Petition for Writ of Certiorari — Casey A. McWhorter, Petitioner v. Jefferson S. Dunn, Commissioner, Alabama Department of Corrections, et al.
Supreme Court briefMar 17, 2021
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No.
IN THE
Supreme Court of the United States
CASEY A. MCWHORTER,
Petitioner,
v.
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF THE STATE OF ALABAMA,
Respondent.
On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
CAPITAL CASE
Benjamin Rosenberg
Counsel of Record
DECHERT LLP
Three Bryant Park
1095 Avenue of the
Americas
New York, New York 10036
(212) 698-3500
benjamin.rosenberg@
dechert.com
Robert C. Newman
THE LEGAL AID SOCIETY
199 Water Street
New York, New York 10038
(212) 577-3354
Attorneys for Petitioner
Sam H. Franklin
LIGHTFOOT, FRANKLIN
& WHITE, LLC
The Clark Building
400 20th Street North
Birmingham, Alabama 35203
(205) 581-0720
CAPITAL CASE
QUESTIONS PRESENTED
This case presents important issues concerning a criminal defendant’s
constitutional rights to an impartial jury and to the effective assistance of counsel in
a death penalty mitigation proceeding. Petitioner respectfully presents three issues
for review, each of which warrants the involvement of this Court:
1.
Whether a federal court violates 28 U.S.C. § 2254(d)(2) when, in
determining whether a state court’s factual findings were reasonable, it expressly
declines to consider evidence in the record that contradicts the state court’s findings.
2.
Whether McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548
(1984), which established the standard for whether the presence of a biased juror
deprived the defendant of an impartial jury, requires the defendant to establish that
the juror’s bias actually affected her judgment about the case.
3.
Whether a federal court violates 28 U.S.C. § 2254(d)(2) when it
concludes that counsel conducted an adequate penalty phase investigation even
though trial counsel fundamentally misunderstood what mitigation evidence was.
i
LIST OF PARTIES
The parties involved are listed in the caption.
STATEMENT OF RELATED PROCEEDINGS
McWhorter v. State, No. CC-93-77A (Ala. Cir. Ct.) (issuing sentencing order on May
14, 1993).
McWhorter v. State, No. CR-93-1448 (Ala. Crim. App.) (affirming conviction and
sentence on Aug. 27, 1999, as reported at 781 So.2d 257; later denying
rehearing in unreported decision on Dec. 3, 1999).
Ex Parte McWhorter, No. 1990427 (Ala.) (affirming conviction and sentence on Aug.
11, 2000, as reported at 781 So.2d 330; later denying rehearing in unreported
decision on Oct. 27, 2000).
McWhorter v. Alabama, No. 00-8327 (U.S.) (denying certiorari for the direct appeal
of McWhorter’s conviction and sentence on April 16, 2001, as reported at 532
U.S. 976).
McWhorter v. State, No. CC-93-77.60 (Ala. Cir. Ct.) (issuing final order
denying McWhorter’s petition under Alabama Rule of Criminal Procedure
Rule 32 in unreported decision on March 29, 2010).
McWhorter v. State, No. CR-09-1129 (Ala. Crim. App.) (affirming denial of Rule 32
petition on Sept. 30, 2011, as reported at 142 So.3d 1195; later denying
rehearing in unreported decision on Feb. 10, 2012).
McWhorter v. State, No. 1110609 (Ala.) (denying certiorari regarding denial of Rule
32 petition in unreported decision on Nov. 22, 2013).
ii
McWhorter v. Comm’r, Alabama Dep’t of Corr., No. 4:13-cv-2150-RDP (N.D. Ala.)
(denying petition for writ of habeas corpus on Jan. 22, 2019, as reported at
2019 WL 277385).
McWhorter v. Comm’r, Alabama Dep’t of Corr., No. 19-11535 (11th Cir.) (affirming
denial of habeas petition on issues certified for appeal on Aug. 18, 2020, as
reported at 824 F. App’x 773; later denying petition for rehearing in
unreported decision on Oct. 20, 2020).
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
LIST OF PARTIES ........................................................................................................ ii
STATEMENT OF RELATED PROCEEDINGS ........................................................... ii
TABLE OF APPENDICES ........................................................................................... vi
TABLE OF CITED AUTHORITIES .......................................................................... viii
OPINION BELOW......................................................................................................... 1
STATEMENT OF JURISDICTION .............................................................................. 1
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ....................... 2
INTRODUCTION .......................................................................................................... 2
STATEMENT OF THE CASE....................................................................................... 5
A.
MCWHORTER’S CONVICTION AND SENTENCE......................................... 5
B.
MCWHORTER’S BIASED JURY AND INEFFECTIVE ASSISTANCE
OF COUNSEL CLAIMS ..................................................................................... 8
C.
ALABAMA COURTS DENY POST-CONVICTION RELIEF ......................... 13
D.
THE FEDERAL DISTRICT AND APPELLATE COURTS DENY
HABEAS RELIEF ............................................................................................. 14
REASONS FOR ALLOWANCE OF THE WRIT ........................................................ 15
A.
THE DECISION BELOW FAILED TO CONSIDER THE WHOLE
RECORD IN EVALUATING MCDONOUGH’S FIRST PRONG .................... 16
B.
THE DECISION BELOW ERRONEOUSLY APPLIED
MCDONOUGH’S SECOND STEP ................................................................... 20
iv
C.
COUNSEL’S MITIGATION INVESTIGATION COULD NOT HAVE
BEEN ADEQUATE WHERE COUNSEL DID NOT UNDERSTAND
THE MEANING OF MITIGATION EVIDENCE ............................................ 23
CONCLUSION............................................................................................................. 28
v
TABLE OF APPENDICES
Opinion in the United States Court of Appeals for the Eleventh Circuit
(August 18, 2020)............................................................................................. App. 1
Order Denying Petition for Rehearing En Banc in the United States Court of
Appeals for the Eleventh Circuit
(October 20, 2020).......................................................................................... App. 36
Order Granting Extension of Time to file Petition for Rehearing in the United
States Court of Appeals for the Eleventh Circuit (August 25, 2020) .......... App. 37
Certificate of Appealability in the United States Court of Appeals for the
Eleventh Circuit (July 28, 2020) ................................................................... App. 38
Memorandum Opinion in the United States District Court for the Northern
District of Alabama (January 22, 2019) ....................................................... App. 40
Final Judgment in the United States District Court for the Northern District
of Alabama (January 22, 2019) ................................................................... App. 125
Opinion in the Court of Criminal Appeals of Alabama
(September 30, 2011)................................................................................... App. 127
Final Order Denying McWhorter’s Amended Rule 32 Petition
(March 29, 2000) .......................................................................................... App. 176
Order Denying Petition for Writ of Certiorari to the Alabama Supreme Court
(April 16, 2001) ............................................................................................ App. 254
Opinion in the Supreme Court of Alabama (August 11, 2000) ....................... App. 255
Opinion in the Court of Criminal Appeals of Alabama (August 27, 1999)..... App. 272
Sentencing Order in the Circuit Court of Marshall County, Alabama
(May 13, 1994) ............................................................................................. App. 346
28 U.S.C. § 2254 ................................................................................................ App. 358
U.S. Const. amend. VI ...................................................................................... App. 361
Juror Information Questionnaire..................................................................... App. 362
vi
Transcript Excerpt in the 27th Judicial Circuit Court, Marshall County,
Alabama Penalty Phase .............................................................................. App. 365
Transcript Excerpt Rule 32 Hearing Stonecypher Extract............................. App. 471
Transcript Excerpt Rule 32 Hearing Trial Counsel Redirect ......................... App. 490
vii
TABLE OF CITED AUTHORITIES
Cases
Brumfield v. Cain,
576 U.S. 305 (2015) .............................................................................................. 4, 17
Caperton v. A.T. Massey Coal Co., Inc.,
556 U.S. 868 (2009) .................................................................................................. 22
Cunningham v. Zant,
928 F.2d 1006 (11th Cir. 1991) ................................................................................ 27
Gacho v. Willis,
986 F.3d 1067 (7th Cir. 2021) .................................................................................. 22
Hardwick v. Crosby,
320 F.3d 1127 (11th Cir. 2003) .......................................................................... 24, 28
Hitchcock v. Dugger,
481 U.S. 393 (1987) .................................................................................................. 28
Leverett v. Spears,
877 F.2d 921 (11th Cir. 1989) .................................................................................. 19
McDonough Power Equipment, Inc. v. Greenwood,
464 U.S. 548 (1984) .......................................................................................... passim
Miller-El v. Cockrell,
537 U.S. 322 (2003) .................................................................................................. 18
Rompilla v. Beard,
545 U.S. 374 (2005) ........................................................................................ 3, 16, 28
Strickland v. Washington,
466 U.S. 668 (1984) .......................................................................................... passim
United States v. Carpa,
271 F.3d 962 (11th Cir. 2001) (per curiam) ............................................................. 23
United States v. Perkins,
748 F.2d 1519 (11th Cir. 1984) ................................................................................ 21
viii
Wainwright v. Witt,
469 U.S. 412 (1985) .................................................................................................. 22
Warger v. Shauers,
574 U.S. 40 (2014) .................................................................................................... 16
Wiggins v. Smith,
539 U.S. 510 (2003) .................................................................................................. 24
Williams v. Taylor,
529 U.S. 362 (2000) .............................................................................................. 3, 16
Wood v. Allen,
558 U.S. 290 (2010) .................................................................................................. 17
Constitution and Statutes
U.S. Const. amend. VI ................................................................................................... 2
28 U.S.C. § 1254(1) ........................................................................................................ 2
28 U.S.C. § 2254 ............................................................................................................. 2
28 U.S.C. § 2254(d)(2) ..................................................................................... i, 4, 17, 20
Ala. Acts 1981, No. 81-178 ............................................................................................ 5
Ala. Acts 2017-131 ......................................................................................................... 5
Ala. Code § 13A–5–46 .................................................................................................... 6
Ala. Code § 13A–5–47(e) ................................................................................................ 6
Ala. Code § 13A–5–52 .................................................................................................... 6
Rules
Ala. R. Crim. P. 32 ............................................................................................... passim
Ala R. Evid. 606(b) ....................................................................................................... 19
ix
Other Authorities
David Yokum et. al., The Inability to Self-Diagnose Bias, 96 DENV. L. REV. 869
(2018) ........................................................................................................................ 21
x
OPINION BELOW
The opinion of the United States Court of Appeals for the Eleventh Circuit
affirming the denial of habeas corpus is available at McWhorter v. Commissioner,
Alabama Department of Corrections, 824 F. App’x 773 (11th Cir. 2020). App. 1-35.
The Eleventh Circuit’s denial of panel rehearing and rehearing en banc is
unpublished. App. 36. The district court’s opinion denying habeas corpus is available
at McWhorter v. Dunn, No. 4:13-cv-2150-RDP, 2019 WL 277385 (N.D. Ala. Jan. 22,
2019). App. 40-124.
The Alabama Court of Criminal Appeals’ decision affirming the denial of postconviction relief is reported at McWhorter v. State, 142 So.3d 1195 (Ala. Crim. App.
2011), App. 127-75, but the Alabama Circuit Court’s decisions denying postconviction relief are unpublished. App. 176-253. The Alabama Supreme Court’s
decision affirming the conviction and sentence on direct appeal is reported at Ex Parte
McWhorter, 781 So.2d 330 (Ala. 2000), App. 255-71, and this Court’s order denying
certiorari for McWhorter’s appeal of that decision is reported at McWhorter v.
Alabama¸ 121 S. Ct. 1612 (April 16, 2001). The Alabama Court of Criminal Appeal’s
decision affirming the conviction and sentence on direct appeal is reported at
McWhorter v. State, 781 So.2d 257 (Ala. Crim. App. 1999). App. 272-345. The
Alabama Circuit Court’s sentence and conviction are unpublished. App. 346-57.
1
STATEMENT OF JURISDICTION
This Court has jurisdiction under 28 U.S.C. § 1254(1). The Eleventh Circuit
issued an opinion affirming the denial of McWhorter’s habeas petition on August 18,
2020, App. 1, and on October 20, 2020, denied McWhorter’s timely motion for
rehearing, App. 36. 1 In March 2020, this Court extended the time for filing all
certiorari petitions due on or after March 19, 2020, to 150 days from the date of, as
relevant here, the order denying rehearing. 589 U.S. (order dated March 19, 2020).
This petition is filed within 150 days of October 20, 2020.
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed . . . , and to have the
Assistance of Counsel for his defence.
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2254, provides, in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
On August 25, 2020, the Eleventh Circuit extended McWhorter’s time to file a petition for
panel rehearing until September 14, 2020. App. 37. McWhorter then timely filed the petition for
rehearing.
1
2
INTRODUCTION
Petitioner Casey McWhorter sits on death row, convicted of a crime committed
a few weeks after his eighteenth birthday.
The Alabama state court jury
recommended the death penalty in a vote of 10-2, the minimum vote threshold to
recommend imposition of a death sentence, and the judge imposed that sentence.
Measured against the clearly established standards set forth by this Court,
McWhorter’s criminal proceedings were constitutionally deficient. As this Court has
instructed, a defendant is denied his constitutional right to an impartial jury if a
“juror failed to answer honestly a material question on voir dire,” and “a correct
response would have provided a valid basis for a challenge for cause.” McDonough
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984). Likewise, this Court has
time and again reiterated that a defendant is denied the constitutional right to
effective assistance of counsel if his counsel fails to conduct a satisfactory mitigation
investigation in connection with a capital trial. Rompilla v. Beard, 545 U.S. 374, 38081 (2005); Williams v. Taylor, 529 U.S. 362, 390 (2000); see also Strickland v.
Washington, 466 U.S. 668, 690-92 (1984). McWhorter’s conviction and sentence
violated each of these precedents, and these errors “undermine confidence in the
fundamental fairness of the state court adjudication.” Williams, 529 U.S. at 375.
1. Juror dishonesty: During voir dire juror Linda Burns lied in response to a
questionnaire to earn a seat on the jury of a murder trial. In response to the question
about whether any of her family members had been crime victims, Burns did not
disclose that her father had been a murder victim. Instead, she listed only her
3
brother-in-law, whom she described as a victim in connection with “drugs.” She then
explained in colloquy that her brother-in-law had in fact been charged with a crime
but was not a crime victim.
Evidence adduced at the state collateral proceeding established that when
answering the voir dire questionnaire, Burns had her father’s murder in mind and
dishonestly withheld it. A fellow juror, April Stonecypher, testified that mere days
after the voir dire, Burns unequivocally described her father as a crime victim.
According to Stonecypher, Burns tearfully told her fellow jurors about her father’s
murder and that she had been emotionally devastated upon seeing her father’s
murderer walk freely down a street in her hometown following his release from
prison.
In its review of the record, the Eleventh Circuit expressly declined to consider
Stonecypher’s testimony in evaluating whether Burns had lied during the voir dire.
In doing so, the Eleventh Circuit effectively abdicated its responsibility to conduct
judicial review, running afoul of AEDPA’s instruction to measure the state court’s
fact findings “in light of the evidence presented at the State court proceeding.” 28
U.S.C. § 2254(d)(2); see also Brumfield v. Cain, 576 U.S. 305, 314 (2015).
2. Actual bias: The Eleventh Circuit erred by requiring a showing beyond that
set by this Court to establish that a juror was biased. The Eleventh Circuit effectively
held that McWhorter needed to show that Burns, the lying juror, had “actual bias”—
i.e., that McWhorter was prejudiced by Burns’s presence on the jury. See App. 22-23
(“[B]oth Alabama’s might-have-been prejudiced standard and McDonough depend on
4
whether the juror’s bias may have influenced the verdict against the defendant.”).
The Eleventh Circuit’s “actual bias” requirement is contrary to this Court’s holding
that the defendant need demonstrate only that, had the truth about Burns been
known at the time of voir dire, there would have been a valid basis to challenge her
for cause. McDonough, 464 U.S. at 556. In other words, the Eleventh Circuit and the
CCA impermissibly converted McDonough’s ex ante element into an ex post
requirement.
3. Mitigation investigation:
The Eleventh Circuit highlighted that
McWhorter’s counsel did not understand the role of mitigation evidence in the penalty
phase of a death penalty case. As a consequence of their misunderstanding, counsel
conducted less than the bare minimum of investigation: A single, joint interview of
three of McWhorter’s family members, just eleven days before the trial, without any
follow up on information from the interview, and without any effort to locate the 18year old’s friends or mentors. Theirs was a textbook case of inadequate assistance of
counsel.
STATEMENT OF THE CASE
A.
MCWHORTER’S CONVICTION AND SENTENCE
McWhorter was the sole defendant in a week-long murder trial in Marshall
County Circuit Court in Alabama (the “Trial Court”). At the time of McWhorter’s
trial, 2 Alabama capital criminal trials included a guilt phase, a penalty phase, and a
The operative version of the relevant portions of the Alabama Code during McWhorter’s trial
were passed in 1981. Ala. Acts 1981, No. 81-178. Subsequently, these have been revised. Ala. Acts
2017-131.
2
5
sentencing phase. Ala. Code § 13A–5–46. If the jury found the defendant guilty
during the guilt phase, the same jury sat as an advisory panel during the penalty
phase. Id. In the penalty phase, the jury evaluated eight statutory aggravating
circumstances, and seven non-exclusive mitigating circumstances. Id. With respect
to mitigation evidence, Alabama law specifically required the jurors to consider “any
aspect of a defendant’s character or record and any of the circumstances of the offense
that the defendant offers as a basis for a sentence of life imprisonment without parole
instead of death.” Ala. Code § 13A–5–52. At least ten out of twelve juror votes were
required to recommend a death sentence; only a majority of juror votes were required
to recommend life without parole. Ala. Code § 13A–5–46. In rendering its sentence,
the trial court was required to consider the recommendation of the jury. Ala. Code
§ 13–A5–47(e).
The guilt phase of McWhorter’s trial began on March 17, 1994, and the jury
found McWhorter guilty of capital murder five days later. App. 365, 368. The same
day the jury rendered the guilty verdict, the trial court held the penalty phase of the
trial. App. 371, 374. Defense counsel offered no documentary evidence in the penalty
phase and called only four witnesses, whose combined testimony—including crossexamination—took up a total of about 26 pages of transcript. App. 380-407. The
witnesses were McWhorter’s mother, aunt, former co-worker from a local grocery
store, and former boss from McWhorter’s brief employment at a local restaurant. Id.
McWhorter’s mother and aunt testified, predictably, that they hoped McWhorter’s life
would be spared. App. 389, 395-96, 404. The co-worker testified that McWhorter was
6
“one of the better bag boys,” App. 384, and the restaurant owner testified that
McWhorter had worked at the restaurant as a busboy for “a month or so,” “on
weekends,” a “few years ago,” and had been “a good kid.” App. 387. The defense
counsel did not call—and had never even interviewed—18-year-old McWhorter’s
stepfather or a single one of his teachers, classmates, friends, aunts, uncles, or
cousins.
Despite the paltry mitigation evidence, the jury quickly informed the Trial
Court that it could not reach a verdict with regard to punishment. App. 456-58. The
Trial Court responded with an Allen charge, explaining that the jury’s failure to reach
a verdict would cause substantial expense, as it would require a new jury to be
selected, sequestered, and presented with evidence. App. 458-61. When the jurors
returned to deliberations, Burns tearfully informed her fellow jurors of her father’s
murder, and of her pain when she saw her father’s killer walk freely down the street
in her town after his release from prison. App. 488-89. The jury then returned a vote
of 10-2 in favor of the death penalty. App. 461-62. After a brief sentencing hearing,
the Trial Court, “having given careful consideration to the jury’s advisory
recommendation,” sentenced McWhorter to death. App. 356. His direct appeals were
denied, and this Court denied his petition for certiorari in connection with his direct
appeal in 2001. See generally App. 254-345; McWhorter v. Alabama, 532 U.S. 976
(2001). McWhorter is currently on death row at the William C. Holman Correctional
Facility.
7
B.
MCWHORTER’S BIASED JURY AND INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIMS
In 2002, McWhorter collaterally challenged his conviction in the Marshall
County Circuit Court of Alabama (the “Circuit Court” 3) pursuant to Alabama Rule of
Criminal Procedure 32 (the “Rule 32 Petition”). Relevant here, McWhorter advanced
two challenges: (1) that he was denied an impartial jury (“Biased Jury Claim”) and
(2) that he was denied effective assistance of counsel during the penalty phase of trial
(“Ineffective Assistance Claim”). In 2009, the Circuit Court held a hearing on the
Biased Jury and Ineffective Assistance of Counsel Claims (the “Rule 32 Hearing”).
App. 190.
1. The Biased Jury Claim turned on Burns’s failure to answer questions during
voir dire honestly. During voir dire, prospective jurors for the capital case were
presented with a questionnaire. Burns deliberated over the questionnaire—she was,
in fact, the last person in her jury room to complete it—precisely recounting her
educational and employment history, the newspapers to which she subscribed, and
the news programs to which she regularly listened. App. 365-67. The form also asked
questions about her and her family members’ experience with crime. Question 21
asked whether any of Burns’s family members had “ever been the victim of a crime.”
App. 363. Question 22 asked whether any of Burns’s family members had “ever been
accused of a crime.” Id. In response to both, Burns listed her brother-in-law, but
failed to divulge that her own father had been murdered:
Both the trial and the Rule 32 petition were heard before the Marshall County Circuit Court
of Alabama. This brief refers to that court as “Trial Court” when discussing the trial proceedings, and
as the “Circuit Court” when referring to post-conviction, Rule 32 proceedings.
3
8
Id. Burns also left blank the question on the form asking whether there was “any
other information that you believe might be important for the court or for the lawyers
to know about you as a possible juror.” App. 364. Burns was then selected as a juror
and served on the jury.
Burns’s answers on the form concealed from McWhorter’s counsel any clues
about a traumatic event of her childhood, directly relevant to her ability to sit on a
capital jury: Burns’s father, Olive Daniels, had been the victim of a homicide. As
established at the Rule 32 proceedings, one night when Burns was twelve-years old,
Daniels went out with two other men, Langford Crawley and Charles Taylor, to a
pond in an abandoned rock mine. App. 58. Only Crawley returned from the outing.
Taylor was found beaten to death. Daniels was found dead at the bottom of the pond,
and Burns was told there were bruises around his neck. Id. Crawley was convicted
for the murder of Taylor. Although no charges were brought against Crawley for the
death of Burns’s father, Burns “always thought” that Crawley had killed her father.
App. 58; accord App. 60 (“I just always thought that my father was killed.”).
9
At the Rule 32 Hearing, Burns testified that her feelings about her father’s
death had been very strong even in 1994, when she sat as a juror in McWhorter’s
trial. App. 60; see also App. 59 (agreeing that her “memories of what happened to
[her] father were and still are traumatic”). And she admitted that she had discussed
with fellow jurors her feelings about “the man that that had killed [her] father—[she]
thought that had killed [her] father and another man did not serve the full time that
he was in there,” and that she believed that Crawley had been insufficiently
punished. App. 60. When pressed about her failure to disclose these beliefs during
voir dire, she offered multiple inconsistent explanations. She testified that: (i) her
father was not in her mind when she completed the questionnaire; (ii) she thought he
was not a crime victim because he was drowned, not murdered; (iii) she thought he
was not a crime victim because no one was charged or convicted with his murder.
And she testified that, in any event, she had voted for McWhorter’s guilt and for the
imposition of the death penalty based on the evidence presented during the guilty
phase, not on account of any thoughts about her father. App. 62.
At the Rule 32 Hearing, however, a second juror, April Stonecypher, offered
testimony that contradicted Burns’s post-hoc claims that, at the time of McWhorter’s
trial, she did not believe her father was a murder victim. Stonecypher recounted in
detail that Burns had emotionally told her fellow jurors of her father’s murder:
Linda [Burns] was standing, and she started telling a story about how
years before . . . her father had been murdered, and that, to my best
recollection, he wasn’t—I’m not sure if he went to jail or he didn’t go to
jail, but she now had to walk around in the same town where this
man was that killed her father. And she was crying . . . She had
made a comment that, basically, you just don’t know how it feels to have
10
to walk around and be around this person that has done this . . .
[r]eferring to the person that had killed her father.
App. 488-89 (emphasis added). The State objected to the admission of Stonecypher’s
testimony, but the Circuit Court admitted it to establish Burns’s state of mind, and
the testimony was neither controverted nor impeached.
App. 475-79, 484-89.
Although the Alabama Court of Appeals took note of the State’s objection to the
admission of the evidence, it did not reverse the order of the Circuit Court admitting
it, even over the State’s argument that the evidence should have been excluded. App.
139.
2. McWhorter’s Ineffective Assistance Claim stemmed from his trial counsel’s
failure to conduct a reasonable mitigation investigation. As established at the Rule
32 Hearing, aside from speaking with McWhorter himself, trial counsel’s mitigation
investigation consisted of a single, two-hour interview, eleven days before trial was
set to begin (more than nine months after counsel had been appointed) in which
counsel jointly interviewed McWhorter’s mother, aunt, and 16-year-old half-sister.
Trial counsel did not pursue leads generated during the interview.
Nor did trial counsel conduct any other mitigation investigation. Trial counsel
did not hire a mitigation specialist or investigator or to seek McWhorter’s medical
records, school records, juvenile offender records, or social services records; trial
counsel likewise failed to obtain the criminal records of McWhorter’s family
members, 4 trial counsel did not speak with McWhorter’s friends, coaches, or
Counsel received documents from the State as part of standard discovery procedures, and
separately obtained the medical records from the evening after the crime, when McWhorter was
hospitalized due to an apparent suicide attempt.
4
11
schoolteachers—four of whom (Amy Battle (friend), Tiffany Long (friend), Frank
Baker (coach), and Ken Burns (teacher))—testified at the Rule 32 Hearing about
McWhorter’s background, friendships, and kindness, and would have been willing to
testify had they been called at the penalty phase of McWhorter’s trial. In fact, counsel
testified that they did not see any purpose in learning about their client from his
friends and teachers:
Q:
So did you go back and talk to, for example, Mr. Baker, his
junior high school coach? Mr. Baker?
A:
No.
Q:
Did you go back and talk to any of the homeroom teachers he
had who could have talked about Casey?
A:
Sir, I don’t know how his homeroom teachers would have
anything to do with this, but, no, I did not speak to them.
Q:
. . . At the time, it didn’t occur to you that his homeroom
teachers in his school year would have had something to say
that he had been a good guy in the past; is that right?
A:
I saw no reason to believe that his homeroom teachers
would have contributed in any way pro or con to the
commission of a capital murder.
App. 491-92. Likewise, even though counsel knew that McWhorter had a number of
girlfriends, counsel did not so much as learn their names, let alone attempt to talk to
them. And counsel’s misunderstanding that “[m]ost of [McWhorter’s] friends were
charged with murder,” App. 490, prevented them from putting on any meaningful
mitigation case and was attributable to their demonstrated disinterest in their client.
Trial counsel testified that their “strategy” was to present McWhorter as a
“good kid [in a] bad crowd.” The sole basis for their decision was McWhorter’s youth
and clean-cut appearance, rather than any aspect of McWhorter’s background (about
12
which counsel knew virtually nothing). Had trial counsel conducted an adequate
mitigation investigation, they would have uncovered evidence that could have
garnered sympathy for McWhorter during the penalty and sentencing phases of the
trial by showing that he was a gentle, guileless boy. McWhorter established as much
at the Rule 32 Hearing, marshalling medical and school records, records from the
Department of Human Resources, and eight new and previously un-interviewed
mitigation witnesses. These records and witnesses were all available at the time of
sentencing, and many of these witnesses would have provided substantial support to
trial counsel’s “good kid, bad crowd” theme, which was otherwise little more than a
slogan. They revealed that McWhorter, despite difficult family circumstances that
contributed to his self-destructive behavior that included “huffing” gasoline from age
eight, had been a dedicated student and athlete in junior high and remained a kind
and loyal friend even during the time that he was detained pending trial in this case.
C.
ALABAMA COURTS DENY POST-CONVICTION RELIEF
The Circuit Court and the Alabama Court of Criminal Appeals (“CCA”) rejected
McWhorter’s arguments. With respect to the Biased Jury Claim, the courts concluded
that Burns had not intentionally lied on the voir dire questionnaire, and that, in any
event, Burns’s presence on the jury did not cause actual prejudice to McWhorter.
App. 139-42, 197-200. With respect to the Ineffective Assistance Claim, the courts
determined that the trial counsel developed an appropriate strategy and additional
mitigation evidence would not have changed the result. App. 160-63, 227-52.
13
D.
THE FEDERAL DISTRICT AND APPELLATE COURTS DENY
HABEAS RELIEF
The District Court denied McWhorter’s habeas petition, concluding that the
Alabama courts had not made unreasonable fact findings or run afoul of clearly
established federal law. App. 40, 62, 81. The Eleventh Circuit affirmed and denied
rehearing. App. 20, 24, 34-35.
With respect to the Biased Jury Claim, in evaluating whether the CCA
reasonably found that Burns was honest in response to the voir dire question (the
first step in the McDonough analysis), the Eleventh Circuit explicitly refused to
consider Stonecypher’s testimony. App. 20. Referring to the State’s argument that
Stonecypher’s testimony could not be considered by the Court “under Alabama Rule
of Evidence 606(b),” the court opined that “[w]e need not reach that issue here,”
because “Burns’s testimony about her state of mind during voir dire provides evidence
to support the Rule 32 court’s factual findings and credibility determinations.” Id.
In deciding whether the CCA applied a constitutionally sufficient standard in its
evaluation of McWhorter’s Biased Jury Claim, the Eleventh Circuit concluded that
the Alabama courts’ requirement that McWhorter show prejudice caused by the
presence of a biased juror was consistent with McDonough. App. 22-23.
With respect to McWhorter’s Ineffective Assistance Claim, the Eleventh
Circuit held that trial counsel’s mitigation investigation had been sufficient, excusing
counsel’s failure to contact a teenage defendant’s friends, teachers, and half of his
family, on the ground that counsel were not specifically told to do so by the members
of McWhorter’s family whom counsel interviewed.
14
App. 29, 31.
In a footnote,
however, the Eleventh Circuit highlighted that trial counsel had misunderstood the
nature of mitigation proceedings:
We take a moment to note, however, that to the extent Mr. McWhorter’s
trial counsel suggested this sort of evidence fell outside the universe of
acceptable mitigation evidence, that understanding is at odds with
our precedent. The rule is that mitigating evidence includes any
aspect of a defendant’s character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a sentence less
than death.
App. 30 n.4 (emphasis added).
REASONS FOR ALLOWANCE OF THE WRIT
Three errors in this capital case merit this Court’s attention and correction.
The first two stem from McWhorter’s Biased Jury Claim. First, by declining to
consider evidence considered by the state court, the Eleventh Circuit violated the
fundamental principle that a federal court considering a habeas petition must
consider all the evidence that was considered by the State court when evaluating the
reasonableness of related fact findings.
Second, the Eleventh Circuit’s misinterpreted McDonough’s second step
(namely, that “a correct response would have provided a valid basis for a challenge
for cause,” McDonough, 464 U.S. at 556), to require McWhorter to establish that he
was actually prejudiced by the presence of the challenged juror, Burns. This error
impermissibly converted McDonough’s ex ante element into an ex post requirement,
focusing on Burns’s after-the-fact testimony that her father’s status as a murder
victim had not influenced her deliberations as a juror.
15
Third, under clearly established precedent of this Court, a defendant is denied
effective assistance of counsel if trial counsel fails to “conduct a thorough
investigation of the defendant’s background” to prepare for the penalty phase of
proceedings. Rompilla v. Beard, 545 U.S. 374, 393 (2005); Williams v. Taylor, 529
U.S. 362, 396, 399 (2000); Strickland v. Washington, 466 U.S. 668, 690 (1984). Here,
counsel undertook a cursory investigation just days before the trial was to begin,
likely because counsel did not understand what mitigation evidence was, and
therefore never bothered to consider speaking with the most obvious players in
McWhorter’s life such as his friends, teachers, and coaches.
A.
THE DECISION BELOW FAILED TO CONSIDER THE WHOLE
RECORD IN EVALUATING MCDONOUGH’S FIRST PRONG
To establish a juror bias claim, a defendant must prove (1) “that a juror failed
to answer honestly a material question on voir dire,” and (2) “that a correct response
would have provided a valid basis for a challenge for cause.” McDonough, 464 U.S.
at 556. Thus, “[i]f a juror was dishonest during voir dire and an honest response
would have provided a valid basis to challenge that juror for cause, the verdict must
be invalidated.” Warger v. Shauers, 574 U.S. 40, 45 (2014) (internal citation omitted).
The Eleventh Circuit erred in its evaluation of the first step of the McDonough
test by failing to consider the most important and undisputed evidence in the record:
Stonecypher’s testimony about exactly what Burns had told the rest of the jury about
her father’s murder. Stonecypher’s testimony goes to the heart of whether Burns lied
during voir dire. The Eleventh Circuit declined to consider Stonecypher’s testimony
because it found that there was other “evidence to support” the State courts’
16
determination that during the jury selection Burns had either forgotten about her
father’s murder or was unaffected by it. App. 20.
1. By ignoring Stonecypher’s testimony, the Eleventh Circuit abdicated its
duty under AEDPA. AEDPA’s text requires an assessment of whether the state
court’s factual determination was reasonable “in light of the evidence presented in
the State court proceedings”—not in light of only some of the evidence. 28 U.S.C.
§ 2254(d)(2). By ignoring the key evidence in McWhorter’s Rule 32 presentation, the
Eleventh Circuit’s analysis of the factual findings was inherently flawed based on the
statutory language standing alone.
2. Furthermore, the Eleventh Circuit’s analysis flies in the face of this Court’s
precedents interpreting the Section 2254(d)(2) standard.
When articulating the
Section 2254(d)(2) standard, this Court has spoken to the review of the
reasonableness of the state court’s fact findings based on review of “the record,” not
portions of the record. E.g., Brumfield v. Cain, 576 U.S. 305, 314 (2015) (“Here, our
examination of the record before the state court compels us to conclude that both of
its factual determinations were unreasonable.”).
Consistent with this stated
standard, when deferring to a state court’s factual findings, this Court has done so
after “reviewing all of the evidence.”
Wood v. Allen, 558 U.S. 290, 303 (2010)
(emphasis added). By stopping its inquiry at Burns’s word alone, and refusing to
consider unimpeached evidence that contradicted her post-hoc explanation of her
prior beliefs, the Eleventh Circuit failed to carry out AEDPA’s review standard.
Accepting the Eleventh Circuit’s error would improperly transform habeas deference
17
into “abdication of judicial review,” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003),
permitting a federal court to close the book as soon as it found any evidence that could
arguably support a state court’s fact findings regardless of whether the state court’s
findings were reasonable in light of the record as a whole.
3. This failure to consider Stonecypher’s testimony was critical. The Eleventh
Circuit noted that Burns’s testimony about her belief as to her father’s death “was
equivocal.” App. 16. Stonecypher’s testimony was not. It revealed that, at the time
of McWhorter’s trial, Burns believed that her father was murdered. In other words,
consideration of Stonecypher’s testimony compels the conclusion that the CCA acted
unreasonably by finding that Burns told the truth during voir dire. During the Rule
32 Hearing, Burns offered internally inconsistent explanations for failing to disclose
her father’s death, including that she had forgotten about her father’s murder and
that she was not sure he had been murdered. Stonecypher’s testimony makes clear
that it was unreasonable for the state court to accept Burns’s characterizations, and
to find that Burns had not lied to get on the jury. See Miller-El, 537 U.S. at 340 (“[A]
federal court can disagree with a state court’s credibility determination and, when
guided by AEDPA, conclude the decision was unreasonable or that the factual
premise was incorrect by clear and convincing evidence.”). Stonecypher confirmed
that, mere days after the voir dire, Burns was acutely aware of her father’s status as
a murder victim. Crying, Burns stood up in the jury room and “started telling a story
about how years before her father had been murdered,” and that she had seen the
murderer eventually walk free down a city street. App. 488-89. And she told the rest
18
of the jurors that “[they] just don’t know how it feels to have to walk around and be
around . . . the person that had killed her father.” Id. Stonecypher’s testimony about
the incident has never been contradicted, nor has anyone offered any explanation
about how Stonecypher could have known these details unless told them by Burns
herself at the time of the trial. And no one—not the State, not the Alabama courts,
and not the Eleventh Circuit—has explained how Burns could have honestly failed to
answer “my father was a crime victim,” and yet just days later tell the entire jury,
“my father was murdered, and his murderer walked free.”
Instead, each court
pretended that the testimony never happened.
4. There is simply no justification for ignoring this evidence. At the Rule 32
Hearing, the State objected to the admission of Stonecypher’s testimony on the
grounds that the testimony was barred by Alabama Rule of Evidence 606(b). App.
474-75. But the Alabama trial court admitted the testimony for the limited purpose
of determining Burns’s state of mind, and—despite arguments by the State that the
Circuit Court had erred by considering the evidence—the Alabama Court of Criminal
of Appeals did not find error in the trial court’s admission of the testimony. App. 139,
474-75, 484-89.
Even if the State courts considered Stonecypher’s testimony in
violation of Alabama evidence law, the Eleventh Circuit would still be required to
consider it because federal courts “are not empowered” to examine or correct those
state court decisions about an Alabama Rule of Evidence. Leverett v. Spears, 877 F.2d
921, 925 (11th Cir. 1989). Because Stonecypher’s testimony was part of the record, it
had to be considered. And when the Eleventh Circuit stated that it would not “reach”
19
the State evidentiary law “issue” of the admissibility of Stonecypher’s testimony
because it could affirm based solely on Burns’s own testimony, the court merely
highlighted that it was failing to consider the entire record. App. 20.
The Eleventh Circuit’s error on a fundamental and recurring issue regarding
the proper review under Section 2254(d)(2) merits granting certiorari.
B.
THE DECISION BELOW ERRONEOUSLY APPLIED MCDONOUGH’S
SECOND STEP
The CCA erred in another fundamental way at McDonough’s second step: In
evaluating McWhorter’s Biased Jury Claim, the CCA never asked the constitutionally
required question of whether an honest answer from Burns would have provided a
“valid basis for a challenge for cause.” 464 U.S. at 556. Instead, the CCA asked
whether Burns’s deceit “might have . . . prejudiced” McWhorter.
App. 140. The
Eleventh Circuit determined that the CCA’s inquiry was “in accordance with
McDonough,” App. 22, but it was not.
McDonough asks whether, measured
prospectively, a dishonest answer would provide grounds for a for-cause challenge.
464 U.S. at 556. The test that the CCA applied in this case was a retrospective test,
which asked whether the dishonest answer had an effect on the verdict actually
rendered. App. 141-42.
1. As demonstrated above, the entire record (i.e., the record including
Stonecypher’s testimony) establishes that Burns was dishonest when she said during
voir dire that she had no family members who were crime victims.
Under
McDonough, the CCA should then have asked whether a correct answer in voir dire
would have provided McWhorter “with a valid basis [to] challenge [Burns] for cause.”
20
464 U.S. at 556. But the CCA never asked that question. Instead, it engaged in a
freewheeling “interests” “balanc[ing]” inquiry, asking whether McWhorter “might
have been prejudiced” by Burns’s lie. App. 139-41. 5 In answering this question, the
CCA focused almost exclusively on Burns’s years-later testimony at the Rule 32
Hearing that she had, in fact, been an unbiased juror. App. 141. The CCA’s nearexclusive reliance on Burns’s testimony ignores that the “the bias of a juror will rarely
be admitted by the juror himself, partly because the juror may have an interest in
concealing his own bias and partly because the juror may be unaware of it,” and thus
bias often “necessarily must be inferred from surrounding facts and circumstances.”
McDonough, 464 U.S. at 558 (Brennan, J., concurring) (internal quotations and
citation omitted); see generally David Yokum et. al., The Inability to Self-Diagnose
Bias, 96 DENV. L. REV. 869 (2018). 6
2. The CCA test was more demanding than McDonough’s second prong. The
most relevant record evidence regarding the second McDonough step came from
McWhorter’s principal trial counsel, who testified that had Burns answered honestly,
he would “probably have challenged her for cause.” And had Burns admitted that her
father was a murder victim during voir dire for a capital murder case, there is nothing
to suggest that trial counsel’s unmade challenge would have lacked “a valid basis.”
Though the CCA decided that Burns had not lied (while failing to address Stonecypher’s
testimony), as explained above, it addressed the second prong of McDonough as an alternative holding.
App. 140.
5
And, of course, if Burns lied to get herself onto McWhorter’s jury, that necessarily impacts any
analysis of prejudice, as implicitly recognized by the Eleventh Circuit itself. See App. 17 (“Often, the
juror’s dishonesty in and of itself is ‘a strong indication’ that she was not impartial.” (quoting United
States v. Perkins, 748 F.2d 1519, 1532 (11th Cir. 1984)).
6
21
Id. at 556; see id. at 554 (“Demonstrated bias in the responses to questions on voir
dire may result in a juror being excused for cause.”); cf. Wainwright v. Witt, 469 U.S.
412, 424 (1985) (“[T]he proper standard for determining when a prospective juror may
be excluded for cause because of his or her views on capital punishment . . . is whether
the juror’s views would ‘prevent or substantially impair the performance of his duties
as a juror in accordance with the instructions of his oath.’”).
3. The question of whether a challenge for cause would have had a “valid basis”
is plainly an ex ante inquiry, focusing on whether trial counsel would have had a valid
basis at the time of voir dire. The test does not involve asking whether the juror’s
bias actually changed the result of the trial, or whether their years-later testimony
could assuage any concerns with the outcome. Rather, like the standard for judicial
bias, the inquiry is into whether—had the truth been known—the juror objectively
appeared to hold a relevant bias such that she could have been challenged for cause.
Cf. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 872 (2009) (“Under our
precedents there are objective standards that require recusal when ‘the probability
of actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.’”); Gacho v. Willis, 986 F.3d 1067, 1068 (7th Cir. 2021)
(“Evidence that the presiding judge was actually biased is sufficient to establish a
due-process violation but it’s not necessary.”). Nothing about McDonough suggests
that defendants must establish ex-post prejudice.
4. But that is precisely what the CCA demanded. It did not focus on what
occurred during voir dire, or even what would have occurred had Burns given an
22
honest answer. App. 142. Not once did the Alabama Court of Criminal Appeals even
pose the question of whether McWhorter would have had a valid basis to challenge
Burns for cause, and not once did it explain how Burns could not have been challenged
for cause if the truth had been known. Instead, it focused exclusively on whether
Burns’s presence on the jury had in fact prejudiced McWhorter, based on her yearslater testimony that she had not allowed her feelings to affect her vote. Id.
5. The Eleventh Circuit wrongly stated that the CCA’s “might-have-beenprejudiced standard” “mirror[ed]” prior Eleventh Circuit case law. App. 22 (quoting
United States v. Carpa, 271 F.3d 962, 967 (11th Cir. 2001) (per curiam)). But as
shown above, the CCA asked a fundamentally different question than that posed by
McDonough or those Eleventh Circuit cases. The severe consequences of changing
an ex ante question to an ex post one cannot be overstated. What juror would say,
after the fact, that they allowed their feelings to influence their vote? Sanctioning
the use of a post-hoc “actual bias” requirement would completely eviscerate
McDonough and the right to an impartial jury. Such a requirement offends this
Court’s established constitutional threshold for an impartial jury.
C.
COUNSEL’S MITIGATION INVESTIGATION COULD NOT HAVE
BEEN ADEQUATE WHERE COUNSEL DID NOT UNDERSTAND THE
MEANING OF MITIGATION EVIDENCE
It is now hornbook law that a penalty-phase strategy is only as reasonable as
the investigation that gave rise to it. See Strickland, 466 U.S. at 690-91. Strategic
choices made after a “less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” Id. at 691. Yet as acknowledged by the Eleventh Circuit’s opinion,
23
trial counsel did not even understand the meaning of mitigation evidence. Thus, trial
counsel’s reasons for declining to pursue obvious leads were plainly not “supported
by reasonable professional judgments”—or even an understanding of what mitigation
evidence was. That misunderstanding then led trial counsel to perform a less than
complete investigation. Indeed, as the Eleventh Circuit recognized, the purpose of a
mitigation investigation “is to find witnesses to help humanize the defendant, given
that a jury has found him guilty of a capital offense. App. 30 n.4 (citing Hardwick v.
Crosby, 320 F.3d 1127, 1163 (11th Cir. 2003)). But at the Rule 32 Hearing, trial
counsel openly testified that he “saw no reason to believe that [McWhorter’s teachers]
would have contributed in any way pro or con to the commission of capital murder,”
and that he saw “[no] reason at all” that any of McWhorter’s friends would have had
anything relevant to say about McWhorter’s character. App. 492. Such testimony
fundamentally contradicts the notion that trial counsel’s mitigation investigation was
reasonable.
1. For ineffective assistance of counsel claims like McWhorter’s, courts must
consider “whether the investigation supporting counsel’s decision not to introduce
mitigating evidence . . . was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 523
(2003) (emphasis in original). The reasonableness of the investigation is “objective,”
measured against “‘prevailing professional norms.’” Id. (quoting Strickland, 466 U.S.
at 688).
2.
Here, trial counsel’s mitigation investigation was paltry:
A two-hour,
simultaneous interview of McWhorter’s mother, aunt, and half-sister, which took
24
place a mere eleven days before trial began and was not followed by further
interviews, document subpoenas, or investigation. Counsel did not even discuss the
information elicited from the interview with McWhorter. Trial counsel first settled
on a purported strategy—“good boy, wrong crowd”—without doing any meaningful
investigation, and then barely looked for supporting evidence. As a consequence, trial
counsel’s presentation at the penalty phase was a token effort rather than a
compelling portrait of a good kid who fell in with the wrong crowd. Setting aside
McWhorter’s aunt and mother, who the jury could easily infer had obvious bias, the
two other mitigation witnesses were not friends, mentors, or teachers, but mere
acquaintances. One, who owned a local restaurant where McWhorter briefly worked
as a busboy for “a month or so,” “on weekends,” a “few years ago,” hardly knew
McWhorter. 7 App. 387. The other had worked with McWhorter at a grocery store,
though she did not recall when McWhorter had worked there.
App. 382.
And
although she testified that he was “one of the better bag boys” and a hard worker,
App. 382, she did not say that his life deserved to be spared. In fact, she did not have
any comments at all when asked, at the conclusion of her brief testimony, whether
there was anything more she wanted the jury to know. App. 385. The presentation
of witnesses with so little contact with McWhorter necessarily suggested to the jury
that there was no one else in his life who could speak to his credit—which could not
be further from the truth.
The Eleventh Circuit took issue with McWhorter’s “conclusory” statement that McWhorter’s
former boss and co-worker “barely” knew McWhorter, App. 28, but the witness testimony corroborates
McWhorter on this point. App. 382-85, 386-89.
7
25
3. Trial counsel’s decisions were not supported by “reasonable professional
judgments.” Strickland, 466 U.S. at 690-91. To the contrary, those decisions were
fatally uninformed because trial counsel did not understand what mitigation evidence
was.
Nor is this a case where, despite their fundamental misunderstanding of
mitigation evidence, counsel accidentally conducted a reasonable mitigation
investigation. Rather, their ignorance led them to fail to investigate even the most
obvious mitigation leads, resulting in a plainly constitutionally inadequate mitigation
investigation.
4.
The consequences to McWhorter were dire. There was a significant
amount of mitigation evidence available had counsel known to, and chosen to, look
for it. At the post-conviction hearing, McWhorter presented four witnesses—Frank
Baker (coach), Tiffany Harper Long (former girlfriend), Amy Battle (friend), and Ken
Burns (teacher)—who would have much more strongly supported the “good kid,
wrong crowd” theory. Their testimony would have been completely different from the
restaurant owner and grocery store worker who barely knew McWhorter. It would
have given insight into what McWhorter was like growing up and what kind of a
friend he was, even under the most difficult circumstances. For example, Battle rode
a school bus with McWhorter for three hours every day when they were teenagers.
They were drawn to each other because they both had stepfathers. She described him
as “funny and outgoing and flirty,” a “great kid,” and a “very protective” brother to
his half-sister. Unlike the restaurant owner and grocery store worker, Battle had no
trouble providing personal details and moving testimony about McWhorter.
26
5. At the Rule 32 Hearing, McWhorter also presented other witnesses who
could have engendered sympathy for him by testifying about his dire family situation
when he was a young child, including his potentially brain-debilitating gas-huffing
from the age of eight. Counsel never sought out any of these witnesses because—
although “[t]he primary purpose of the penalty phase is to insure that the sentence
is individualized by focusing [on] the particularized characteristics of the defendant,”
Cunningham v. Zant, 928 F.2d 1006, 1019 (11th Cir. 1991)—counsel could not see the
witnesses’ relevance. App. 492.
6. Trial counsel’s basic misapprehension of mitigation evidence law itself
belies any suggestion that their decision not to pursue mitigation evidence was
reasonable. As the Eleventh Circuit noted, counsel was under the fundamental
misimpression that basic evidence about McWhorter’s background and personality
from people who knew him and cared for him—somehow “fell outside the universe of
acceptable mitigation evidence.” App. 30 n.4. That trial counsel had so basic a
misunderstanding of the relevant law for mitigation evidence when investigating a
death penalty case establishes that their investigation was constitutionally deficient.
7. The jury—which voted by the thinnest possible margin in favor of the death
penalty, and even then, only after being told by the judge that further delay would
impose costs on the state—was deprived of evidence showing that 18-year-old
McWhorter was a victim of his circumstances, a showing that likely would have
humanized McWhorter and garnered enough sympathy to convince the jury to spare
his life. Such evidence would have elicited sympathy for, or at least an understanding
27
of, McWhorter. This is precisely the type of evidence that both the Supreme Court
and the Eleventh Circuit have regularly held relevant to mitigation. E.g., Rompilla,
545 U.S. at 390-91 (faulting petitioner’s trial counsel for failing to discover evidence
of the petitioner’s traumatic childhood); Hitchcock v. Dugger, 481 U.S. 393, 397, 399
(1987) (faulting the court for refusing to consider the petitioner’s history of inhaling
fumes); Hardwick v. Crosby, 320 F.3d 1127, 1164, 1189 (11th Cir. 2003) (“[W]e have
decided that failure to present mitigation evidence as to a defendant’s family
background . . . and drug abuse at the penalty phase of a capital case constitutes
ineffective assistance of counsel . . . .”). Instead, here, as in Rompilla, trial counsel’s
actual mitigation presentation was little more than “few naked pleas for mercy.” 545
U.S. at 393.
8. Trial counsel’s failure to present available but unsearched for mitigation
evidence deprived the jurors of a fuller understanding of McWhorter. By virtue of
trial counsel’s basic misapprehension of the law of mitigation evidence, they failed to
investigate the most obvious facets of McWhorter’s life. And that failure, in turn, led
counsel to present almost no relevant evidence at the penalty phase, effectively
assuring that the facts of the crime, rather than the compelling circumstances of
McWhorter’s entire life, would be foremost in the jury’s deliberations. 8
CONCLUSION
For all the foregoing reasons, Petitioner respectfully requests that the
Supreme Court grant review of this matter.
8
The Eleventh Circuit did not analyze the prejudice prong of Strickland. App. 34-35.
28
Respectfully submitted,
Dated:
March 17, 2021
Benjamin Rosenberg
Counsel of Record
DECHERT LLP
Three Bryant Park
1095 Avenue of the Americas
New York, New York 10036
Tel: 212-698-3500
Fax: 212-698-3599
benjamin.rosenberg@dechert.com
Sam H. Franklin
LIGHTFOOT, FRANKLIN &
WHITE, LLC
The Clark Building
400 20th Street North
Birmingham, Alabama 35203
Tel: 205-581-0720
Fax: 205-380-9120
Robert C. Newman
THE LEGAL AID SOCIETY
199 Water Street
New York, New York 10038
Tel: 212-577-3354
Fax: 212-509-8481
Attorneys for Petitioner
29
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.