one would call them “compulsive.” Neal apparently did not display remorse, nor did he turn himself in. He was on the lam in California when he was arrested. 2 All of these factors would weigh heavily in a jury’s mind on aggravation, and the jury was able to balance them against its knowledge of his deprived childhood and borderline mental retardation.
The grounds for the majority’s attributing an erroneous application of Strickland prejudice in Neal’s case thus boil down to inadequate knowledge by the jury, as opposed to ignorance, of the possible extent of mitigating factors. I agree with the majority opinion that Williams mandates a painstaking review of the Strickland prejudice prong in cases of constitutionally deficient counsel. Measuring this case fact-by-fact against Williams, however, I do not believe that Williams strengthens a finding that the Mississippi Supreme Court erroneously applied Strickland. Since I think it arguable that the Mississippi Supreme Court did not make such an error, it is much easier for me to conclude that the court did not “unreasonably” apply Strickland under the AEDPA.
In short, neither Williams nor this opinion should be viewed as breaking new ground under Strickland’s prejudice prong. Both cases represent conscientious applications of well-established law, though reasonable minds might differ.
. I would pretermit and do not comment on whether Neal's attorneys were constitutionally deficient. The Mississippi Supreme Court did not rule on this point either.
. As the majority note, some of the newly proffered mitigating evidence, involving Neal’s inability to control himself and Neal’s experiences in an Oklahoma prison (which would have led to the revelation that he was incarcerated on an aggravated assault charge), may not have been to Neal’s full advantage.