finding prejudice at sentencing from counsel’s failure to call an expert to testify about capital defendant’s organic brain injury, even though the jury heard testimony that the defendant had suffered childhood abuse, because “the jury was not afforded the benefit of expert testimony explaining the effects Caro’s physiological defects would have on his behavior, such as causing him to have ‘impulse discontrol’ and irrational aggressiveness”
How later courts described this case
- finding prejudice at sentencing from counsel’s failure to call an expert to testify about capital defendant’s organic brain injury, even though the jury heard testimony that the defendant had suffered childhood abuse, because “the jury was not afforded the benefit of expert testimony explaining the effects Caro’s physiological defects would have on his behavior, such as causing him to have ‘impulse discontrol’ and irrational aggressiveness”
- determining whether the dangers of pesticides were known in 1980 and 1981 when counsel investigated and tried the case, and holding that sufficient literature and data were available at that time to conclude that defendant had brain damage resulting from exposure
- holding that trial counsel’s failure to investigate and present evidence of brain damage was prejudicial error where three separate expert witnesses testified at an evidentiary hearing that they would have concluded that petitioner suffered from brain damage
- holding that the failure to introduce evidence of physiological defects that can cause “impulse dis-control” can prejudice a defendant because such evidence could reduce a defendant’s “moral culpability”
Written by the judges who cited it.
The opinion
KLEINFELD, Circuit Judge,
dissenting.
I dissent. The district court did not err in this case. But we did.
*1259 The opinion the majority issued the last time this case was heard on appeal 1 limited the evidentiary hearing to this question: “whether [Caro] suffered brain damage as a result of his exposure to neurotoxicants and his personal background.” That was all the district court was mandated to do, and that is what it did. The state’s attorney called no witnesses on the brain damage issue, the defendant called several, and the district court went with the evidence before it.
The problem in the case came at the earlier stage, when we formulated that outlandish mandate. It was as though the majority in this habeas case was trying the case, instead of the jury that heard it twenty years ago. The question before us was not (or at least should not have been) whether Caro was brain damaged. The only legitimate question before us was whether Caro’s lawyer rendered ineffective assistance of counsel.
The majority, in its first opinion, failed to approach that question seriously in light of the controlling precedents. I explained why in my previous dissent. 2 Basically, the majority said in that opinion that Caro’s lawyer fell beneath the minimal standards of criminal defense attorneys by not discovering and proving that pesticides damaged Caro’s brain when he was a child. I explained in my dissent that (1) Caro’s lawyer consulted two psychiatrists, a clinical psychologist, and a licensed clinical social worker, to get whatever mitigating evidence they could come up with regarding Caro’s mental or emotional condition; (2) the lawyer presented all the beneficial evidence they could come up with; (3) it wasn’t much, and these experts did not suggest to the lawyer that there was anyone or anything else that would generate more useful evidence; (4) the research on how pesticides cause brain damage was in large part published in the decades following Caro’s trial, so it was a physical impossibility for an expert witness to have relied on it; 3 (5) it probably wouldn’t have made any difference to Caro’s death penalty even if his lawyer had somehow proved, before it was generally accepted in the medical literature, that Caro’s childhood pesticide damage had caused brain damage, in view of his competent intellectual and social functioning in college and in the Marines, and his relentlessness and recidivism in his monstrous rapes and murders. As I also explained in my previous dissent, the majority decision did not follow this court’s precedents and the mandate of the Supreme Court. 4
Though the majority’s decision purported to be that Caro’s lawyer rendered ineffective assistance of counsel, it is more consistent with the proposition that if anyone can come up with anything that might have bolstered whatever case the defense had, during the decades following imposition of a death penalty, then the defendant is entitled to a new penalty trial. It is especially striking that at the core of the *1260 habeas case is testimony by one of the psychiatrists that Caro’s lawyer consulted that if he had it to do over again, knowing what he knows now, his view would have been different. 5 That may establish that he performed below the required standard of competence (or it may not — medical science advanced over the decades since the imposition of Caro’s death penalty), but it does not even bear on the question whether defense counsel fell below the required standard of competence. This latter question, about defense counsel, is the only one we have authority to answer.
Generally the doctrine of law of the case requires us to stick with a decision we have made. There is an exception to that rule, however, where our previous decision was “clearly erroneous and would work a manifest injustice.” 6 That exception applies. I dissent.
. Caro v. Calderon, 165 F.3d 1223 (9th Cir.1999).
. Id. at 1228-34 (Kleinfeld, J., dissenting).
. The majority opinion states that at the evi-dentiary hearing the experts testified that research was available during the early eighties that should have put Caro’s attorney on notice. In doing so, it ignores testimony indicating that most of the important research on the subject did not materialize until after Caro’s trial, and what was available was largely anecdotal.
. See Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Babbitt v. Calderon, 151 F.3d 1170 (9th Cir.1998); Coleman v. Calderon, 150 F.3d 1105 (9th Cir.), rev’d on other grounds, 525 U.S. 141 , 119 S.Ct. 500 , 142 L.Ed.2d 521 (1998); Williams v. Calderon, 52 F.3d 1465 (9th Cir.1995), discussed at Caro, 165 F.3d at 1228-34 .
. Caro, 165 F.3d at 1226 .
. Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir.1995); see also United States v. Garcia, 77 F.3d 274, 276 (9th Cir.1996) (applying the law of the case doctrine sua sponte).