# Harold McQueen Jr. v. Gene Scroggy, Warden > Court of Appeals for the Sixth Circuit · December 30, 1996 · 99 F.3d 1302 URL: https://www.frixlaw.com/law-library/cases/9489743 ## Case - **Full name:** Harold McQUEEN, Jr., Petitioner-Appellant, v. Gene SCROGGY, Warden, Respondent-Appellee - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** December 30, 1996 - **Citations:** 99 F.3d 1302 - **Precedential status:** Published - **Opinion:** Concurring in part by Keith - **Judges:** Keith, Kennedy, Boggs - **Cited by:** 269 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by In Re Abu-Ali Abdur'rahman, Movant. Abu-Ali Abdur'rahman v. Ricky Bell, Warden, 392 F.3d 174 (2004). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9489743 ## How later opinions describe it (automated extraction) - stating that an attorney “merely losing, being wrong, or On balance, therefore, the record reveals that eleven of the miscalculating is not enough to free every person convicted jurors were neutral on the death penalty (able to condemn a of a crime”). guilty defendant to death… - stating that a Wagoner seemed hesitant about the death penalty in the defendant cannot successfully claim constitutional error individual voir dire, stating that it was appropriate under simply because he might have been better off with a different “certain circumstances.” Iro… - holding that an attorney’s decision not to seek a separate trial was a reasonable tactical decision because it was based on the hope that a joint trial would cloud the issue of guilt by allowing the defendant to hide behind his less culpable half-brother - stating that “[notwithstanding the outcome-determination focus in Strickland, ... an analysis focusing solely on mere outcome determination without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.” - stating that “once the jury is Lewis, 497 U.S. at 780 . In conducting habeas review, a qualified, any combination of twelve of the fourteen jurors is federal court is limited to deciding whether a conviction as valid as any other” ## Opinion text *1336 KEITH, Circuit Judge, concurring in part and dissenting in part. Although I concur in a substantial portion of the majority opinion, I must dissent with respect to McQueen’s ineffective assistance of counsel claim and his claim that the trial court refused to allow a Morgan inquiry on voir dire. A. Ineffective Assistance of Counsel A careful search of the record will reveal that McQueen’s attorney, Jerome Fish (“Fish”), did not provide adequate counsel as guaranteed by the Sixth Amendment. Fish’s most glaring mistakes were: (1) his reliance upon the counsel of McQueen’s co-defendant; (2) his failure to conduct a sufficient investigation into McQueen’s background; and (3) his failure to effectively prepare his own expert witness before placing him on the stand. It is well established that where a defendant demonstrates that an actual conflict of interest has adversely affected his lawyer’s performance, he has stated a claim for ineffective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716 , 64 L.Ed.2d 333 (1980). Additionally, where there exists an actual conflict of interest, prejudice is to be presumed. Strickland v. Washington, 466 U.S. 668, 692 , 104 S.Ct. 2052, 2067 , 80 L.Ed.2d 674 (1984). In Burger v. Kemp, 483 U.S. 776, 783 , 107 S.Ct. 3114, 3120 , 97 L.Ed.2d 638 (1987), the Supreme Court found that appointing two partners from the same law firm to represent co-indictees in their respective trials creáted potential conflicts with respect to both clients. The Court noted that the risk of prejudice is even greater when both lawyers cooperate with one another in the planning and conducting of trial strategy, and when the co-indictees are tried together. Id. at 786 , 107 S.Ct. at 3122 ; Sullivan, 446 U.S. at 347 , 100 S.Ct. at 1718 . In the instant case, it is clear that Fish’s failure to act independently of John Lackey (“Lackey”), counsel for McQueen’s half brother Burnell, gave rise to an actual conflict, which rendered Fish ineffective as counsel for McQueen. It is undisputed that Fish believed that he and Lackey were partners, in a trial where both defendants were jointly tried. Indeed, Fish testified that he and Lackey functioned as “co-cóunsel,” and that he shared his trial strategies with Lackey. 1 However, Lackey had a quite different view of the circumstances. Lackey testified that he pursued a deliberate strategy to paint McQueen as a sinister character — responsible not only for the death of the victim but also for the corruption of his client, Burnell. 2 Lackey noted, considering the circumstances of the trial ... I had to pretty much lay as much blame as I could on the codefendant Mr. McQueen ... I tried to show that ... in both ... the penalty phase and the guilt and innocence phase that we should not treat these two people alike. That there were a great many mitigating circumstances for Burnell and, of course, I didn’t argue that McQueen had none, but the obvious implications were there. In the face of Lackey’s strategy to lay as much blame as possible on McQueen, Fish did nothing but assist Lackey. Lackey stated, [Fish] pretty much let me have my lead in making the decisions in the trial ... our pattern was pretty much I would tell Jerry what I was going to do after I did them. And he’d say, okay, sounds all right, and I’ll join in. When Fish was subsequently asked whether he was concerned about collaborating so *1337 closely with Lackey, a man who was trying to lay as much blame as possible on his client, he responded “[n]o, I didn’t find any conflict there at all really.” Fish’s inability, even after the trial, to recognize the inherent conflict of interest that existed between McQueen and Burnell is inexplicable. An apt example will serve to further illustrate the extent of Fish’s prejudicial and deficient performance. For instance, after Fish told Lackey that McQueen would not take the stand, Lackey planned to use this information to his client’s advantage by implicating McQueen as the trigger man with full knowledge that McQueen would not have the opportunity to rebut his insinuations through direct testimony. Lackey later testified about this strategy: Early on we saw that there was a fair possibility that Keith Burnell might want to testify in the case. And I wanted him to testify. And I’d understood from [Fish] that McQueen would not be, taking the stand. And 1 could perceive then that there would be a very serious problem of summation of not — of everything I would say on summation would have to very directly implicate the codefendant and he would not have had an opportunity to have taken the stand. And I could see problems with — I didn’t really know what the rule was for an attorney commenting on a codefendant not taking the stand. Of course, I know that a prosecution attorney cannot do that. But I wasn’t sure what the rule was for a codefendant’s attorney making that comment ... I felt, that at least indirectly, there would have to be the sort of comment by myself implicating McQueen. (emphasis added). The majority believed that Lackey’s statement was a “garbled account of a theory [he] hoped to pursue.” However, Lackey testified that he actually implemented a trial strategy designed to “put the gun in the hands” of McQueen. In his closing argument, he not only reminded the jurors to think of the two defendants separately but also commented that “as far as the homicide, you cannot link Keith Burnell up to what this man [McQueen] did. You remember his remarks that he made about not leaving any witnesses. They were not made in Burnell’s presence.” Lackey buttressed these remarks by describing to the jury past instances of McQueen’s violent behavior 3 and reminding them that Burnell was “immature” and “easily led.” Fish, in his characteristically oblivious fashion, did not notice or object to Lackey’s attacks upon his client. On the contrary, Fish responded by telling the jurors that his “co-counsel gave a beautiful summary” of the case and that he did not have that much to add. In concluding his summation, Fish reminded the jury to heed the words of Lackey. Thus, while Lackey was functioning as a co-prosecutor, Fish was unwittingly assisting him. There can be no doubt that Fish’s reliance prejudiced McQueen. 4 In my view, this reliance alone would have been sufficient to render Fish ineffective. However, Fish compounded this mistake by refusing to investigate McQueen’s background and failing to interview his own expert witness before placing him on the stand. In Burger, 483 U.S. at 791-95 , 107 S.Ct. at 3124-26 , the Supreme Court affirmed the dismissal of an ineffective assistance claim because the attorney was sufficiently knowledgeable of the defendant’s family history; interviewed all potential witnesses; and refused to put á psychologist on the stand after having obtained a report from the psychologist that was unfavorable to his client. In such a case, the Court ruled, the attorney’s performance did not “undermine[ ] confidence in the adversarial process....” Id. at 788 , 107 S.Ct. at 3123 . *1338 Unfortunately, Fish did not perform any of the tasks outlined by the Supreme Court in Burger as indicative of sound legal representation. 5 He failed to investigate McQueen’s background even though such an investigation would have revealed that McQueen had had a troubled childhood and had been addicted to drugs and alcohol for a long time. 6 McQueen’s past drug and alcohol addiction may have influenced the jury to impose a life sentence instead of the death penalty. 7 See, e.g., Kordenbrock v. Scraggy, 919 F.2d 1091, 1107 (6th Cir.1990) (noting that a jury could use a psychiatrist’s report chronicling the defendant’s intoxication as a mitigating factor on the issue of the death penalty). It is clear that a client’s counsel has a duty to make reasonable investigations on behalf of his client or at least to make reasonable determinations that investigations are not necessary. See Strickland v. Washington, 466 U.S. 668, 691 , 104 S.Ct. 2052, 2066 , 80 L.Ed.2d 674 (1984). From the record it is apparent that Fish did not do enough work to even make a reasonable decision as to whether an investigation into McQueen’s background should have been conducted. His failure to investigate, because he did not believe an investigation “was that great of a thing,” cannot be deemed a reasonable decision under the circumstances. See Sims v. Livesay, 970 F.2d 1575, 1579-81 (6th Cir.1992) (holding that the failure to adequately investigate mitigating and exculpatory evidence is a denial of effective assistance of counsel). *1339 In addition, Fish also failed to prepare his expert witness Martin Gebrow (“Gebrow”) who testified at the sentencing phase of the trial. The record discloses that Fish spoke only briefly with Gebrow prior to Gebrow’s testimony, and that Fish was not even certain if Gebrow had in fact performed an evaluation of McQueen. Fish did not acquire (or even request) from Gebrow an evaluating report on McQueen and admitted that the only statement Gebrow made to him concerning McQueen was that McQueen was “just one of these asses ... you know what I mean, just bad.” Predictably, Gebrow went on to testify that McQueen was a “sociopath.” In this, a capital case, with his client in jeopardy of receiving the death penalty, Fish spent only a few minutes with his own expert witness and failed to weigh the devastating impact of that witness’ testimony. The prejudicial effect of Gebrow’s testimony is best summed up by Lackey, who stated, “I just almost went through the chair. I was just so shocked to hear that from McQueen’s own witness.” Had Fish adequately prepared Gebrow, he would have realized that Gebrow should not have been called as a witness. The issue here is not of McQueen’s guilt, or the horror of his crime, but whether he received effective counsel. I submit that due to Fish’s reliance on Lackey, his failure to investigate McQueen’s background, and his failure to prepare Gebrow for sentencing, McQueen did not receive adequate counsel as required by the Sixth Amendment. B. Morgan Inquiry Finally, I also believe that McQueen was denied a sufficient opportunity,- as required by Morgan v. Illinois, 504 U.S. 719 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 (1992), to effectively voir dire the prospective jurors. In Morgan , a defendant sentenced to death challenged a trial court’s refusal to ask potential venire-persons whether they would automatically impose the death penalty in all instances. Id. at 723 , 112 S.Ct. at 2226 . The trial court refused to ask the question because it believed that it had been asked in a “different vein substantially in that nature.” Id. The Supreme Court reversed and found that the defendant should have been allowed to inquire into whether potential jurors were predisposed to impose the death penalty where they found the defendant guilty of murder. Id. The Supreme Court reasoned that because a defendant could challenge for cause any prospective juror who would automatically impose the death penalty, a defendant had a right to make a specific inquiry into whether a prospective juror would impose the death penalty in all murder eases. Id. In the instant case, the majority found that the jurors were indirectly questioned about their propensity to automatically impose a death sentence since they were asked whether they would consider imposing every possible penalty and a life sentence was one of the possible penalties. However, the majority’s argument is reminiscent of the one rejected by the Supreme Court in Morgan. 8 Morgan clearly distinguished between asking jurors general questions — ie., questions about whether they would consider a range of penalties — and asking jurors specific questions designed to ascertain their disposition towards imposing the death penalty if they found the defendant guilty of murder. Id. at 729 , 112 S.Ct. at 2229-30 . The question that was asked in this ease — “would the jury consider all penalties under the law?” — is exactly the type of “follow the law” question that was explicitly rejected in Morgan. Id. at 734-35 , 112 S.Ct. at 2232-33 . Consequently, *1340 under the parameters of Morgan , McQueen’s counsel should have been allowed to inquire directly as to whether the jurors would automatically impose the death penalty if they found McQueen guilty of murder. See United States v. McCullah, 76 F.3d 1087, 1113 (10th Cir.1996) (noting that Morgan is satisfied where each juror was asked whether “he would recommend against the death penalty if the law and the evidence justified it and [where] counsel [was allowed] to elicit information on jurors’ views toward mitigating circumstances and toward automatic imposition of the death penalty”). Thus, for the foregoing reasons, I must respectfully dissent. As stated above, counsel’s egregious errors in combination with the trial court’s refusal to allow a Morgan inquiry on voir dire, denied the defendant his fundamental right to a fair trial as guaranteed by the Sixth Amendment. . Not only did Fish often refer to Lackey as his co-counsel but on direct examination he answered many of the questions posed to him in the first person plural. The majority would like to believe that Lackey also shared relevant information with Fish. However, the record indicates otherwise. For example, Fish relied upon Lackey not only for pretrial motions and trial motions but also to interview witnesses for the guilt phase of the trial. There is no indication that Lackey relied upon Fish to help him defend Burnell in any way. . As a matter of fact when Lackey was asked by Burnell's father to represent both his son (Bur-nell) and step-son (McQueen), he declined commenting that their interests were mutually antagonistic. . Lackey told the juiy that McQueen had threatened to kill another individual on the same weekend that the robbery had taken place and that he had picked a fight with another individual for “no reason at all." . The majority argues that McQueen was not prejudiced because Fish did not compromise McQueen’s interest. However, the majority ignores the message of Strickland — namely, that prejudice is to.be presumed where, as in this case, there exists an actual conflict of interest. Strickland, 466 U.S. at 692 , 104 S.Ct. at 2067 . .The. following testimony reveals that Fish did not do any investigation into McQueen’s background: App. Counsel: Prior to the trial did you discuss with Mr. McQueen his background? Fish: I think I probably did, but I knew Harold before this trial. App. Counsel: Okay. What did you know about him? Fish: I knew Harold there in Berea where I lived and where he lived at the time. Knew of him and so forth. App. Counsel: Did you know anything about his childhood? Fish: No. I did not. About his childhood, no. App. Counsel: Okay. Did you know anything about his relationships with his family? Fish: No. App. Counsel: Did you talk to Harold about his history of involvement with drugs? Fish: I think, I’m not sure I talked with him about it, but I was aware of it. Because Harold used to smoke marijuana in my mother's restaurant. My mother pointed it out to me and I went one time and asked Harold to leave the restaurant. I was aware of his use of drugs from just knowing personally. App. Counsel: But did you — did you take any type of history from him in relation to his drug involvement? Fish: No. I did not see any — no I did hot do that. App. Counsel: Or did you talk to him about any treatment that he may have had in the past for his drug involvement? Fish: I don’t think so. App. Counsel: So did you attempt to obtain any records or talk to any doctors in relation to any treatment that Mr. McQueen may have had for his .drug involvement? Fish: No. App. Counsel: Were you aware that he had any treatment for drug involvement— Fish: No. App, Counsel: — prior to— Fish: No. App. Counsel: Don’t you think it was important to determine that since your mitigating factor at the penalty phase was intoxication? Fish: I did not apparently think it was that important. I didn’t think, apparently, as I knew Harold that he was not as strung out on drugs or apparently as I knew him, knew he smoked pot, like I say, in my mother's restaurant, but apparently as I recall, I didn't think it was that great a thing. So I guess that’s the reason, you know, did not look further into it myself. . McQueen's appellate counsel discovered that McQueen was the product of two alcoholic and abusive parents, and that his mother drank while she was pregnant with him. McQueen was sent to live with his grandparents because his parents abdicated their parental responsibilities. When McQueen's mother remarried, McQueen went to live with them. At the age of ten his step-father encouraged him to drink beer and whiskey. McQueen was later sent to a juvenile home where he witnessed the rape of one of the juveniles. The home was later closed because of widespread child abuse. McQueen dropped out of school in the ninth grade and eventually joined the army where he was introduced to the daily use of heroin and hashish. From then on, McQueen was either intoxicated, under the influence of drugs, in state hospitals attempting to overcome his addiction, or in prison. > . Interestingly, Fish did not do any investigation of McQueen’s drug and alcohol addiction even though he asserted to the Court at sentencing that McQueen was incapable of forming the nec-essaiy intent for murder because of his alcohol intoxication. . The majority argues that "the defense was given an ample opportunity to ask questions that would elicit the same information as asking whether a juror would always impose the death penalty.” They further argue that a "person who answers that he will consider every possible pen- . alty ... is by virtue of that answering disclaiming the intent to impose the death penalty in every case.” In Morgan , a very similar argument was made. The appellees contended that a person who takes an oath to follow the law is also indicating their intent not to apply the death penalty in all circumstances. The Supreme Court rejected this argument, finding that each defendant should be allowed to inquire directly as to each juror’s view on the application of the death penalty. See Morgan, 504 U.S. at 736 , 112 S.Ct. at 2233 ("[The defendant] was entitled, upon his request, to inquiry discerning those jurors who, even prior to the State's case in chief, had predetermined the terminating issue of his trial, that being whether to impose the death penalty.”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9489743. Public record. Not legal advice.