Appendix — Smith v. Mason (No. 09-74)
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\ 09-74 Jui 2 0 2009
No. 09- OFFICE OF THE CLERK
In the Supreme Court of the Anited States
KEITH SMITH, WARDEN,
Petitioner,
V.
MAURICE MASON,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
APPENDIX
RICHARD CORDRAY
Attorney General of Ohio
BENJAMIN C. MIZER*
Solicitor General
*Counsel of Record
ELISABETH A. LONG
Deputy Solicitor
ADAM VAN HO
Assistant Attorney General
30 East Broad St., 17th FI.
Columbus, Ohio 43215
614-466-8980
614-466-5087 fax
benjamin.mizer@
ohioattorneygeneral.gov
Counsel for Petitioner,
Keith Smith, Warden
TABLE OF CONTENTS
Page
Appendix A: Order Granting a Conditional
Writ of Habeas Corpus, United States
District Court for the Northern District of
Ohio, Western Division, May 18, 2009..................... la
Appendix B: Order Denying Rehearing En
Banc, United States Court of Appeals for the
Sixth Cireuit, February 19, ZOO. .:....6cccciccccovcconececsas eel
Appendix C: Opinion Granting a Conditional
Writ of Habeas Corpus, United States Court
of Appeals for the Sixth Circuit, October 3,
as son sileuaehe seiguceuintcercgsuaistenetreae ee 08
Appendix D: Opinion and Order on Remand,
United States District Court for the
Northern District of Ohio, Western Division,
COCR Bi, Be x vissivscisccstentee eee eee 60a
Appendix E: Opinion Remanding for an
K/videntiary Hearing, United States Court of
Appeals for the Sixth Circuit, February 6,
|. 5 SRO IRR ice Lge ged ee alana etiet eee ee LOda
Appendix F: Opinion, United States District
Court for the Northern District of Ohio,
Western Division, May 9, 2000
Appendix G: Opinion, Ohio Supreme Court,
Re EE, Five coxacs chien vidoes ae 297a
11
Appendix H: Letter from Jim Slagle, Marion
County Prosecuting Attorney, to ‘led Coulter
describing more than 300 documents
provided to the defense, dated January 19,
EE 345a
la
APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
CASE NO. 1:99CV524
MAURICE MASON,
Petitioner,
V.
BETTY MITCHELL, WARDEN,
Respondent.
ORDER
KATZ, J
Dated: May 18, 2009
The Court held a telephone conference on May
15, 2009. This matter is before the Court on remand
from the Sixth Circuit Court of Appeals. On October
7, 2008, the Sixth Circuit reversed the Court’s
opinion, remanded this matter to the Court, and
ordered it to 1ssue an conditional writ of habeas
corpus’ vacating Petitioner, Maurice Mason’s
(“Mason”) death sentence unless the state of Ohio
commences 2 new penalty-phase trial against him
within 180 days “from the date that the judgment in
this matter becomes final.” Mason v. Mitchell, 543
F.3d 766, 785 (6th Cir. 2008). The Sixth Circuit then
issued its Mandate Order on February 27, 2009.
(Doc. No. 238.) Although the Respondent filed an
untimely Motion to Stay or Recall the Mandate, the
Sixth Circuit denied the Motion on May 6, 2009.
(Doc. No. 241.)
In accordance with the Mandate Order fron
the Sixth Circuit, a conditional writ of habeas corpus
is hereby granted as to Mason's sentence of death.
The Respondent shall either: (1) set aside Mason’s
death sentence; or (2) conduct another mitigation
hearing. This shall be done within 180 days from
May 6, 2009, the date upon which the Court finds the
judgment in this matter became final.
IT IS SO ORDERED
s/ David A. Katz
U.S. DISTRICT JUDGE
Dated: May 18, 2009
3a
APPENDIX B
No. 05-4511
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Filed: February 19, 2009
MAURICE A. MASON,
Petitioner-Appellant,
Vv.
BETTY MITCHELL, WARDEN,
Respondent-Appellee.
Before: BOGGS, Chief Circuit Judge; MOORE and
CLAY, Circuit Judges.
The court having received a_ petition for
rehearing en banc, and the petition having been
circulated not only to the original panel members but
also to other active” judges of this court, and no judge
of this court having requested a vote on the
suggestion for rehearing en banc, the petition for
rehearing has been referred to the original panel.
The panel has further reviewed the petition
for rehearing and concludes that the issues raised in
the petition were fully considered upon the original
* Judge Cook recused herself from participating in this ruling.
4a
submission and decision of the case. Accordingly, the
petition is denied. Chief Judge Boggs would grant
rehearing for the reasons stated in his dissent.
ENTERED BY ORDER OF THE COURT
s/Leonard Green
Clerk
—
Ja
APPENDIX C
RECOMMENDED FOR
FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
No. 05-4511
File Name: 08a0356p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MAURICE A. MASON,
Petitioner-Appellant,
v.
BETTY MITCHELL,
Respondent-Appellee.
No. 05-4511
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 99-00524 — David A. Katz, District Judge.
Argued: November 28. 2007
B :
Decided and Filed: October 3, 2008
Before: BOGGS, Chief Judge; MOORE and CLAY,
Circuit Judges.
6a
COUNSEL
ARGUED: David C. Stebbins, LAW OFFICES,
Columbus, Ohio, for Appellant. Adam Michael Van
Ho, OFFICE OF THE OHIO ATTORNEY
GENERAL, Cleveland, Ohio, for Appellee.
ON BRIEF: David C. Stebbins, LAW OFFICES,
Columbus, Ohio, Carol A. Wright, FEDERAL
PUBLIC DEFENDER’S OFFICE, Columbus, Ohio,
for Appellant. Carol Ann Ellensohn, Matthew C.
Hellman, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court,
in which CLAY, J., joined. BOGGS, C. J. (pp. 18-22),
delivered a separate dissenting opinion.
OPINION
KAREN NELSON MOORE, Circuit Judge.
This case returns to us following the district court’s
denial of Petitioner-Appellant Maurice A. Mason’s
(‘Mason’) petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. In Mason v. Mitchell,
320 F.3d 604 (6th Cir. 2003) (“Mason TI’), we
remanded this case to the district court with
instructions to hold an evidentiary hearing regarding
Mason's claim that he received ineffective assistance
of counsel at the sentencing phase due to his
counsel's’ failure to conduct a_ reasonable
investigation into his family background. After
holding an evidentiary hearing on December 29 and
30, 2003, and January 6, 2004, the district court
7a
issued a Memorandum Opinion and Order denying
Mason’s petition on October 31, 2005. Mason ov.
Mitchell, 396 F. Supp. 2d 837 (N.D. Ohio 2005)
(“Mason II’) (Joint Appendix (“J.A.”) at 379-413).
Although Mason’s counsel reviewed records provided
by the state that contained some references to
violence and drug use in the Mason family home
during Mason’s childhood, Mason’s counsel failed to
investigate Mason's background and = essentially
conducted no interviews of any of Mason’s family
members prior to settling upon a plan for the
sentencing phase that was limited to appeals for
mercy and claims of residual doubt. We hold that
trial counsel provided ineffective assistance by
failing to interview Mason’s family members and
investigate the obvious red flags contained in state
records suggesting that Mason’s childhood was
pervaded by violence and exposure to drugs in the
home from an early age. Accordingly, we REVERSE
the judgment of the district court, GRANT Mason a
conditional writ of habeas corpus that will result in
the vacation of his death sentence unless the state of
Ohio commences a new penalty-phase trial against
him within 180 days from the date that the judgment
in this matter becomes final, and REMAND the case
for further proceedings consistent with this opinion.
I BACKGROUND
A. Facts
In Mason TI, we summarized the factual
background of this case as follows:
On February 8, 19938, Robin Dennis
(“Robin”), the nineteen-vear-old wife of Chris
Sa
Dennis (“Chris”), disappeared. l[Earher that
day, Robin and Chris had socialized with
Mason and other friends, and Chris and
Mason had discussed trading Chris's’ .22
caliber Colt Frontier Scout revolver for
Mason’s television. ‘The next day, Robin was
reported as missing to the Unie. County
Sheriffs Department; the report stated that
Mason was the last person seen with Robin.
On February 10, 1993, Deputy Sheriff
Jack Lautenslager (“Lautenslager”’) received a
report about an abandoned car in a rural! areca
of Marion County. Two days earlier,
Lautenslager had driven through that areca
and seen a black man walking, whom he later
identified as Mason. Chevron-style shoe
impressions, similar to those made by shoes
that Mason and Robin owned, were found on
the outside of the passenger door and on the
passenger's side of the dash. ‘l'ype-B blood,
Robin’s blood type, was found on the inside of
the passenger door. A set of keys, including
car keys that fit a 1981 Chrysler owned by
Mason's wife, was on the car’s front passenger
seat.
A few hours alter this discovery, Dennis
Potts (“Potts”) of the Marion County Sheriff's
Department questioned Mason about Robin's
disappearance. This interview took place at
the detective’s office of the Sheriffs
Department and lasted for eighteen minutes.
On February 12, 1993, following up = on
information from other interviews, Potts
Ga
questioned Mason again. The second
interview took place in a_ basement
interrogation room and lasted, with pauses in
the questioning, for four hours. Mason
appears to have understood that he was not
under arrest at this time. After the second
interview, Mason's parole officer took him into
custody for a parole violation.
On February 13, 1993, Robin’s body was
found inside an abandoned building that was
within eighteen minutes’ walking distance
from where her car had been found. She was
lying face down, wearing only a bra; her jeans
and underwear were pulled down to her
ankles. Robin’s T-shirt and car keys were
under her jacket, which was found eight feet
from her body with burrs and debris on it.
The apparent murder weapon, a blood-stained
board with protruding nails, was found twenty
fect from her body. Another piece of wood
found at the scene had strands of hair that
matched Robin's hair. On February 15, 1993,
detectives found a small blood-stained piece of
metal at the crime scene, which a firearms
examiner later concluded was identical to a
grip-frame from a .22 caliber Colt Frontier
Scout revolver and was consistent with having
come from the handle of such a revolver
On February 14, 1993, pathologist Dr.
Keith Norton (“Norton”) conducted an autopsy
and concluded that Robin had died as a result
of blunt force trauma causing multiple skull
fractures. Dr. Norton determined that the
10a
blood-stained board found at the scene and the
butt of a revolver could have caused Robin's
injuries. Dr. Norton also found sperm in
Robin’s vagina that DNA _ experts later
matched to Mason’s DNA. DNA material from
Robin’s underwear also matched Mason’s
DNA.
The experts did not find DNA from
anyone other than Robin and Mason.
Mason I, 320 F.3d at 611-12 (footnotes omitted).
B. Procedural History
Our prior decision and the district court’s
decision after our remand both’ recount’ the
procedural history of this case, see Mason I, 320 F.3d
at 612-13; Mason II], 396 F. Supp. 2d at 840-42, and
we draw upon those decisions in our summary here.
In September 1993, Mason was charged with
(1) aggravated murder, with a death penalty
specification that the murder occurred during the
commission of a rape; (2) rape, with a prior
aggravated felony specification; and (3) having a
weapon while under disability, with an offense of
violence specification. In October 1993, after finding
that Mason was indigent, the trial court appointed
Lawrence A. Winkfield (“Winkfield”) of Columbus,
Ohio, as lead counsel and Ted I. Coulter of Marion,
Ohio, as co-counsel in charge of the mitigation phase.
In December 1993, Mason was reindicted on
the same charges, with a firearm specification added
to each count, and Mason pleaded not guilty.
Mason's jury trial began on May 31, 1994, and
lla
concluded on June 18, 1994, when the jury found
Mason guilty on all three counts.
On June 27, 1994, the trial entered the
sentencing phase, and the court held a mitigation
hearing in the presence of the jury. Mason’s counsel
presented the testimony of two deputy sheriffs from
the Marion County Jail Division, who testified
regarding Mason’s good behavior during his time in
incarceration pending trial. J.A. at 712-19 (Tr. at
4237-44). Mason’s counsel presented brief testimony
from Ruby Mason, Mason’s mother, as well as his
brother, sister, and cousin. The family members
asked the jury to show mercy and to spare Mason’s
life. J.A. at 720-27 (Tr. at 4245-52). Terry Mason,
Mason’s wife, then testified, and she pleaded for
mercy and displayed for the jury some drawings that
Mason had made for her while incarcerated. J.A. at
727-30 (Tr. at 4252-55). On cross-examination, the
prosecution questioned Terry Mason regarding her
memory of events on the day of the murder. J.A. at
730-40 (Tr. at 4255-65).
Finally, Mason made an unsworn statement
on his own behalf, in which he denied killing Robin
Dennis and asked the jury to sentence him to one of
the two life sentences so that he could have “the
chance to take [his case] through the Appeals
Courts.” J.A. at 754-57 (Tr. at 4279-82). At that
point, the defense rested and the prosecution did not
offer any evidence in rebuttal.
The tnmal judge then instructed the jury
regardiiug the three possible sentences that it could
impose: (1) a sentence of death: (2) a sentence of life
imprisonment with eligibility for parole after thirty
l2a
years; and (3) a sentence of life imprisonment with
eligibility for parole after twenty years. See J.A. at
762 (Tr. at 4287). After approximately four and one-
half hours of deliberation, the jury sent a question to
the court, stating that “[w]e’re unable to reach a
unanimous decision on any one of the sentencing
options.” J.A. at 822 (Tr. at 4370); State v. Mason,
694 N.E.2d 932, 954-55 (Ohio 1998). The trial judge
then gave the jury an additional instruction about
further deliberations and asked whether there was a
possibility that the jury might reach a verdict after
an additional period of time. J.A. at 822-24 (Tr. at
4370-72). The foreman initially answered “No,” but
he agreed to discuss the possibility of continuing
deliberations with the other jurors. State v. Mason,
694 N.E.2d at 955. Then, “lajt 5:00 p.m., the jury
sent a note that they had made ‘some progress’ and
that it was ‘best to adjourn for the evening & resume
fresh in the AM.” T7d. After deliberating for
approximately thirty minutes the next morning,
June 29, 1994, the jury indicated that they had
reached a unanimous verdict. /d. The jury’s verdict
was a recommendation that Mason receive a
sentence of death.
On July 15, 1994. the trial judge accepted the
jury’s recommendation and sentenced Mason to
death for aggravated murder. J.A. at 831-32
(Judgment at 1-2). “On August 9, 1994, the trial
court heard argument on and then denied Mason’s
motion for a new trial.” Mason I, 320 F.3d at 613.
Mason filed a timely appeal in which he raised
twenty-four issues, and the Ohio Court of Appeals for
the Third Appellate District affirmed his conviction
l3a
and sentence. J.A. at 833-55; State v. Mason, 1996
WL 715840, No. 9-94-45 (Ohio Ct. App. Dec. 9, 1996).
Mason then appealed to the Ohio Supreme Court,
which also affirmed Mason’s conviction and death
sentence. J.A. at 862- 876; State v. Mason, 694
N.E.2d 932 (Ohio 1998). The Supreme Court of the
United States denied Mason’s petition for a writ of
certiorari on December 14, 1998. Mason v. Ohio, 525
U.S. 1057 (1998).
C. Procedural History—Post-Conviction
In Mason I, we summarized the course of
Mason’s state collateral attack on his conviction and
sentence as follows:
While his direct appeal was pending,
Mason filed a state collateral attack in the
Court of Common Pleas of Marion County,
asserting seven assignments of error. State uv.
Mason, 1997 WL 317431, at *1 (Ohio Ct. App.
June 6, 1997). On November 21, 1996, the
court denied relief without holding an
evidentiary hearing. /d. Mason appealed the
dismissal of his post-conviction petition to the
Court of Appeals for the Third Appellate
District, which affirmed the judgment of the
Court of Common Pleas on June 6, 1997. 7d.
at *7. Mason then filed a timely appeal to the
Ohio Supreme Court, which dismissed the
appeal on October 15, 1997, as not involving
any substantial constitutional question.
On July 15, 1999, Mason filed a petition
for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, raising twenty-five challenges
l4a
to his conviction and sentence. On May 9,
2000, the district court denied Mason’s habeas
petition and his motion for an evidentiary
hearing on various claims. Mason v. Mitchell,
95 F.Supp.2d 744, 795 (N.D. Ohio 2000). The
district court subsequently granted a
certificate of appealability as to all claims.
Mason I, 320 F.3d at 613.
Our decision in Mason I remanded Mason’s
claim of ineffective assistance at the sentencing
phase to the district court for an evidentiary hearing
but otherwise affirmed the district court’s denial of
Mason’s petition.
D. The District Court’s Evidentiary Hearing on
Remand
The district court held an evidentiary hearing
on December 29 and 30, 2003, and on January 6,
2004. The district court issued a Memorandum
Opinion and Order denying Mason’s petition on
October 31, 2005. Mason II, 396 F. Supp. 2d 837
(N.D. Ohio 2005). The district court provided a
thorough summary of the evidence and testimony
presented at the hearing. Mason IJ, 396 F. Supp. 2d
at 842-49, and we will discuss the evidence developed
at that hearing as relevant to our analysis below.
Il. ANALYSIS
A. Standard of Review
We review de novo a district court’s
determinations regarding a habeas petitioner's claim
of ineffective assistance of counsel. Higgins v.
Renico, 470 F.3d 624, 630 (6th Cir. 2006). We review
15a
any factual findings made by the district court for
clear error. Moss v. Hofbauer, 286 F.3d 851, 858 (6th
Cir.), cert. denied, 537 U.S. 1092 (2002).
The Antiterrorism and_ Effective Death
Penalty Act of 1996 (““AEDPA’). Pub. L. No. 104-132,
110 Stat. 1214 (Apr. 24, 1996), zoverns our review of
a state court’s determination of Mason’s claim
because he filed his petition for a writ of habeas
corpus after AEDPA’s effective date. Lindh ov.
Murphy, 521 U.S. 320, 326-27 (1997). AEDPA
provides that:
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.
28 U.S.C. § 2254(d)(1)-(2).
A state court decision is “contrary to’ clearly
established federal law “if the state court arrives ata
16a
conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court
decides a case differently than [the Supreme] Court
has on a set of materially indistinguishable facts.”
Terry Williams v. Taylor, 529 U.S. 362, 412-13
(2000). A state court’s decision is an “unreasonable
application” of clearly established federal law “if the
state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of
the prisoner’s case.” Id. at 413. “(Cllearly
established law under [AEDPA] encompasses more
than just bright-lne rules laid down by _ the
[Supremej Court. It also clearly includes legal
principles and standards enunciated in the Court’s
decisions.” Vaylor v. Withrow, 288 F.3d 846, 850 (6th
Cir.), cert. denied, 537 U.S. 1007 (2002). “The lack of
an explicit statement” of a rule “is not determinative”
because “[t]he Court has made clear that its relevant
precedents include not only bright-line rules but also
the legal principles and standards flowing from
precedent.” Id. at 852: see also Panetti ov.
Quarterman, 127 S. Ct. 2842, 2858 (2007) (““AEDPA
does not ‘require state and federal courts to wait for
some nearly identical factual pattern before a legal
rule must be applied.”’) (quotation omitted).
B. Clearly Established Federal Law Regarding
Ineffective Assistance of Counsel at the Sentencing
Stage
The Supreme Court's decision in Strickland v.
Washington, 466 U.S. 668 (1984), provides “the legal
principles that govern claims of ineffective assistance
of counsel.” Wiggins v. Smith, 589 U.S. 510, 521
17a
(2003). Claims of ineffective assistance of counsel
have “two components: A petitioner must show that
counsel's performance was deficient, and that the
deficiency prejudiced the defense.” /d. The Supreme
Court assesses performance using an “objective
standard of reasonableness” and = “prevailing
professional norms.” Strickland, 466 U.S. at 688.
In this case, as in Strickland, Williams,
Wiggins, and Rompilla v. Beard, 545 U.S. 374 (2005),
Mason’s “claim stems from counsel's decision to limit
the scope of their investigation into potential
mitigating evidence” to be presented at the
sentencing phase of a capital trial. Wiggins, 539 U.S.
at 521; Rompiulla, 545 U.S. at 380-81. In Williams uv.
Taylor, the Supreme Court “conciuded that counsel’s
failure to uncover and present voluminous mitigating
evidence at sentencing could not be justified as a
tactical decision . . . because counsel had not
‘fulfill[ed] their obligation to conduct a thorough
investigation of the defendant’s background.”
Wiggins, 539 U.S. at 522 (quoting Williams, 529 U.S.
at 396) (alteration in original).
The Supreme Court has also emphasized that
in analyzing a claim that counsel provided ineffective
assistance by failing to investigate mutigating
evidence, the “principal concern ... 1s not whether
counsel should have presented a mitigation case.
Rather, we focus on whether the investigation
supporting counsels decision not to introduce
mitigating evidence of [the defendant's] background
was itself reasonable.” Wiggins, 539 U.S. at 522-23.
Likewise, the Supreme Court has instructed that
“fijn assessing the reasonableness of an attorney's
18a
investigation, however, a court must consider not
only the quantum of evidence already known to
counsel, but also whether the known evidence would
lead a reasonable attorney to investigate further.”
Wiggins, 539 U.S. at 527 (emphasis added).
Therefore, even if counsel “lhmited the scope of their
investigation for strategic reasons, Strickland does
not establish that a cursory’ investigation
automatically justifies a tactical decision with
respect to sentencing strategy. Rather, a reviewing
court must consider the reasonableness of the
investigation said to support that strategy.” Jd.
Finally, in assessing the reasonableness of counsel’s
investigation, the Supreme Court has cautioned that
courts must avoid “hindsight” and that our analysis
should “include[] a context-dependent consideration
of the challenged conduct as seen ‘from counsel’s
perspective at the time.” /d. at 523 (quoting
Strickland, 466 U.S. at 689).
As to showing the second Strickland prong of
prejudice in the sentencing context, the Supreme
Court has explained that a _ petitioner may
demonstrate prejudice by establishing that “there is
a reasonable possibility that at least one juror would
have struck a different balance” had Mason’s counse]
uncovered and presented additional evidence of
Mason’s background. Wiggins, 539 U.S. at 537; State
v. Brooks, 661 N.E.2d 1030, 1042 (Ohio 1996) (“[A]
solitary juror may prevent a_ death penalty
recommendation by finding that the aggravating
circumstances in the case do not outweigh the
mitigating factors.”). The Supreme Court has
specifically observed that “the graphic description of
la defendant's] childhood, filled with abuse and
19a
privation, ... might well have influenced the jury’s
appraisal of his moral culpability.” Williams, 529
U.S. at 398.
c. Mason's Claims of Ineffective Assistance of
Counsel
Mason attacks the performance of his counsel
in several related ways, but the crux of his challenge
is that his counsel provided ineffective assistance
beeause they failed to investigate his background
and conduct any in-depth interviews of his family
members prior to the decision on June 22, 1994, to
limit the mitigation presentation to appeals for
mercy and claims of residual doubt. Mason further
contends that counsel's’ deficient performance
prejudiced him because subsequent investigation has
revealed significant additional information about
Mason’s childhood that might have humanized him
to the jury—which' had initially deadlocked
regarding his sentence—and persuaded at least a
single juror that the death penalty was not an
appropriate sentence. Finally, we must consider
whether the Ohio Supreme Court unreasonably
applied clearly established federal law in
adjudicating Mason's claim of ineffective assistance
of counsel.
We agree with Mason on all three issues, and
we analyze each in turn in the following sections.
1. Whether the Performance of Mason’s
Counsel Was Deficient
In hght of the Supreme Court's decisions
regarding what constitutes a reasonable
investigation of mitigating evidence at the
20a
sentencing stage—and of the circumstances that
trigger counsel’s obligation to investigate further—it
is clear that the performance of Mason’s counsel was
deficient and _ objectively unreasonable. The
testimony presented at the evidentiary hearing
established that Coulter, who was responsible for
handling the mitigation phase of Mason’s trial,!
selected his strategy for the mitigation hearing
during the course of a 75-minute telephone cal! with
members of the Ohio Public Defender’s Office on
June 22, 1994, just days prior to the mitigation
hearing itself, which took place on June 27, 1994.2
J.A. at 1599-1604; J.A. at 1629; J.A. at 1721-22;
Resp. Br. at 56. Therefore, the evaluation of
Coulter’s performance must focus on what knowledge
' Mason’s other counsel was Winkfield, who primarily handled
the guilt phase of Mason’s trial and testified at the evidentiary
hearing that he never interviewed any member of Mason’s
family regarding Mason's childhood or background, nor did he
interview any of Mason's teachers, children’s service workers,
or his parole officer. .J.A. at 1518-22. Mason's family members
contirmed that Winkfield never discussed Mason’s background
or childhood with them. See J.A. at 1930 (Mason's father
Michael Mason, Sr.); J.A. at 1050-51 (Mason's mother Ruby
Mason); J.A. at 1970-71 (Mason’s brother James Mason Jr.):
J.A. at 1999-2000 (Mason's sister Mioshi); J.A. at 2004-06
(Mason’s sister Michelle Floyd); J.A. at 1958-59 (Mason's cousin
Minnie Range). In addition, Winkfield testified that he did not
even review the box of state records concerning Mason that the
prosecution disclosed in discovery. J.A. at 1521. Finally,
Winkfield also testified that he was no longer licensed to
practice law, having been suspended from the practice of law by
the Ohio Supreme Court in 2001 for reasons unrelated to
Mason’s case. J.A. at 1522-23, 1541-42.
* Winkfield testified that he did not participate in the call with
the Public Defender’s office. J.A. at 1522.
2la
Coulter then possessed regarding Mason's childhood
and background and what investigation and
interviews, if any, that Coulter had performed prior
to making that decision. See Wiggins, 539 U.S. at
527 (“Strickland does not establish that a cursory
investigation automatically justifies a _ tactical
decision with respect to sentencing strategy. Rather,
a reviewing court must consider the reasonableness
of the investigation said to support that strateyy.”).
Before analyzing Coulter’s investigative
activities prior to June 22, we first outline the
minimum standards that the Supreme Court has
established for such investigations. The Supreme
Court has described “the standards for capital
defense work articulated by the American Bar
Association (ABA)” as “standards to which we long
have referred as ‘guides to determining what is
reasonable.” Wiggins, 539 U.S. at 524 (quoting
Strickland, 466 U.S. at 688). The edition of those
standards current at the time of Mason’s trial
“provide that investigations into mitigating evidence
‘should comprise efforts to discover all reasonably
available mitigating evidence and evidence to rebut
any aggravating evidence that may be introduced by
the prosecutor.’ “ Jd. (quoting ABA Guidelines for
the Appointment and Performance of Counsel in
Death Penalty Cases 11.4.1(C), p. 93 (2d ed. 1989)).
The Supreme Court's opinions in Wiggins and
Rompilla offer particularly instructive examples of
how to analyze an attorney's investigation into
mitigating evidence. In Wiggins, the Supreme Court
noted that Wiggins’s counsel reviewed state-provided
records that revealed his mother’s — chronic
DO:
alcoholism, his history of shuttling among foster
homes, his frequent and lengthy absences from
school, and an instance in which his’ mother
abandoned him and his siblings for days without
food. Wiggins, 539 U.S. at 525. However, the
Supreme Court held that Wiggins’s “|clounsel’s
decision not to expand their investigation beyond the
[state] records fell short of the professional standards
that prevailed in Maryland in 1989” because “any
reasonably competent attorney would have realized
that pursuing these leads [revealed in the state
records] was necessary to making an informed choice
among possible defenses.” /d. at 524-25. Observing
that “the Maryland Court of Appeals appears to have
assumed that because counsel had some information
with respect to petitioners background—the
information in the [state] records—they were in a
position to make a tactical choice not to present a
mitigation defense,” the Court characterized the
state court’s application of Strickland as “objectively
unreasonable” because “the |state] court did not
conduct an assessment of whether the decision to
cease all investigation upon obtaining the |statec]
records actually demonstrated reasonable
professional judgment. Id. at 527. ‘The Court
concluded that “fiJn light of what the [state] records
actually revealed, however, counsel chose to abandon
their investigation at an unreasonable juncture,
making a fully informed decision with respect to
sentencing strategy impossible.” /d. at 527-28. In
discussing the nature of the evidence that later
investigation uncovered about Wiggins’s bleak
childhood, the Court noted that a social worker had
prepared “an elaborate social history report
23a
containing evidence of the severe physical and sexual
abuse [Wiggins] suffered” and that the social worker
had relied on state records “as well as interviews
with petitioner and numerous family members.” Id.
at 516 (emphasis added). Finally, the Court
approvingly discussed the federal district court’s
conclusion that awareness of some aspects of
Wiggins'’s background “did not excuse [his counsel]
from their duty to make a ‘fully informed and
deliberate decision’ about whether to present a
mitigation case” and that, “film fact . . . their
knowledge triggered an obligation to look further.”
Id. at 519 (quoting Wiggins v. Corcoran, 164 F. Supp.
2d 538, 559 (D. Md. 2001)) (emphasis added).
The Supreme Court’s decision in Rompilla
offers a similar example regarding the obligation of
counsel to conduct an investigation into “all
reasonably available mitigating evidence’ that
includes efforts to gain information from both state
records and family members. /d. at 524 (quotation
omitted). In Rompilla, the Court noted that
Rompilla’s counsel did some investigation, which
“includ[ed] interviews with Rompilla and some
members of his family, and examinations of reports
by three mental health experts who gave opinions at
the guilt phase.” Rompilla, 545 U.S. at 381. The
Court even observed that “Rompuilla’s own
contributions to any mitigation case were minimal,”
that Rompilla at times seemed to “send[{] counsel off
on false leads,” and that “counsel spoke to the
relatives in a ‘detailed manner, attempting to
unearth mitigating intormation. ld. (quotation
omitted)
24a
Although Rompilla’s counsel certainly
conducted some investigation into his background,
the Court held that Rompilla’s counsel were deficient
because they failed to consult available public
records relating to Rompilla’s prior convictions. /d.
at 382-90. In particular, the Court faulted
Rompilla’s counsel for failing to review records
relating to a conviction for rape and assault given
the prosecutor’s announced plan to use that
conviction as a central part of the state's attempt to
prove an aggravating factor. Jd. at 383-84, 388-89.
The Court reasoned that “ijt flouts prudence to deny
that a defense lawyer should try to lock at a file he
knows the prosecution will cull for aggravating
evidence, let alone when the file is sitting in the trial
courthouse, open for the asking.” Jd. at 389. The
Court further stated that “liJf the defense lawyers
had looked in the file on Rompilla’s prior conviction,
it is uncontested they would have found a range of
mitigation leads that no other source had opened
up,” id. at 390, and the Court concluded that
“Iflurther effort {to research those leads] would
presumably have unearthed much of the material
postconviction counsel found, including testimony
from several members of Rompilla’s family, whom
trial counsel did not interview,” id. at 391 (emphasis
added).
We now turn to assessing Coulter's
investigation prior to June 22 of Mason's childhood
and background. In our previous opinion remanding
this case to the district court for an evidentiary
hearing, we stated that “[wle find inexpheable the
apparent tailure of tmal counsel to investigate
mitigating evidence in this case.” Mason J, 320 I.3d
25a
at 623 n.13 (emphasis added). We also observed that
“trial counsel’s preparation for sentencing appears to
have been limited to reviewing the documents tnat
the prosecution disclosed to them and deposing Dr.
Spare, who tried ‘to determine mitigation’ and ‘to
attempt to determine the likelihood of [Mason] being
a repeat violent offender and/or his potential for
rehabilitation.” Id. at 626 (emphasis added)
(quotation omitted); see also id. at 623 (stating that
“trial counsel does not appear to have made any
independent effort to investigate the particulars of
Mason’s_ history, character, or background’)
(emphasis added). Finally, we stated that “[t]he
alleged failure of defense counsel to prepare Mason’s
family members for their testimony at sentencing
further demonstrates that counsel conducted an
inadequate investigation of mitigating evidence.” Id.
at 623-24 (emphasis added).
The evidentiary hearing confirmed what
previously was only “apparent” or “alleged”: that
Coulter relied almost exclusively on the records
provided by the state and inexplicably failed to
conduct his own independent investigation and
interview members of Mason’s family regarding the
circumstances of his childhood and background.
Coulter confirmed that he never conducted any
indepth interviews with any of Mason’s rclatives.
J.A. at 1674-77; J.A. at 1728 (“There was no
extensive interviews.”). Although Coulter did
contact some of Mason’s family members, see J.A. at
1680 (stating he talked to various relatives “very
briefly”), the crucial point is that the evidentiary
hearing demonstrated that Coulter’s “very brief{]”
contacts with certain Mason family members
26a
occurred after June 22, the point at which Coulter
decided not to include any information about Mason’s
background or _ childhood in the _ mitigation
presentation.
Coulter kept detailed, hand-written notes of
the time that he spent working on Mason’s case, see
J.A. at 1298-1342, and Coulter’s extensive testimony
at the evidentiary hearing demonstrates that prior to
selecting his mitigation strateg.” on June 22 Coulter
did not interview members of Mason’s family.
According te Coulter’s records and his testimony, his
limited investigation essentially consisted of the
following activities, discussed in chronological order
from Coulter's appointment on October 28, 1993.
J.A. at 1266.
First, from October 1993 until early May 1994,
Coulter’s records and his testimony demonstrate that
he primarily devoted his time to seeking (and failing
to obtain) mitigation assistance from the Ohio Public
Defender’s Officer and seeking (and failing to obtain)
funding from the trial court to hire an independent
mitigation investigator. J.A. at 1549-1575
(testimony interpreting time records from October
1993 to May 5, 1994); J.A. at 1298-1307 (time sheets
for this period); Pet. Br. at 27-30.
Second, in May to June 1994, Coulter spent
time on efforts to obtain a_ brief psychiatric
examination of Mason. In early May, Coulter filed a
motion seeking funds to pay for the services of Dr.
Joseph T. Spare (“Dr. Spare”), a local psychiatrist.
J.A. at 1576-77. On May 9, the trial court approved
this request but limited the cost to $600, and
Coulter's notes from the hearing on the motion
27a
stated that the purpose of the examination was “to
find out whether [Mason] is a serial killer or
someone not to re-offend and kill again.” J.A. at
1368-69; J.A. at 1577-79 (testimony regarding notes).
After Dr. Spare examined Mason, he prepared a five-
page psychiatric report. Mason I, 320 F.3d at 620-
22. Dr. Spare based his examination and report
solely on interviewing Mason himself and limited his
evaluation solely to determining Mason’s potential
for rehabilitation and the lkelihood of future
dangerousness; Dr. Spare did not cover Mason’s
background or childhood in any great detail. J.A. at
1637. Coulter testified that the purpose of Dr.
Spare’s examination of Mason was “to see whether
[Mason] had any severe mental defects, whether he
was a repeated serial killer,” that “i]t was not for
(Dr. Spare] to go out and interview a bunch of
witnesses,” and that Dr. Spare “wasn’t to review a
bunch of records in that regard.” J.A. at 1637.°
Coulter’s preparation for the deposition included two
hours on May 19 dedicated to reviewing and copying
* Why Coulter decided to focus Dr. Spare's investigation on the
chances of Mason being a repeat offender is somewhat puzzling,
given that, according to an expert who testified at the
evidentiary hearing, “‘[ulnder Ohio law in 1993, 1994 and still
today, Ohio has no aggravating circumstance of future
dangerousness. I guess by—the flip side of that be that it is
certainly not a statutory mitigating factor.” J.A. at 1774-75;
Mason IT, 396 F. Supp. 2d at 847 (summarizing this testimony).
That Coulter channeled one of his few actual investigatory
activities toward an attempt to establish the irrelevant-—and,
indeed, potentially rebuttal-enabling proposition that Mason
was unlikely to be a repeat offender only further illustrates the
deficient nature of Coulter's performance.
28a
certain state records to give to Dr. Spare, J.A. at
1318, as well as 1.75 hours devoted to preparing for
and conducting the deposition on June 7. J.A. at
1595, 13829. June 7 was during the guilt phase of
Mason’s trial, and the deposition took place after
trial had ended for the day. J.A. at 1329 (time sheet
for June 7 reflecting six hours spent in court at trial).
After the conference with the Ohio Public
Defender’s Office on June 22, Mason’s counsel
ultimately decided to forego presenting Dr. Spare’s
deposition testimony because of fears that doing so
would open the door to damaging rebuttal evidence
that the prosecutor intended to present relating to
Mason’s history of violent conduct, allegedly
including rape, brandishing a gun, resisting arrest,
and burglary. Mason I, 320 F.3d at 624-25. We will
analyze this issue in greater detail below, in our
discussion of prejudice.
Third, Coulter spent five hours on May 15,
1994, reviewing the voluminous records pertaining to
Mason that the state provided. J.A. at 1581-86,
1315. These records included documents pertaining
to Mason’s criminal history, his involvement with
Children’s Services, drug treatment programs, and
some education records. J.A. at 1585. The district
court summarized Coulter’s testimony as showing
that “[f]Jrom viewing these documents, Coulter
learned that [Mason] was born into a_ drug-
dependent family, that the family had in the past
and currently was dealing drugs, and that both
parents previously had been incarcerated for drug
trafficking.” Mason II, 396 F. Supp. 2d at 844. The
records included = a_ psychological evaluation
29a
performed when Mason was thirteen years old that
stated Mason “has been exposed to quite a lot of
violence” and that he “comes from a family which has
had many problems over the years.” J.A. at 2193-94.
The report stated that Mason had several injuries—
including a large swelling near his left eye, cuts
around his nose, and scars on his back and arms—
that Mason claimed resulted from being beaten by
his father. Jd.
Fourth and finally, throughout the period from
October 1993 to June 1994, Coulter met at the jail
with Mason and Mason’s wife several times.
Although some of these visits lasted several hours,
Coulter testified that generally their discussions
were “not extensively{] about the mitigation part of
the case.” J.A. at 1593. Nonetheless, Coulter
testified that he had become aware of many basic
facts regarding Mason’s background and childhood.
At the evidentiary hearing, Coulter referred to notes
he had taken pertaining to “some _ personal
recollections” of Mason, such as that he “said when
his dad went to prison [] his mom whipped him and
his brothers were tied. His father tied him up too
and whipped him... His dad would beat his mom
and stabbed.” J.A. at 1672.
Almost entirely absent from Coulter’s
activities 1s any mention of interviewing potential
witnesses, particularly family members, regarding
mitigation evidence. The only interviews known to
have been conducted with any person other than
Mason himself prior to the strategic decision on June
22 appear to be the following: (1) a .1 hour or six-
minute call to Mike Ring from Children’s Services on
30a
May 17, and a_.3 hour or eighteen-minute
conversation with Mike Ring on May 24, J.A. at
1586, 1589, 1316, 1321; (2) a .6 hour or thirty-six-
minute meeting on May 18 with Lowell Titus, who
was a propPation offieer for Mason and his father, J.A.
at 1559-60, 1317; Resp. Br. at 38, and who told
Coulter that he knew Mason grew up in a “drug
environment,” J.A. at 1659.
Coulter's records and_ testimony did
demonstrate that he talked very bricfly to some, but
not all, of Mason’s family members, but the only
conversations with family members for which
Coulter’s notes establish a known date took place
after June 22. Thus, what little information Coulter
learned from these brief conversations also could not
have supported his strategic decision to pursue a
mitigation strategy limited to residual doubt and
appeals for mercy. Coulter testified that his notes
showed that on June 26, the day before the
mitigation hearing, he spent .3 hours, or eighteen
minutes, talking on the telephone to Michelle Floyd,
Mason’s sister, Ruby Mason, Mason’s mother, and
two jailers who testified at the mitigation hearing
that Mason had not caused any trouble whue he had
been incarcerated. J.A. at 1612, 1334.
Evidence presented at the hearing also
indicated that Coulter never contacted several of
Mason's siblings and other close relatives. Mason's
sister Mioshi Mason testified that she was not
interviewed by Mason's attorneys, but that she
would have been willing to testify about conditions in
the Mason home, J.A. at 1999-2000, and Coulter
confirmed that he had not conducted an in-depth
3la
interview with her, or with Mason’s sister Nyota
Mason, or with Mason’s brothers Alex and Dimitri
Mason. J.A. at 1674.
Coulter also testified at the evidentiary
hearing about two pages of notes taken during his
brief interviews with Mason’s father, James Mason,
Sr., and Mason’s brother, James Mason, Jr., but
Coulter could not recall when those interviews took
place nor did he identify an entry on his time sheets
corresponding to these interviews. J.A. at 1450
(notes of conversation with James Mason, Jr.), J.A.
at 1686-89 (testimony regarding conversation with
James Mason, Jr.), J.A. at 1654-55 (“I can’t recall
exactly” when the interview with James Mason, Jr.,
occurred); J.A. at 1451 (four lines of notes from
conversation w'th James Mason, Sr.); J.A. at 1683-85
(testimony regarding conversation with James
Mason, Sr.), J.A. at 1656 (stating that Coulter had
“no independent recollection” of the conversation
with James Mason, Sr., or when it occurred).
Coulter recalled that James Mason, Jr., worked as a
guard at the Marion Corrcctional Institution, that
James told him there “was no abuse” in the
household although there “was spanking” and that
there were drug problems in the Mason home. J.-A.
at 1687-88. Coulter testified that his notes of his
conversation with James Mason, Sr., Mason’s father,
indicated that James Mason, Sr., was never found
guilty of the alleged assault against Mason described
in the August 1977 police report, and that M2son’s
father “[s]lays never abused kid, did whip them — J.A.
1683-84.
32a
Even if these interviews took place prior to
June 22, they would not have rendered Coulter’s
investigation into Mason’s background reasonable.
Indeed, what Coulter appears to have learned from
these interviews simply underscores the inadequacy
of his investigation. Mason’s brother confirmed to
Coulter that there was a “[d]rug problem at home,”
J.A. at 1688, but Coulter’s notes reflect that both
James Mason, Jr., and James Mason, Sr., told
Coulter that there “was no abuse” in the home,
although admitting that some degree of physical
discipline was used, including “spanking” and
“whipping.” Those statements appear to contradict
the ample documentary evidence referred to above,
such as the 1977 childhood psychological evaluation
stating that Mason “has been exposed to quite a lot
of violence” and that he “comes from a family which
has had many problems over the years.” J.A. at
2193-94. Likewise, the district court noted that the
documentary evidence available to Coulter showed
that Mason was “born into a drug-dependent family,
that the family had in the past and currently was
dealing drugs, and that both parents previously had
been incarcerated for drug trafficking.” Mason IJ,
396 F. Supp. 2d at 844.
Coulter’s failure to continue his investigation
and interview Mason’s mother and remaining
siblings about any abuse and drug activities 1s
inexcusable given this apparent contrast between the
facts contained in the documentary evidence and
what he apparently learned from Mason's father and
brother. The documents available to Coulter
indicated that drugs and violence were a large part
of Mason’s childhood, but his interview notes reflect
33a
that Mason’s father and brother denied abuse,
although they acknowledged physical discipline such
as spanking and whipping. Coulter never followed
up and never conducted further interviews with
other family members to determine which account
was accurate, and that failure was. deficient
performance. See Wiggins, 539 U.S. at 519 (stating
that some knowledge may “trigger[] an obligation to
look further’).
Finally, Coulter’s interviews with Mason’s
father and brother were both brief. J.A. at 1728
(stating that “[t]here was no extensive interviews”
with any of Mason’s family members); J.A. at 1656
(four lines of notes and “no independent recollection”
of interview with James Mason, Sr.). If those
interviews occurred before June 22, Coulter
apparently concluded that their cursory accounts of
life in the Mason home and Mason’s childhood, which
were at odds with the documentary evidence,
provided him with a sufficient understanding of
Mason’s background to make a reasonable decision
regarding mitigation strategy. In particular, he
apparently concluded that those extremely brief
interviews supported forgoing further investigation
and the possible presentation of a mitigation defense
based on pervasive violence and drug abuse in
Mason’s home.
In sum, the evidentiary hearing demonstrated
that, although state records contained information
suggesting that Mason's childhood was marked by
violence and pervasive drug use, Coulter's
investigative efforts to learn any further details
ahout Mason's background were woefully
34a
inadequate. His efforts consisted of no more than
reviewing documents’ provided by _ the _ state,
arranging for a psychiatric evaluation limited to
predicting Mason’s future dangerousness, talking to
Mason himself, and very briefly talking to a small
subset of Mason’s family members. Under the
Supreme Court’s governing case law regarding
counsel's obligation to undertake a_ reasonable
investigation to support strategic decisions about the
presentation of mitigation evidence, we have no
doubt that the performance of Mason’s counsel was
deficient.
2. Whether the Deficient Performance of
Mason's Counsel Caused Prejudice
To prevail on his claim of _ ineffective
assistance of counsel, Mason must also show that his
counsel’s deficient performance caused him
prejudice. We agree with Mason that his counsel’s
deficient performance caused him prejudice.
As described above, Mason need only have
persuaded one juror not to impose the death penalty,
and Mason’s jury initially reported a deadlock
regarding his sentence. Even a_ slightly more
compelling case for mitigation thus might have
altered the outcome of the sentencing phase of
Mason’s trial. At the evidentiary hearing, Mason
presented substantial evidence detailing the abusive
and unhealthy conditions of his childhood. The
district court summarized this evidence as showing
that Mason’s father ran a prostitution ring for three
years, that he operated a home-based drug business
with ten employees selling drugs for him, that both
of Mason’s parents were daily drug users as well as
35a
traffickers. that Mason’s mother shot his father
because of his involvement with prostitution, and
that Mason’s parents regularly abused Mason and
isolated all of their children from anyone not
associated with the parents’ drug dealing activities.
Mason II, 396 F. Supp. 2d at 847-49. Further, the
evidence demonstrated that Mason had
experimented with drugs as an eight-year-old, that
Mason’s father took him along on trips to purchase
and sell drugs while Mason was in the sixth and
seventh grades, and that Mason had a_ borderline
personality disorder largely as a_ result’ of his
dysfunctional home environment. Jd. at 847-49.
Mason thus “has the kind of troubled history that
[the Supreme Court] hals] declared relevant to
assessing a defendant's moral culpability,” and we
therefore hold that “had the jury been confronted
with this considerable mitigating evidence, there is a
reasonable probability that it would have returned
with a different sentence.” Wiggins, 539 U.S. at 534,
536.
The district court reached a contrary
conclusion because it reasoned that any effort by
Mason’s counsel to introduce evidence about his
childhood and background would necessarily have
led to the trial court's admission of damaging
rebuttal evidence about an alleged rape that Mason
had committed. See Mason II, 396 F. Supp. 2d at
855. The district court stated, without citation to the
record, that “the trial court specifically held that
even if counsel presented only the mitigating
evidence pertaining to [Mason’s] family and social
history, [Ohio evidence law] would allow the
prosecution to present its rebuttal evidence.” Jd.
6a
The district court therefore concluded that Mason
could not establish prejudice because although
“depicting his family background undoubtedly would
have evoked sympathy from the jury, the
prosecution’s rebuttal evidence .. . could have turned
the jury against him.” /d.
Both the record and our holding in Mason |
contradict the district court’s understanding
regarding the possible admission of the prosecution's
rebuttal evidence. The district court provided no
citation for its claim that the trial court ruled that
the prosecution could present rebuttal evidence
pertaining to Mason's criminal history even if
Mason’s mitigation presentation involved only his
family history, and this view is simply wrong.
As we stated in Mason I, testimony that
purely concerned Mason's troubled childhood would
“not give the prosecutor the same opportunity for
rebuttal that evidence about good character or
rehabilitation potential could have.” Mason I, 320
I'.3d at 622 n.10. Indeed, in State v. DePew, 528
N.E.2d 542, 555 (Ohio 1988), the Ohio Supreme
Court held that if “a mitigation witness called by the
defense falsely or incompletely testifies on the extent
of the defendant's criminal record, the prosecutor
should be permitted to rebut.” (emphasis added).
The Ohio Supreme Court emphasized in DePew that
“It}his right is limited, however, to those instances
where the defense offers a specific assertion, by a
mitigation witness or by the defendant, that
misrepresents the defendant's prior criminal history.”
Id. (emphasis added); see also id. at 545 (identical
37a
language in Syllabus {| 3)‘; see also Mason I, 320
F.3d at 626-27 (quoting nearly identical language
from State v. Henness, 679 N.E.2d 686, 698 (1997)).®
‘In the Ohio judicial system until 2002, it was “well-established
that the syllabus of an opinion issued by [the Ohio Supreme
Court] states the law of the case . fand als such, all lower
courts in this state are bound to adhere the principles set forth
therein.” Smith v. Klem, 450 N.F.2d 1171, 11738 (Ohio 1983)
see also Cassidy v, Glossip, 231 N.E.2d 64, 65 (Ohio 1967)
(Syllabus “ 6: “The syllabus of a decision of the Supreme Court
of Ohio states the law of the case”). Thus, in 1994 at the time of
Mason's trial, the third paragraph of the syllabus in DePeu
clearly stated the binding rule that only specific assertions
misrepresenting a defendant's prior criminal history permitted
the prosecutor to offer rebuttal evidence
Effective May 1, 2002, the Ohio Supreme Court
amended the relevant rule to state that “|t}he law stated in a
Supreme Court opinion is contained within its syllabus (if one
is provided), and its text, including footnotes.” 5S, Ct. R. Rep
Op. 1(B)(1) (emphasis added)
‘The district court and the Warden both attack our opinion in
Mason I by noting that the Ohio Supreme Court issued its
opinion in Henness three years after Mason's trial. See Mason
I], 396 F. Supp. 2d at 856 n.6; Resp. Br. at 59-60. The district
court contended that in Henness the Ohio Supreme Court
“iterated that the DePew holding only allows the State to
introduce rebuttal evidence if the defendant misstates his or
her criminal history.” Mason I/, 396 F. Supp. 2d at 856 n.6
The district court concluded that “[clounsel cannot be held
ineffective for failing to anticipate the Henness decision’s firm
resolution of this issue.” But as we point out above, Henness
repeated DePew’s holding using almost identical language, and
we disagree that our reading of DePew and Henness punishes
Mason's counsel for “failing to anticipate” anything. Indeed, the
district court itself deseribed testimony presented at the
evidentiary hearing that under “Ohio law as of 1994 and now,
the defense does not open the door to rebuttal evidence unless it
presents evidence that ts either inaccurate or misstates some
48a
The record also demonstrates that the trial
court specifically addressed the admissibility of the
prosecutor's rebuttal evidence in the context of
whether Mason's counsel planned to introduce Dr.
Spare’s deposition testimony. See J.A. at 681-86.
The record does not indicate how the trial court
would have treated the _ prosecutor’s rebuttal
evidence if Mason's counsel presented only evidence
detailing Mason's troubled childhood, most likely
because Mason's counsel never investigated Mason's
childhood nor planned to present such evidence.
point of evidence.” Mason J], 396 F. Supp. 2d at 847 (emphasis
added)
In addition, in State v. Durr, 568 N.b.2d 674, 684-84
(Ohio 1991), the Ohio Supreme Court applhed DePew in just this
manner three years before Mason's trial. At the sentencing
phase in that case, the prosecutor's statement tncluded the
following remark: “The defendant's lack of prior criminal
convictions Will he take the stand with a aworn [sic|
statement? Unfortunately, | don't know how that applies to
this case.” /d. at 683 (alteration in original). Noting that “|t}he
record in this case is devoid of any reference by appellant or any
mitigation witness that the appellant was free of erimminal
convictions,” the Ohio Supreme Court explained that the
prosecutor's “statement does violate the DePew standard as it
improperly comments on both the appellant's unsworn
statement and the appellant's prior convictions.” /d. at 684
Finally, as explained in text above, the record does not
indicate that the trial court expressed any opinion regarding
whether a mitigation presentation relying purely on family
background would permit the state to introduce rebuttal
evidence of Mason's prior criminai acts because Mason's counsel
never advanced the possibility of such a presentation, as
defense counsel instead focused only on presenting Dr. Spares
opinion concerning whether Mason was likely to be a repeat
offender
29a
On June 27, 1994, the morning of the
mitigation hearing, the trial court heard argument
regarding the status of Dr. Spare’s deposition and
the nature of the defense’s mitigation strategy. J.A.
at 677-86. The prosecutor described Dr. Spare’s
testimony as concluding that Mason “was not likely
to be a repeat violent offender. and he based that on
his opinion that [Mason] had not engaged in violent
conduct in the past.” J.A. at 682. The prosecutor
noted that Mason’s counsel no longer planned to
present Dr. Spare’s testimony and observed that
defense counsel would present testimony regarding
Mason’s good conduct in jail and from family
members appealing for mercy, and also would argue
against the death penalty based on residual doubt.
J.A. at 683. The prosecutor stated his conclusion
that if Mason’s counsel did not intend to present “Dr.
Spare’s examination, [then] the State would not be in
a position to rebut[{] that evidence.” Jd. Mason’s
counsel then made a motion in hmine to prevent the
prosecutor from admitting the rebuttal evidence in
light of the defense’s intention not to present Dr.
Spare’s testimony but rather to pursue the limited
strategy outlined above. J.A. at 685-86. The trial
court stated that “{iJf you don’t put on the record
anymore than what the Prosecutor indicated
then of course that will be granted.” J.A. at 686.
This entire discussion focused on Dr. Spare’s
testimony, which, as the prosecutor indicated,
involved a false statement about Mason’s criminal
history and thus would have’ permitted the
prosecution, under DePew, to introduce its rebuttal
evidence regarding Mason's criminal history.
40a
Coulter’s testimony at the evidentiary hearing
similiarly depicted the trial court’s evidentiary ruling
as tethered to the consequences of introducing Dr.
Spare’s deposition testimony regarding Mason’s
criminal history and likehhood of being a repeat
offender. In describing his conversation with the
Public Defender’s office on June 22, Coulter stated
that the conversation was focuscd on addressing the
folowing dilemma. Coulter explained that “iJf we
introduced [Mason’s] family history and/or Dr.
Spare’s testimony about his ability to be
rehabilitated or general characteristics as being
nonviolent,” then the prosecutor “was willing to bring
in several different things ...a parole violation case
where [Mason] supposedly brandished a firearm . .
bringing information of [Mason’s] past convictions,
burglarly and trafficking and drugs... [and] a young
girl approximately 18 years of age who had alleged
that Mr. Mason had raped her, I believe, back in
October of ‘92.” J.A. at 1600-01. Coulter
summarized that “the prosecutor's position was,
okay, if you go with family history and/or, you know,
Dr. Spare’s testimony, nonviolence or his
characteristics or his ability to be rehabilitated we’re
voing to bring this evidence in.” J.A. at 1601.
Later questioning clarified that the possible
presentation of Dr. Spare’s testimony was seen as
the potential trigger that would permit the
prosecutor to present rebuttal evidence. Coulter
read the conclusion of Dr. Spare’s report, which
stated a conclusion that “!blased on the information
available, including Mr. Mason's history, psychiatric
examination, and psychological testing, |] Mr. Mason
is not likely to be repeat or violent offender nor does
41a
he have an unusual propensity to act out violently in
the future.” J.A. at 1730. The following exchange
then occurred:
[Mr. Stebbins]:
[Coulter]:
[Mr. Stebbins]:
[Coulter]:
[Mr. Stebbins]:
[Coulter]:
[Mr. Stebbins]:
Now, when you had _ the
discussions with Judge
Wiedemann and Prosecutor
Slagle abou: rebuttal
evidence coming in, Danielle
Miller [the alleged rape
victim|—
Yes, sir.
—Jones, brandishing a
firearm, the burglary, all of
those discussions, was this
going to come in in rebuttal
to Dr. Spare’s conclusions
that [Mason] would not be a,
not hkely to be a violent
repeat violent offender?
Yes, because we were
bringing up his_— criminal
history, his history was
coming up through his—from
Dr. Spare’s testimony.
So that comes in to rebut
what Dr. Spare is going to
conclude?
That was part of the
impression we got from the
judge.
But Dr. Spare was going to
testify, if he testified, that
[Mason] would not be a
repeat violent offender?
42a
{Coulter]: Correct.
(Mr. Stebbins]: And the rebuttal would come
in to rebut that?
[Coulter]: Yes, because it was part of
his history.
J.A. at 1731-32. This discussion makes clear that
the admissibility of the prosecutor’s rebuttal
evidence hinged on whether the defense would make
use of Dr. Spare’s deposition testimony that
misstated Mason’s criminal history and that opined
on the likelihood of Mason being a repeat violent
offender. Whether the trial court would have
admitted the prosecutor’s rebuttal evidence in
response to a defense strategy based solely on the
circumstances of Mason's troubled childhood remains
a hypothetical question because Coulter never
planned to present such a defense.
In sum, we hold that Mason has demonstrated
a reasonable probability that, had his counsel
presented the mitigating evidence introduced at the
evidentiary hearing, at least one juror might have
been persuaded not to impose the death penalty.
3. Whether the Ohio Supreme Court
Unreasonably Applied Clearly Established Federal
Law in Adjudicating Mason’s Ineffective Assistance of
Counsel Claim
Although we have concluded that Mason has
satisfied the standards required to prevail on a claim
of ineffective assistance of counsel, to grant Mason’s
petition for a writ of habeas corpus requires holding
that the Ohio Supreme Court unreasonably apphed
clearly established federal law in denying his claim.
28 U.S.C. § 2254(d).
43a
In rejecting Mason’s claim of ineffective
d r
assistance of counsel at the sentencing phase, the
Supreme Court’ opinion contained’ the
following analysis, quoted in full:
Penalty Phase. Mason argues that his
counsel failed to investigate and present a life
history of Mason and_ his_ psychological
background so that he would not receive the
death penalty. Mason also complains about
the paucity of mitigation evidence presented in
defense.
The record, however, suggests that
defense counsel had voluminous records about
his history and background. Counsel prepared
twelve exhibits documenting aspects’ of
Mason's childhood, such as reports that he
was beaten by his father and released by his
parents to juvenile authorities, as well as
early psychological evaluations, but did not
present them to the jury. Mason argues that
these exhibits show that a cogent, persuasive
mitigation case could have been built
revealing Mason’s childhood exposure _ to
violence, his dysfunctional family, and his
early emotional and psychological problems.
But the records also show prior
involvements with the criminal and juvenile
justice systems, and_= other’ unfavorable
matters. Mason could not have presented
evidence as to his good character and
rehabilitation potential without risking the
introduction of negative evidence by the state
in rebuttal.
44a
Similarly it was not an unreasonable
strategic decision to refrain from presenting
the video deposition of psychiatrist Dr. Spare
in order to avoid rebuttal by evidence of
Mason’s’ behavioral problems, character
deficiencies, and poor potential for
rehabilitation. We will not second-guess the
strategic decisions counsel made at trial even
though appellate counsel now argue that they
would have defended differently. State v. Post
(1987), 32 Ohio St.3d 380, 388, 513 N.E.2d
754, 762.
Nor has Mason shown prejudice, the
second Strickland requirement, namely “a
reasonable probability” that different tactical
choices at the penalty phase would have made
a difference in the result. See State v. Bradley,
42 Ohio St.3d 136, 538 N.E.2d 373, paragraph
three of the syllabus.
State v. Mason, 694 N.E.2d 932, 956 (Ohi01998).
The Ohio Supreme Court unreasonably
applied the Strickland standard in rejecting Mason’s
claim because the Ohio Supreme Court ignored the
principle established in Strickland that “strategic
choices made after less than complete investigation
are reasonable precisely to the extent that
reasonable professional judgments support the
limitations on investigation.” Strickland, 466 U.S. at
690-91; see also Williams, 529 U.S. at 396 (finding
deficient performance because “trial counsel did not
fulfill their obligation to conduct a_ thorough
investigation of the defendant’s background”).
Although the Ohio Supreme Court noted that
45a
Mason's counsel “had voluminous records about his
history and background” and that his counsel
“prepared twelve exhibits documenting aspects of
Mason's childhood” for use in deposing Dr. Spare,
State v. Mason, 694 N.E.2d at 956, the opinion failed
to consider whether Mason’s counsel conducted any
interviews with Mason’s family members or
performed any investigation beyond examining the
documents that the state provided to them and
talking to Mason. The Ohio Supreme Court simply
asserted that Mason’s counsel had made a strategic
decision regarding mitigation strategy, but that court
failed to assess whether a thorough and reasonable
investigation supported counsel’s strategic decision.
This constitutes an unreasonable application of
Strickland. See Wiggins, 539 U.S. at 527 (observing
that “the Maryland Court of Appeals appears to have
assumed that because counsel had some information
with respect to _ petitioner's background—the
information in the [state] records—they were in a
position to make a tactical choice not to present a
mitigation defense,” and characterizing the state
court’s application of Strickland as “objectively
unreasonable” because “the [state] court did not
conduct an assessment of whether the decision to
cease all investigation upon obtaining the [state]
records actually demonstrated reasonable
professional judgment’).
The Ohio Supreme Court also rejected Mason’s
claim of ineffective assistance of counsel on the
ground that Mason had failed to show prejudice, but
this analysis too 1s tlawed = and_ objectively
unreasonable. The Ohio Supreme Court noted
Mason’s argument that a “cogent, persuasive
46a
mitigation case could have been built revealing
Mason’s childhood exposure to violence, his
dysfunctional family, and his early emotional and
psychological problems.” State v. Mason, 694 N.E.2d
at 956 (emphasis added). Despite _ this
acknowledgment of the nature of the mitigation case
that Mason argued his counsel shouid have
presented, the very next sentence in the Ohio
Supreme Court’s opinion stated that “[b]ut the
[state] records show prior involvements with the
criminal and juvenile justice systems, and other
unfavorable matters” and the court then observed
that “Mason could not have presented evidence as to
his good character and rehabilitation potential
without risking the introduction of negative evidence
by the state in rebuttal.” Jd. (emphasis added).
Mentioning the possibility that presenting evidence
“as to his good character and_ rehabilitation
potential” would risk rebuttal evidence makes
absolutely no sense given that the opinion had just
described Mason’s argument that his counsel should
have presented a mitigation case focusing on his
childhood, dysfunctional family, and his emotional
psychological problems, not his good character or
rehabilitation potential. It was objectively
unreasonable to hold that Mason failed to show
prejudice by invoking the spectre of rebuttal evidence
responding to a mitigation strategy that Mason was
not advocating.
Ill CONCLUSION
For the rveasons discussed above, we
REVERSE the judgment of the district court,
GRANT Mason a conditional writ of habeas corpus
47a
that will result in the vacation of his death sentence
unless the state of Ohio commences a new penalty-
phase trial against him within 180 days from the
date that the judgment in this matter becomes final,
and REMAND the case for further proceedings
consistent with this opinion.
DISSENT
BOGGS, Chief Judge, dissenting. After we
remanded to give the condemned exactly what he
asked for, an evidentiary hearing before a federal
district judge, the learned trial judge carefully
reviewed the evidence presented and_ correctly
applied the relevant federal law under AEDPA and
Strickland v. Washington. Today our court continues
a distressing trend of finely parsing defense counsel
judgments, based on the most charitable (to the
condemned) or malevolent (to the defense counsel)
view of facts and holds that counsel was
constitutionally ineffective. [ emphasize
constitutionally because in a common-sense way,
counsel was of course ineffective his client was
sentenced to death. However, that is not the
standard that we are to apply. and I therefore
dissent.
I. Ineffectiveness
“(T]he crux of [Mason's] challenge is that his
counsel provided ineffective assistance because they
failed to investigate his background and conduct any
in-depth interviews of his family members prior to
the decision on June 22, 1994, to limit the mitigation
48a
presentation to appeals for merey and claims of
residual doubt.” Op. at 6 (emphasis added). The
emphasized portions of tne above quote illustrate the
two principal bases on which today’s opinion rests:
the adequacy and the timing of the interviews
defense counsel Ted Coulter conducted with Mason's
family members. Coulter's decision not to present
any evidence related to Mason's family background
at the sentencing phase was a strategic one, but
today’s opinion argues that the investigation
supporting this decision was itself unreasonable.
First, with regard to the timing, the opinion
places considerable emphasis on the fact that Coulter
did not verifiably conduct any interviews’ with
Mason’s family members prior to June 22, 1994, the
date on which Coulter, in consultation with the Ohio
Public Defender’s Office, made the strategic decision
not to present any evidence related to Mason’s family
background at the sentencing phase (for fear that it
would open the door to damaging rebuttal evidence).
See Op. at 10-11. It states “Coulter’s records and
testimony did demonstrate that he talked very
briefly to some, but not all, of Mason’s family
members, but the only conversations with family
members for which Coulter’s notes establish a known
date took place after June 22. Thus, what little
information Coulter learned from’ these _ brief
conversations also could not have supported his
strategic decision ... .” Ibid. While Coulter’s
contemporaneous notes do not establish a date for
most of the interviews he conducted with Mason's
49a
family members,! it is incorrect to state categorically
that “Coulter's extensive testimony at the
evidentiary hearing demonstrates that prior to
selecting his mitiyvation strategy on June 22 Coulter
did not interview members of Mason’s family.” Op.
at 9. Note Coulter’s testimony:
Q@. Now, your decision then to forego the
presentation of the family history and to forego Dr.
Spare’s deposition —
A. Yes, sir.
q). at trial was based on the rebuttal that
was going to come in, correct?
A. Yes, sir.
@. And it was based on, in your opinion, the
rebuttal being stronger than any mitigation that you
were to get out of this, correct?
A. Yes.
1 Coulter interviewed Michelle Floyd (Maurice Mason’s sister),
J.A. 1657, 1680; James Mason, Jr. (his brother), J.A. 1654,
1680; Ruby Mason (his mother), J.A. 1680; James Mason, Sr.
(his father), J.A. 1656, 1680; and Wilma Jones (his aunt), J.A.
1681. Coulter must also have spoken at some point with Tara
Dyer (Mason’s cousin), because he called her as a witness
during the sentencing phase. J.A. 724. Coulter's notes indicate
that he conducted phone interviews with Michelle Floyd and
Ruby Mason on June 26 (though it is not clear that this was the
only time he ever spoke with them). J.A. 1334. There is no
indication when the other interviews may have taken place.
Coulter could not remember whether he had ever interviewed
four other of Maurice Mason's siblings. and there was no
evidence to suggest that he had.
5Oa
Q. Now, this was based on what you have
stated is brief interviews with Mason's family, is that
correct?
A. Correct.
q. And that’s the information that you based
your decision on correct?
A. Yes, sir.
J.A. 1736. Coulter unequivocally testified that his
strategic decision was based on the interviews he
conducted with Mason’s family, which leads one to
believe that he must have conducted at least some of
the interviews before making that decision.
Nevertheless, Coulter could not remember —
testifying ten years later — the exact dates of those
interviews, and he would commit only to having
conducted them prior to the mitigation hearing itself.
J.A. 1655. Thus, the best that can be said for the
Opinion is that Coulter's testimony fails to establish
whether (or which of) the interviews were conducted
before June 22. But Mason bears the burden of
establishing the inadequacy of Coulter's
investigation — Coulter is not responsible for
proving the opposite, ten years after the fact.
Moreover, there is no dispute that Coulter addressed
mitigation matters to some extent with Maurice
Mason himself during jail visits that indisputably
occurred long betore June 22. Op. at 10; J.A. 1593-
94. He also spoke with Mason's wife, Terry Mason,
on numerous occasions long before June 22, and she
was often present during Coulter's jail visits with her
5la
husband, some of which addressed mitigation
matters. J.A. 1303-05, 1586, 1588, 14598.
Second, perhaps anticipating this argument,
the opinion notes that, even if Coulter had conducted
the interviews prior to June 22, his investigation was
still inadequate. Op. at 11. It is asserted that the
evidence that Coulter's investigation did uncover was
too limited to make a reasonable decision regarding
strategy, and, in fact, triggered a duty to investigate
further. /bid. (citing Wiggins v. Smith, 539 U.S. 510,
519 (2003)). The opinion places great weight on
Coulter’s admissions that the interviews with the
family members were not “in-depth” or “extensive.”
Op. at 9, 12.2. And it faults him for failing to question
the family members about an apparent discrepancy
between what Mason’s father and older brother said
about family life in the Mason household (that there
was physical discipline but no abuse) and what was
contained in the state documents reviewed by
Coulter (detailing significant physical injuries that
Mason sustained, allegedly at the hands of his
father). Op. at 10-11, 12.
Yet, the record makes clear that Coulter was
already aware of virtually all of the details of
Mason's background necessary to make a strategic
Coulter testified that these interviews were “very brieff].” J.A
1680 Nevertheless, at least one of the interviews (with
Mason's older brother) was long enough for Coulter to compile a
page of notes. J.A. 1450. The notes demonstrate that Coulter
learned important details regarding Mason’s’ upbringing,
including that Mason was the “wild one.” that there “was a drug
problem in the home,” and that Mason was whipped. J/bid
o2a
decision whether to pursue a mitigation defense
based on family history. ‘That 1s to say, the opinion
does nol point to a single significant piece of evidence
in the record of which Coulter was unaware due to
his failure to investigate further.’ Rather, the record
establishes that Coulter knew that there was
significant domestic violence in the houschold,
including (1) that Mason was physically abused, (2)
that his father would beat his mother, (3) that the
children would be tied up and whipped, (4) that his
father once stabbed his brother, (5) that Mason’s
father “beat him with sticks while in the backseat of
the car,” and (6) that Mason ran away from home
because his father beat him often. J.A. 1672, 1678-
79, 1696-97, 2186. Coulter was similarly aware of
the extensive drug abuse in Mason’s home, including
(1) that Mason’s parents had “been selling dope
before [he] was born,” J.A. 1236, 1672, (2) that they
' To be sure, there are some details that might have emeryed
from exhaustive further investigation. For example, there is an
instance in which Mason witnessed his mother shoot his father
(non-fatally). There is also evidence that Mason's father ran a
prostitution ring, but, as the district court stated,
the duty to investigate further is triggered only when
the information that trial counsel already reviews
warrants further investigation. Wiggins, 539 U.S. at
527. Neither defense trial counsel here encountered
any information in either their interviews with family
members or their review of documents that sugyested
that the Petitioners father was involved with
prostitution. ‘l'hus, counsel could not have reasonably
known about it nor were they constitutionally required
to discover its existence,
JA. 105
53a
started selling cocaine by the mid-1980s, J.A. 1672,
(3) that they had drug-trafficking convictions, J.A.
1679, (4) that Mason started using drugs himself “in
the middle elementary grades,” J.A. 1179, (5) that he
would steal his parents’ drugs (for which he would be
punished), J.A. 1180-81, 2277, and (6) that Mason
“got into cocaine at age 14,” J.A. 2240.
Thus, even if Coulter had done everything that
the opinion would require of him (e.g., contacting
every single family member, or conducting more
interviews of “greater depth”), he would have learned
virtually nothing that he did not already know. This
stands in stark contrast to Wiggins, in which trial
counsel's failure to investigate left a litany of horrific
details of Wiggins’s childhood undiscovered.‘ Indeed,
* These include that Wiggins’s mother
frequently left Wiggins and his siblings home alone for
days, forcing them to beg for food and to eat paint chips
and garbage. Mrs. Wiggins abusive behavior included
beating the children for breaking into the kitchen,
which she often kept locked. She had sex with men
while her children slept in the same bed and, on one
occasion, forced petitioners hand against a hot stove
burner—an incident that led to petitioner’s
hospitalization. At the age of six, the State placed
Wiggins in foster care. Petitioner's first and second
foster mothers abused him physically, and... the
father in his second foster home repeatedly molested
and raped him. At age 16, petitioner ran away from his
foster home and began living on the streets. He
returned intermittently to additional foster homes,
including one in. which the foster mother’s’ sons
allegedly gvany-raped him on more than one occasion.
After leaving the foster care system. Wiggins entered a
compared to trial counsel’s investigation in Wiggins
— which was limited to the review of a one-page pre-
sentence report and some _ rudimentary social
services documents® — Coulter’s investigation was
extraordinarily thorough: he reviewed Mason's
criminal records, juvenile’ records. Children’s
Services records, counseling records, 2nd educational
records (described by the opinion as “voluminous,”
op. at 10); he spoke with Mason’s probation officer,
Lowell Titus, who was also Mason's _§tather’s
probation officer; he arranged for a psychiatrist, Dr.
Joseph Spare, to do an evaluation of Mason’s mental
health, including some _ exploration of Mason’s
troubled childhood; he spoke with the deputy
Job Corps program and was allegedly sexually abused
by his supervisor.
Wiggins, 539 U.S. at 516-17 (citations omitted).
5 Wiggins’s defense counsel also arranged for a psychological
evaluation, but, unlike Mason's psychiatric evaluation, the
evaluation of Wiggins “revealed nothing .. . of [his] life history.”
Wiggins, 539 U.S. at 523.
6 The opinion describes the evaluation as “limited .. . solely to
determining Mason’s potential for rehabilitation and_ the
likelihood of future dangerousness; Dr. Spare did not cover
Mason’s background or childhood tn any great detail.” Op. at Y.
Although Coulter did describe the evaluation as “very limited,”
J.A. 1637, Dr. Spare described it as a “more in-depth evaluation
of |Mason’s] situation and background, including some
personality evaluation,” J.A. 1178. However one chooses to
characterize it, Dr. Spare clearly did go into some depth on the
issues of drug abuse and physical violence in the Mason
household. See J.A. 1178-83. As previously noted, Dr. Spare
took a “relatively extensive oral history from Mason” that
“recounted essentially all of the facts that. according to [the]
court, were not discovered by defense counsel.” Musun v.
sheriffs who encountered Mason in jail; he talked
with Mike Ring, a Children’s Services worker who
was familiar with Mason’s case; he interviewed
Mason himself and Mason’s wife about Mason’s
background and family lfe; and he interviewed
(however briefly) Mason’s father, mother, brother,
sister, and aunt.’ J.A. 1585-98, 1654-57, 1680-81.
Although one might argue that Coulter’s
decision to forego a mitigation defense based on
family history was a foolish one, it was not the
product of a constitutionally deficient investigation.
There is nothing that any further investigation
would have revealed that would have led Coulter to
weigh his options differently and come to a different
conclusion. He possessed all of the essential facts
regarding Mason’s background necessary to make a
reasonable strategic choice. ‘The opinion basically
second-guesses that choice, and in so doing, applies
the very hindsight that Strickland forbids.
Il. Prejudice
Because Mason fails to carry his burden of
demonstrating that Coulter's investigation was
constitutionally inadequate under Strickland’s first
prong, there is no need to address prejudice. The
opinion is quite clear in holding that counsel was
ineffective, not for making the strategic choice to rely
Mitchell, 320 F.8d 604, 644 (6th Cir. 2003) (Boggs. J.,
dissenting in part).
* Coulter also presumably spoke with Mason’s cousin, Tara
Dyer. See n.l supra. The opinion describes this entire group as
a “small subset” of Mason’s family, op. at 12.
56a
on resiaual doubt at sentencing, but for failing to
conduct a_ sufficiently thorough investigation to
support that choice. Thus, in order for there to be
prejudice resulting from this error, it must be
because a competent defense attorney, having
conducted a more thorough mitigation investigation,
would instead have made the opposite strategic
choice — electing to present a mitigation defense
based on Mason’s troubled upbringing rather than
relying on residual doubt. But there is absolutely no
reason to believe that any competent defense counsel
would ever have made this choice, no matter the
extent of the mitigation investigation, because the
trial judge (according to Coulter) would have allowed
the prosecution to introduce damning rebuttal
evidence, including, tnter alia, the testimony of an
eighteen-year-old woman who had previously been
raped by Mason — a crime “eerily similar” to the one
for which the jury had just convicted him. See
Mason v. Mitchell, 320 F.3d 604, 646 (6th Cir. 2003)
(Boggs, J., dissenting in part).
The opinion argues that the trial court was
prepared to permit the _ prosecution’s’ rebuttal
evidence if defense counsel sought to admit Dr.
Spare’s deposition testimony, but that it never
specifically addressed the potential rebuttal
evidence, which remains a “hypothetical question.”
Op. at 14, 15. It also argues that the state of
evidence law in Ohio as it existed when Mason was
tried was that, so long as none of the defense
witnesses misrepresented Mason's criminal history
or likelihood for future dangerousness, the
prosecution would not have been permitted to
5/a
introduce any rebuttal evidence. Op. at 13-14.
While the opinion’s views on these matters could be
thoroughly controverted, I have not done so because,
in a correct analysis, they are irrelevant.
Even if the opinion’s analyses of Ohio evidence
law and DePew were correct as a matter of prediction
of ultimate resolution by courts of last resort,
Coulter’s estimation of the trial judge was that he
would have permitted the introduction of the
rebuttal evidence regardless. To be sure, as | stated
before our remand,
[djefense counsel ... could have... appealed a
district court decision to admit Mason’s
negative history as rebuttal evidence. Yet we
have never held that defense counsel is
constitutionally obligated to take such a risk,
especially when the trial court’s ruling is far
from clearly the abuse of discretion that would
be required to overturn its’ evidentiary
determination.
Mason, 320 F.3d at 645 (Boggs, J., dissenting in
part). And it is entirely possible that, had defense
counsel pursued a mitigation strategy that relied on
extensively describing Mason's’ character and
background, one of the family members might
accidentally have commented in some way on
Mason's criminal history, which would have opened
the door to the disastrous rebuttal evidence even
under the court’s reading of DePew. (In which case,
no doubt, Coulter would be accused of ineffectiveness
for failing to rely solely on residual doubt.)
58a
It is also notable, and remarkable, that the
opinion waves off the likely, or plausible, outcome
had the “poor me” defense been presented at trial as
merely hypothetical, and never flatly states that
there is a reasonable probability, in that courtroom,
at that time, that petitioner would not have been
sentenced to death, in light of the actual likelihood of
the devastating rebuttal.
III. Conclusion
This opinion sets an almost impossibly high
bar for defense counsel in capital cases. Defense
counsel is now required “to locate and interview the
chent’s family members .. . and virtually everyone
clse who knew the client and his tamily, including
neighbors, teachers, clergy, case workers, doctors,
corre:tional, probation or parole officers, and others,”
Van Hook v. Anderson, 535 F.3d 458, 463 (6th Cir.
2008) (quoting the ABA Guidelines for’ the
Appointment and Performance of Counsel in Death
Penalty Cases 4 10.7, at 83); he must interview them
long ecnough so that those interviews can be
characterized as “extensive” and “in-depth,” op. at 9;
every conceivable family member must be contacted,
no matter that defense counsel has spoken with the
defendant, his wife, mother, father, brother, sister,
aunt, and cousin (along with several non-family
members), op. at 11-12: and he must do all this even
if he reasonably believes (based on the trial court's
rulings and his own reasonable interpretation of
state law) that the introduction of any evidence
regarding the defendant’s family background could
open the door to truly disastrous rebuttal evidence
Ga
by the prosecution. Nothing in Strickland or its
progeny requires defense counsel to yo to such
extreme lengths in order to meet the (relatively low)
threshold of “reasonably effective assistance.”
For these reasons, I respectfully dissent.
60a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
CASE NO. 1:99CV524
MEMORANDUM OPINION
AND ORDER
Dated: October 31, 2005
MAURICE MASON,
Petitioner,
Vv.
BETTY MITCHELL, WARDEN,
Respondent.
KATZ, J.,
This case is before the Court on remand from
the Sixth Circuit. In its Mandate Order, the Sixth
Circuit held that it could not determine from the
record whether’ Petitioner's trial counsel were
ineffective for failing to investigate and present
evidence during the mitigation phase of trial.
Consequently, the Sixth Circuit remanded the case
to this Court to hold an evidentiary hearing on this
claim. Mason v. Mitchell, 320 F.3d 604 (6th Cir.
2003). The parties then conducted discovery and the
Court held an evidentiary hearing on December 29
61a
and 30, 2003, and January 6, 2004. The parties
thereafter submitted post-hearing briefs. For the
reasons stated herein, the Court finds that
Petitioners counsel were not ineffective in their
investigation and presentation of evidence during the
mitigation proceedings of Petitioner’s trial.
l. Factual Background
In this Court’s prior Memorandum of Opinion
and Order, it set out the following factual history, as
adduced by the evidence presented at trial, upon
considering the petition for a writ of habeas corpus:
In February, 1993, Petitioner Maurice
Mason, an African-American man, was a
resident of Marion, Ohio. Decedent Robin
Dennis, a white woman, was a resident of
Richwood, Ohio, and was acquainted with
Mason. Dennis was last seen alive on
February 8, 1993. On February 15, 19938,
Dennis’s body was found in an abandoned
building in a rural area north of Marion, Ohio.
The coroner determined that she had died
several days earlier as a result of blunt force
trauma causing multiple skull fractures. The
probable weapon, a blood-stained board with
protruding nails, was found twenty feet from
Dennis's body.
Evidence that Dennis had been raped
was also found at the scene. When Dennis's
body was discovered, she was wearing only a
bra; her jeans and panties were positioned
around her ankles and lower leg. She had
been strangled, and there were bruises on her
62:
head, face, and body. Inside and around
Dennis’s car, which was found near the
murder site, forensic investigators discovered
Nike tennis shoe impressions and type B
blood, Dennis's blood type; the location of the
tennis shoe marks and the blood were
consistent with a struggle having taken place
inside and around the car. Semen was found
in Dennis’s vagina and on her panties; DNA
testing determined that the semen was
Mason's.
Two witnesses saw a person fitting
Mason’s description walking in the area of the
murder site between 4:10 and 4:15 p.m. on the
day Dennis disappeared. Police found Mason's
car keys on the front seat of Dennis's car.
Type B blood was found on the side of a Nike!
tennis shoe Mason was wearing on February
12, 19938.
(Doc. No. &4, at 1-3.)
Petitioner was charged with the rape and
murder of Robin Dennis. The case was tried before a
jury between May 31, and June 29, 1994. The jury
convicted Petitioner on both charges. Thereafter, the
trial court held a mitigation hearing. During this
hearing, defense counsel Lawrence Winkfield and
Ted Coulter presented the testimony of Gary L.
Collins and Lisa Johnston, two deputy sheriffs from
' Dennis had also been wearing Nike tennis shoes at the time of
the murder. Forensic investigators were unable to determine
whether the shoes Mason was wearing matched the shoe marks
found in and around Dennts’s car.
63a
the Marion County Jail Division. Both testified that
Petitioner had not caused any major disturbances in
the year that he had been incarcerated at the prison
and that he was a model prisoner, (Doc. No. 40, at
4237-44). Counsel also called Ruby Mason,
Petitioner’s mother, as well as his brother, sister,
and cousin to testify. The family members asked the
jury for mercy and to spare the Petitioner's life. Jd.
at 4245; 4247; 4249; 4251.
Defense counsel then called Terry Mason, the
Petitioners wife. Similar to the other family
members, she pled for the jury’s mercy. Additionally,
Terry Mason displayed for the jury some drawings
that the Petitioner had made for her since his
incarceration. On cross-examination, the
prosecution questions Ms. Mason regarding her
recollection of the events that occurred on the day of
the murder. Jd. at 4256-65.
Finally, Petitioner testified in his own behalf
in an unsworn statement. He denied killing Robin
Dennis and asked the jury to sentence him to one of
the two life sentences so that he could have “the
chance to take [the conviction and sentence] through
the Appeals Courts.” Jd. at 4280. Thereafter, the
defense rested. The prosecution did not offer any
evidence in rebuttal.
Il. Habeas Proceeding
This Court demed the Petitioner on May 9,
2000, (Doc. No. 84). The Petitioner then filed a
motion for certification of appeal pursuant to 28
—
U.S.C. § 2253 on June 9, 2000, to which the
Respondent filed an opposing brief on June 21, 2000.
64a
The court granted the motion, certifying all claims
for appeal, (Doc. No. 90). The Court denied
Respondent’s motion to file a supplemental
memorandum opposing Petitioner's request for a
certificate of appealability on June 26, 2000, (Doc.
No. 91).
Concurrent with the filing of the motion for
certificate of appealability, the Petitioner filed a
notice of appeal on June 9, 2000. The Sixth Circuit
issued an opinion regarding this appeal on February
6, 2008, affirming in part and remanding in part this
Court's decision to deny the writ of habeas corpus.
Mason v. Mitchell, 320 F.3d 604 (6th Cire. 2003).
The Sixth Circuit affirmed this Court’s denial of the
writ on all claims except the Petitioner’s ineffective
assistance of counsel during mitigation claim. It
concluded that because the record before it was
insufficient to determine whether’ Petitioner's
counsel had provided him with constitutionally
sufficient representation during the mitigation phase
of trial, it could neither affirm nor reverse this
Court’s decision to deny the claim.
The Mason court found that while Strickland
v. Washington, 466 U.S. 668 (1984) holds that
strategic choices counsel makes after a thorough
investigation of fact and law are “virtually
unchallengeable,” the strategic choice itself is only
reasonable to the extent that counsel’s investigation
is reasonable. /d. at 620. It observed that although
defense counsel had requested and received from the
trial court permission to hire an investigator, the
investigator's work pertained predominantly to the
ruilt phase of trial. I[t also noted that defense
65a
counsel was in possession of “over 3,000 pages” of
record concerning the Petitioner's social, educational,
and criminal history. /d. at 622. Finally, the Sixth
Circuit observed that defense counsel had prepared a
videotape deposition of Dr. Joseph T. Spare, a
psychologist who the trial court appointed to assist
the defense at counsel's request.
After reviewing the investigation defense
counsel performed, the Sixth Circuit noted several
deficiencies in counsel's investigation. First, it
observed that defense counsel did not appear to have
interviewed any family members, including the
Petitioner, regarding possible mitigating evidence.
Id. Instead, the Sixth Circuit determined that
counsel had not adequately’ investigated the
Petitioner's background for mitigating evidence. It
opined, “{hJad counsel conducted an adequate
investigation, the jury would have heard substantial
evidence about how drug use and violence pervaded
Mason’s background and life history.” Id. [t
concluded that the documents the prosecution had
supplied before counsel “could not have. contained
anything close to the amount of mitigating evidence
that could have been and later was obtained in an
independent and thorough investigation,” Jd. at 623.
It then held that the record before it was deficient to
ascertain whether counsel had conducted = an
investigation into the Petitioner’s background that
was sufficient to cull any substantial mitigating
evidence.
The Sixth Circuit next examined defense
counsel's decision not to present any mitigating
+
evidence. It noted that on direct appeal, the Ohio
66a
Supreme Court had held that counsel's decision not
to present mitigating evidence was deficient because
of the Petitioner's criminal history and prior bad
acts, including an alleged prior rape. Although this
Court had found this holding was reasonable under
Strickland based on the Sixth Circuit’s decision in
Scott v. Mitchell, 209 F.3d 854, 880 (6th Circ. 2000),
in which the Sixth Circuit held that counsel’s failure
to present mitigating evidence was reasonable based
on the petitioner's extensive criminal history, the
Mason court distinguished Scolt, stating that,
because the state court in that case had held an
evidentiary hearing, the habeas court was bound to
the state court’s factual findings. Id, at 625.
Although the Mason court found that counsel may
have been reasonable by deciding not to present
evidence of the Petitioner's good character so as not
to open the door to any damaging rebuttal evidence,
it reasoned that “|tlestimony that simply put
Mason's childhood into context without
misrepresenting it would not have been subject to
the prosecutor's rebuttal evidence, which mostly
concerned Mason's character.” /d. at 627.
Finally, the Sixth Circuit reviewed the
Petitioner's inadequate psychiatric assistance claim,
in which the Petitioner asserted that Dr. Spare failed
to develop adequate mitigating evidence and should
have been disqualified because of a conflict of
interest that stermmed from his treatment of the
Petitioner's wife. Because the Petitioner's mitigation
defense was based on residual doubt and a call for
mercy, the Sixth Circuit held that the Petitioner was
not entitled to psychiatric assistance during the
mitigation phase of trial under Ake v. Oklahoma, 470
67a
U.S. 68 (1985). The Sixth Circuit held that the
Petitioner might stiil be entitled to relief, however.
Because a competent psychologist would have
conducted an extensive investigation into the
Petitioner's background and such an inquiry, in turn,
would have yielded a multitude of mitigating
evidence to sway the jury’s sentencing decision, the
Mason court found that the Petitioner may “still
have an ineffective assistance claim for the efficient
performance of defense counsel in apparently relying
on Dr. Spare for an independent investigation into
mitigating evidence.” Mason, 320 F.3d at 627. The
Sixth Circuit concluded its analysis of the
Petitioner’s ineffective assistance during mitigation
claims by finding that, because he had not yet had a
hearing on this issue, it must remand the matter to
the district court to factually develop the claims that
the Petitioner raised.
Prior to holding such an evidentiary hearing,
the Court entertained numerous motions and
granted several pre-hearing requests for discovery.
First, the Petitioner requested funds for an
investigator and expert, which the Court grantea on
July 18, 2003. The Respondent also moved the Court
to conduct depositions and record depositions in
preparation for the evidentiary hearing. The parties
disputed the availability and scope of the
depositions. Specifically, the Petitioner objected to
questioning his attorneys and any agents thereto,
l.e., any mental health professionals that his
attorneys hired, on the grounds that it violated the
attorney-client privilege and the work product
doctrine. He urged the court to limit the scope of his
own deposition on the same grounds.
68a
On October 15, 2003, the Court issued an
Order regarding the availability and scope of the
depositions the Respondent requested, (Doc. No. 41).
The Court held that the Petitioner had waived the
right to assert the attorney-client privilege or work
product doctrine regarding the mitigation phase of
trial. It limited this waiver, however, to permit the
Respondent tc question the Petitioner and counsel
only about conversations that occurred’ in
preparation for the mitigation hearings. Thus, the
Court prohibited the Respondent from _ broadly
questioning the Petitioner regarding his commission
of the murder, allowing questions’ regarding
culpability only to the extent they were discussed in
preparation for mitigation proceedings. Id. at 5.
After the parties conducted discovery, the
Court held an evidentiary hearing on this matter on
December 29 and 30, 2003, and January 6, 2004.
The hearing focused on only a few critical points,
described below.
The Petitioner first called trial counsel
Lawrence Winkfield to testify. Winkfield admitted
that he was not death penalty certified when he was
first appointed to the case. Upon taking the required
continuing legal education courses, however, he
testified that he became death penalty certified by
the time the trial commenced. Winkfield further
stated that he and co-counsel Ted Coulter divided
their duties during trial. He recalled that his duties
consisted primarily of those related to the culpability
phase of trial and Coulter primarily was responsible
for the mitigation preparation. Coulter then testified
regarding his mitigation investigation and how he
69a
prepared for the mitigation proceedings. He stated
that he initially called the Ohio Public Defender’s
Office (hereinafter “OPD”) to request assistance in
trving the case. Specifically, Coulter contacted Jane
Core, a mitigation specialist for the OPD., to discern
whether her’ office could provide’ mitigation
investigation assistance. The OPD stated that they
would not provide counsel with any aid until counsel
became death penalty certified.
Once he became death penalty certified,
Coulter testified that he again contacted the OPD to
ascertain whether they would provide him with any
assistance. At that time, the staff at the OPD
indicated that their case load was too heavy to
provide counsel with any aid in the mitigation
investigation but gave counsel a list of private
individuals who possibly could aid counsel in
obtaining mitigation evidence. Coulter stated that
he contacted James Crates, a mitigation specialist, to
aid him in_= gathering mitigation information.
Counsel next applied to the trial court for funds to
obtain a mitigation investigator. The trial court held
a hearing on the issue of whether to provide counsel
with funds to hire a mitigation specialist and
forensic psychologist. Counsel sought and obtained
the testimony of Dale Baich from the OPD to explain
the importance of these experts in aiding the defense
team to prepare for mitigation. Coulter testified that
the trial judge had not encountered a recuest for a
mitigation specialist before and appeared
unpersuaded at the hearing of the importance of
funding one. Additionally, the prosecutor. James
Slagle, opposed the funding of these experts,
asserting that because the prosecution had provided
70a
counsel with extensive records regarding the
Petitioner's history, expenditures on these experts
were unnecessary. Thereafter, the trial court denied
counsel’s request for a mitigation specialist and
reserved ruling on whether to appoint a psychologist.
Coulter stated that upon the trial court’s
refusal to grant counsel funds to hire a mitigation
specialist or a forensic psychologist, he again
contacted the OPD and spoke to Core in an attempt
to procure some mitigation assistance. Although he
could not recall the specifics, Coulter did recall that
either he or Core mentioned the name of Dr. Jeffrey
Smalldon, a forensic psychologist, but could not
recall if either he or Core made any contact with
him. Counsel then turned to Dr. Spare, a
psychologist who head treated the Petitioner’s wife,
Terry Mason. He set forth his reasons for requesting
the services of Dr. Spare:
We had filed two previous motions for [sic]
request for forensic psychologist and
mitigation specialist with experience in death
penalty cases, and fit] appeared to us that the
Court was not going to grant such funds for
those types of experts, and so with the idea
that at least maybe we can get an MMPI or
some testing we didn’t have at that stage, Dr.
Spare, he would be a local doctor [that] would
be a lot less expensive based on the
impressions I got from the Court and,
therefore, I filed a motion and the conference
with the prosecutor |sic] he wasn’t going to
prepare that, so | prepared the entry and got
Mr. Slagle’s signature and took it to the Court.
Tila
And then again, as you can see by that
entry, the tyxe is different there, and | don't
know if the court’s secretary or myself or
whatever on the judge’s instruction limited the
cost of that up to a total cost not to exceed
$600 exclusive of court testimony.
(Doc. No. 221, at 67.) In addition to limiting the
amount counsel could expend on Dr. Spare, the trial
court relayed to counsel that the purpose of obtaining
psychiatric assistance was to ascertain whether the
Petitioner was a “repeated [sic] serial killer.” Jd. at
137. Coulter stated that the trial court was
“concern[ed] about cost and [the psychologist] being
local and not having to transport Maurice very far.”
Id. at 200.
Petitioner’s counsel also questioned Coulter
regarding his entry on the billing statement
containing five hours for review of mitigation
materials. Coulter testified that this was the review
of over 5,000 pages that the prosecutor had provided
him, (Doc. No. 221, at 75). He stated that the records
contained much of the Petitioner’s criminal history,
including his juvenile court records, records from
Children’s Services, drug treatment program
involvement, and some school records. He also
attempted to procure additional records trom the
juvenile court, Marion County Children’s Services, as
well as Marion Area Counseling. From viewing
these documents, Coulter learned that the Petitioner
was born into a drug-dependent family, that the
family had in the past and currently was dealing
drugs, and that both parents previously had been
incarcerated for drug trafficking. Coulter also
72a
vaguely recalled his co-counsel attempting to contact
law clinics or law schools to obtain assistance in the
mitigation investigation but did not recall any
responses to such inquiries.
Coulter spoke with James Mason, Jr., the
Petitioner’s older brother. James Mason, who was a
guard at the Marion Correctional Institution, stated
that although his parents treated everyone fairly,
Petitioner often was singled out because he would
run away and he was the “wild one.” Jd. at 145. He
further told Coulter that although there was
spanking in the family, there was no abuse. James
admitted that there was a drug problem in the home.
He stated that the Petitioner “ran with the wrong
bunch” and that his father would tell stories of doing
illegal activities without getting caught and that
“Maurice tried to emulate him.” /d. at 146. Coulter
also sought out and spoke with Lowell ‘Titus, the
Petitioner’s probation officer. Titus told Coulter that
the family was into drugs and that the Petitioner
was not a good probationer.
Coulter testified regarding the notes he had
procured regarding the Petitioner's family history.
He stated that he grouped this information into
categories as follows:
A: The first category seems to be when he
was in Lima in a drug and alcoho! program
therein referring to Lima _ prison. [The
Petitioner} talks about the interface program,
the lady who ran the program, and becoming a
sponsor and a drug counselor and also the
lady's name, and then there’s the London
program. Again, if I interpret my notes
73a
correctly, he was incarcerated in a Snap
Program, he did some testing in there called
an interface program.
And then on the bottom third would be
in terms of two divisions. One would be in
terms of some _ personal recollections of
Maurice, said when his dad went to prison and
his mom whipped him and his brothers were
tied. His father tied him up too and whipped
him. Defendant ran and [his father] did not
catch him. Dad would whip him. [lis dad
would beat his mom and stabbed [his brother].
Tory, I beheve, who is his brother,
talked about [how] Maurice always was
blamed, and he would say he didn’t do it and
always ran. His father would abuse him. He
would be drunk or high, and dad sold drugs
before he was born.
(Doc. No. 221, at 161-62.) Coulter also testified
regarding one incident in which the Petitioner had
told him that his mother’s bicycle had been lost. His
father accused him of selling the bicycle and began
beating him. The Petitioner then ran away to avoid
further beatings. Coulter recalled he talked to the
Petitioner regarding mitigation at various points
during the trial. He also stated that he spoke with
the Petitioner’s family members briefly, calculating
that the interviews took minutes, rather than hours.
In preparation for mitigation, Coulter stated
that he read the transcripts from the two other death
penalty cases from Marion County, the David Penton
case and the Joseph Murphy case. Coulter also
T4a
contacted Mr. Robert Wilson, Murphy’s attorney,
regarding his representation of Murphy. In that
case, also tried before Marion County Common Pleas
Judge Wilham Wiedemann, Wilson had presented
during mitigation an extensive life history and
background of Murphy in hopes of building juror
sympathy for him and to avoid a death sentence.
Despite presenting this evidence, however, Murphy’s
jury sentenced him to death.
Coulter next testified regarding the issue of
the State’s ability to call rebuttal witnesses.
Through ongoing pre-trial discovery, Coulter learned
of the prosecution's intent to call rebuttal witnesses
at the mitigation phase of tral. He stated that
Slagle informed him that if he introduced evidence of
the Petitioner’s family history or his non-violent
character, the prosecution intended to raise several
issues in rebuttal. Coultcr testified that Slagle
would raise evidence of a parole violation where
Petitioner allegedly brandished a firearm before a
woman named Barbara Jones, another incident
where he allegedly pushed a woman, and _ past
convictions for burglary and drug trafficking. By far
the most damaging rebuttal information in the
hands of the prosecution was the allegation that the
Petitioner had previously raped an eighteen-year-old
girl named Danielle Miller in October, 1992, a few
months before the rape and murder of Robin Dennis.
Coulter noted the similarities between the Dennis
murder and the Miller attack:
[S]he was similar [sic] aged to the victim of
this case alleged and | think she was around
18 vears of age. The allegation of rape
‘
cy
a
occurred approximately three or four months
before this alleged incident, and there was a
threat of force, and .. . our concern was that
the jury would see through her, possibly the
pain, and it would be damaging to our plea for
his life.
Id. at 201.
Coulter stated that he spoke briefly with the
Petitioner regarding his alleged rebuttal evidence.
Regarding a past burglary charge, the Petitioner
referred counsel to Dave “Chicken” Brown as
someone who could reveal how the burglary had
actually occurred.
Coulter testified that he beheved that,
pursuant to State v. DePew, 528 N.E.2d 542 (Ohio
1988), much of the information regarding the
Petitioner's prior bad acts and character would not
be admissible during the mitigation proceedings.
According to his interpretation of DePew, the
prosecution could introduce rebuttal evidence if the
defense misrepresented the Petitioner’s criminal
record, but that much of the mitigation information
defense counsel intended to introduce would not open
the door to the State’s rebuttal evidence.
The trial court, Coulter testified, held an in
camera conference on whether DePew permitted the
prosecution to use its rebuttal evidence. Coulter
stated that the judge’s interpretation of DePew was
vastly different from his own. Rather than limiting
the prosecution’s ability to introduce’ rebuttal
evidence, the trial judge intimated that if ceunsel
were to raise the VPetitioner’s family history as a
76a
mitigating factor as to why the criminal act may
have occurred, then defense counsel would open the
door for the state to rebut this explanation of the
Petitioner's background with damaging information
regarding the Petitioner's prior criminal record and
bad acts.
Coulter testified that even if he had omitted
Dr. Spare’s testimony regarding future
dangerousness and presented only the testimony
regarding the Petitioncr’s family history, he believed
Judge Weidemann had a “hair trigger” regarding the
introduction of any rebuttal evidence, t.e., the trial
court believed that DePew opened the door for the
prosecution’s rebuttal evidence even if counsel had
merely presented evidence of the Petitioner’s
background and did not present any evidence of the
Petitioner’s non-violent character, (Doc. No. 221, at
227-28). Coulter admitted that, based on the trial
court’s interpretation of DePew, he was “totally torn”
as to whether he should introduce the Petitioner’s
family background evidence during mitigation, (Doc.
No. 122, at 92).
To amply assess the possible damaging effects
of Danielle Miller’s testimony, Coulter stated that he
traveled to Fulton, Ohio to interview her. Coulter
had learned through discovery that Miller was
reluctant to testify and he was hoping that she would
not be willing to do so at the mitigation hearing.
Coulter testified that to the best of his recollection,
he eventually made contact with her on June 26,
1994. At that time, Miller told him that the
Petitioner had raped her and that she would be
willing to testify about the rape during trial.
77a
Consequently, Coulter testified, he held a
conference call with Core and Dick Vickers from the
OPD, Mike Geis from the Ohio State University
linguistics department, and co-counsel Winkfield
regarding whether to pursue a strategy of family
history coupled with an assertion of non-violence
that would open the door to the _ prosecution's
rebuttal evidence or to pursue a strategy in which
counsel would assert residual doubt and plead for
mercy. Upon the conclusion of the conference, the
consensus was that counsel should not choose a
strategy involving the Petitioner’s family history
because of the State’s ability to introduce damaging
rebuttal evidence.
Instead, Coulter testified that he and co-
counsel decided that they would pursue a residual
doubt/mercy strategy. He stated that he thought he
had a good argument for residual doubt: “|Wle felt
we had a legitimate argument because .. . again,
referring back to the record, | think there was one
juror, even post-trial issues showed [the juror’s]
hesitancy with the verdict,” (Doc. No. 122, at 210).
After counsel finished questioning Coulter
during the evidentiary hearing, the Court asked
Coulter whether, if the trial court would have
provided unlimited funds, he would have altered his
decision to present the mitigation defense they chose.
The colloquy went as follows:
THE COURT: But as it turned out, Mr.
Coulter had you been given substantially more
funds by Judge Wiedemann, it would have still
come down, would it not, in your opinion then
held, as to the viability or strength of your
isa
mitigating evidence against the strength of the
prosecutor's rebuttal evidence?
THE WITNESS: We would have still
had to weigh it, yes, Your Honor. The
discussion as we had more information
psychologically or evidentiary-wise with a
mitigation specialist you could weigh it and go
with that strategy.
(Doc. No. 221, at 228-29.)
The Petitioner next called Donald C.
Schumacher, at attorney who testified regarding the
professional standards as of 1994, when the trial
occurred. He asserted that an attorney in a capital
case must make himself or herself familiar with
friends and family members who would be a natural
group to interview to glean any _ mitigation
information. He stated that defense counsel should
start planning immediately to secure some expert
assistance to aid the defense team. He also asserted
that relying on lack of future dangerousness as a
mitigating factor had the potential of turning the
jury against a capital defendant if counsel failed to
establish this fact to the jury. Schumacher asserted
that, pursuant to his interpretation of Ohio law as of
1994 and now, the defense does not open the door to
rebuttal evidence unless it presents evidence that is
either inaccurate or misstates some point. of
evidence. Finally, he testified that if a trial court
were to deny defense counsel adequate funds to
investigate a defendant's social or mental history,
then counsel would be obligated to obtain this
background information in- preparing for’ the
mitigation phase of trial.
79a
Dr. Robert Smith then testified on the
Petitioner's behalf, He depicted the severe
dysfunctional home in which the Petitioner grew up.
He described a home in which both parents were
daily drug users as well as drug traffickers, where
the children were isolated from both authorities and
other children whose parents did not purchase drugs
from the Petitioner’s parents. He described the
Petitioner’s father as being repeatedly violent when
intoxicated, particularly towards Ruby Mason and
the Petitioner. Dr. Smith also described one occasion
when Ruby Mason shot her husband while the
children were in the home. He revealed that, in
addition to drug trafficking, James Mason, Sr. was
involved in prostitution activities.
In addition to reporting on the Petitioner's
home life, Dr. Smith testified regarding the
Petitioner's mental health. He stated that, largely
because of the effects of the home environment, the
Petitioner had a borderline personality disorder.
When afflicted with this disorder, he explained, an
individual has no self-image or self-concept. They
have very strong fears and have difficulty forming
relationships with others, in part because of their
severe mood swings and suicidal tendencies. He also
diagnosed the Petitioner with having a substance
dependence.
The Court questioned Dr. Smith regarding his
opinion of Dr. Spare’s evaluation. In response to the
Court’s questions, Dr. Smith testified that, given the
financial constraints under which the trial court
placed Dr. Spare, he could not have conducted a
meaningful psychological evaluation of the
80a
Petitioner. Second, Dr. Smith stated that any conflict
of interest under which Dr. Spare labored because of
his prior treatment of ‘Terry Mason was not relevant
to any issue other than a code of ethics to which Dr.
Spare would have been bound. Finally, Dr. Smith
conceded that, given the financial constraints under
which Dr. Spare had to operate, Coulter’s request
that he focus on _ the _ Petitioner's future
dangerousness made little difference in the outcome
of the examination.
The Petitioner next called Dr. Jeffrey
Smalldon, a_ psychologist who examined the
Petitioner during state post-conviction proceedings.
Dr. Smalldon testified regarding how he typically
performs a forensic evaluation for a capital case. He
also stated that to cull all of the necessary
background information, a _ forensic psychologist
must perform an in-depth investigation into a
defendant’s background. Dr. Smalldon opined that,
given the limited funds provided by the trial court,
Dr. Spare could not have performed an adequate
forensic evaluation. He further questioned whether
Dr. Spare was sufficiently qualificd to perform such
an evaluation in a capital case or perform a
Minnesota Multi-Phasic Personality Inventory test.
Dr. Smalldon questioned the validity of Dr. Spare’s
diagnosis because it was based on_ limited
examination of the Petitioner and review of the
records.
In addition to his examination of the
Petitioner during the state court proceedings, Dr.
Smalidon stated that he re-evaluated the Petitioner
for purposes of the evidentiary hearing. In his
Sila
testimony, he largely repeated the family history
first relayed to the Court by Dr. Smith. He stated
that, had he been asked to testify during the
mitigation proceedings, he would have attempted to
humanize the Petitioner, placing his actions in the
context of his family and social background. On
cross-examination, however, Dr. Smalldon conceded
that he did not come to a final diagnosis of the
Petitioner.
James fF. Crates, a mitigation specialist, next
testified on the Petitioner’s behalf. He explained
that his role in a capital case 1s to conduct an inquiry
into a defendant's social and psychosocial history.
He testified that trial counsel contacted him during
the course of the trial but that he did not actually
work on the case until 1996, during state post-
conviction proceedings. At that time, he had a
conversation with Ruby Mason regarding the Mason
home. Ruby Mason described the drug tratficking
and physical abuse in the home, as well as the
Petitioner’s experimentation with drugs by age eight.
In the sixth and seventh grades, Crates relayed,
Ruby Mason revealed that the Petitioner would
accompany his father on trips to purchase and sell
drugs.
Several of the Petitioner’s family members
also testified during the evidentiary hearing. First,
the Petitioner’s father, James Michael Mason, Sr.,
stated that he and his wife fought on occasion but
that he “always lost,” (Doc. No. 222, at 424). He
described his drug business as home based _ but
stated that he had ten people working for him selling
drugs. He stated that these workers provided
82a
financial support to his wife and family while he was
incarcerated. He further stated that his relationship
with his wife was good during his time in prison, and
that she and the children would visit him every
visiting day. James Mason also admitted to running
a prostitution ring for approximately three years.
Regarding his relationship with the Petitioner,
James Mason stated that while he was incarcerated,
the Petitioner began running away from home and
stealing. After departing prison, he stated that to
punish the Petitioner for stealing, he would whip
him. He also revealed that the Petitioner at one
point had the “worst juvenile record in Marion
county.” Jd. at 442. Despite his court involvement
for stealing, James Mason described his son as a
non-violent person who had a good reputation in the
Marion, Ohio community.
The Petitioner’s first cousin, Minnie Range,
testified during the hearing. She testified regarding
the strained relationship between Ruby and James
Mason. She also stated that Ruby shot James
because of his involvement with prostitution. James
Mason, Jr., Mioshi Mason, and Michelle Floyd, all
siblings of the Petitioner, testified regarding their
childhood in the Mason home. Each reiterated prior
testimony regarding the drug use in the home and
the isolation they suffered from children whose
parents were not drug associates of their parents.
The siblings also verified that they were whipped as
a means of punishment in the household.
The Respondent called two witnesses during
the evidentiary hearing. First, the Respondent
called Danielle Miller Richardson. She stated that in
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1992, she and the Petitioner were about to engage in
consensual intercourse when they were interrupted
by her friend before any sexual contact occurred.
The following week, the Petitioner came to her home
and told her that he wanted to speak with her. She
entered his car and he told her that they were “going
to finish what we had previously started.” ld.
Although she attempted to exit the _ vehicle,
Richardson testified that the Petitioner smacked her
in the face and told her to shut the door. She then
described the rape and disclosed that he twice went
to reach underneath his seat, where Richardson was
aware that he kept a gun. At some point during the
rape, Richardson testified, the Petitioner stated that
he was going to have to kill her. He did not harm
her, however, allowing her to walk back to her home.
The Respondent next called Nancy Fortner
Bernard, a prior girlfriend of the Petitioner’s. She
stated that in 1993 counsel Winkfield contacted her
prior to trial. She told Winkfield that the Petitioner
had been violent with her when they were seeing
each other in the 1980s. Additionally, she stated
that during the time in which she was romantically
involved with the Petitioner, they had gone to the
location which was later to be the site of the Dennis
murder. After her testimony, the evidentiary
hearing concluded. The Court thereafter permitted
the parties to submit post-hearing briefs, (Doc. Nos.
226, 228, 229, 230).
84a
II. Applicable Law
A. Decisional Law
The Strickland v. Washington, 466 U.S. 668
(1984) test, pronounced over twenty years ago, is the
familiar standard for evaluating ineffective
assistance of counsel claims. Specifically, Strickland
dictates that a petitioner must satisfy a two-prong
test to establish ineffective assistance of counsel.
First, the petitioner must demonstrate that counsel’s
errors were so egregious that “counsel was not
functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Jd. Second,
the petitioner must show that he or she was
prejudiced by counsel’s errors. The Strickland Court
held that, “[t]his requires showing that counsel’s
errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Jd.
To assert a successful ineffective assistance of
counsel claim, a petitioner must point to specific
errors in counsel’s performance. United States v.
Cronic, 466 U.S. 648, 666 (1984). Thereafter, the
Strickland Court held, a reviewing court must
subject the allegations to rigorous _— scrutiny,
determining “whether, in light of all circumstances,
the identified acts or omissions were outside the wide
range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A reviewing court must
strongly presume that counsel's conduct was
reasonable and might be part of a trial strategy. I/d.
at 689. As the Supreme Court recently affirmed,
“Judicial scrutiny of a counsel’s performance must
be highly deferential’ and .. . ‘every effort {must] be
made to eliminate the distorting effects of hindsight,
85a
to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Bell v. Cone, 535
U.S.685, 698 (2002)(quoting Strickland, 466 U.S. at
689).
Since the Supreme Court decided Strickland,
that Court, as well as the Sixth Circuit Court of
Appeals, has issued several important opinions
expounding on the Strickland standard. In Wiggins
v. Smith, 539 U.S. 510 (2003), the Supreme Court
held that counsel’s failure to investigate and present
to the jury mitigating evidence constituted a Sixth
Amendment violation. There, the Court held that
trial counsel’s failure to discover evidence of the
petitioner's difficult childhood was a_ Sixth
Amendment violation.” The Court found that
counsel’s decision not to expand their investigation
in the wake of reviewing several documents
diagnosing the petitioner’s mother as an alcoholic
and the petitioncr’s placement in several foster
homes was an abdication of the duties imposed on
counsel pursuant to Strickland.
- The Court noted the extensive hardships the petitioner faced
during childhood:
[Pjetitioner’s mother, a chronic alcoholic,
frequently left Wiggins and his siblings home alone for
days, forcing them to beg for food and to eat paint chips
and garbage. Mrs. Wiggins’ abusive behavior included
beating the children for breaking into the kitchen,
which she often kept locked. ... Petitioner’s first and
second foster mothers abused him physically and .
the father in his second foster home repeatedly
molested and raped him.
Id. at 516-17 (citations omited).
86a
The Wiggins Court cautioned, however, that “a
court must consider not only the quantum of
evidence already known to counsel, but also whether
the known evidence would lead a_ reasonable
attorney to investigate further.” Jd. at 527. While
Strickland established that strategic decisions can be
virtually unchallengeable, the Wiggins Court
emphasized that these decisions are not immune
from attack if they are founded upon = an
unreasonable investigation. Jd. Finding that the
information the petitioner’s trial counsel already had
reviewed triggered a duty to investigate’ the
petitioner’s background further, the Court held that
trial counsel's actions were objectively unreasonable
under Strickland.
The Supreme Court again emphasized
counsel’s duty to investigate for mitigating evidence
in its recent decision Rompilla v. Beard, _ U.S. _, 125
S.Ct. 2456 (2005). There, the Court held that
defense counsel had a duty to investigate for
mitigating evidence despite the defendant’s and his
family’s insistence that none existed. The Court
found counsel’s performance ineffective when they
failed to review the court file containing the
defendant’s prior convictions, even though counsel
knew that the prosecution would be using this
conviction, including reading portions of a prior trial
transcript in which the defendant committed a
similar offense to the one at issue during trial, to
bolster its support for an aggravating factor during
the sentencing proceeding. Jd. at 2464. While the
Court credited counsel with some efforts to obtain
mitigating evidence, it held that counsel’s failure to
review the prior conviction file, despite their
S7a
knowledge that the prosecutor intended to utilize it
and the ease with which counsel could have obtained
it, rendered their assistance below the constitutional
minimum required under the Sixth Amendment. /d.
at 2467.
The Rompilla Court also was concerned with
the multitude of mitigating evidence to which
counsel would have availed themselves had they
reviewed the prior conviction file. Records contained
in this file » -vealed that the defendant was reared by
alcoholic parents, that Rompuilla’s father regularly
beat him and his mother, that the family home was
filthy, and the children were not given clothing,
attending school “in rags.” Jd. at 2468-69. Based on
these circumstances, the Rompilla Court held that
counsel’s failure to review the prior conviction file
prejudiced the outcome of the — sentencing
proceeding.*
The Sixth Circuit Court of Appeals also has
issued several recent opinions regarding counsel’s
3 In her concurring optnion, Justice O'Connor took pains to
observe that, contrary to the dissent’s contention, the Court was
not holding that counsel must always review all documents in a
prior conviction file. Jd. at 2469. Instead, she opined, three
circumstances of that particular case required counsel to make
this inquiry. First, she noted that defense counsel were aware
that the prosecution was going to use details of the prior
conviction to prove an aggravating circumstance. Moreover,
defense counsel knew that the prosecution’s use of the prior
conviction would undercut counsel’s” planned mitigation
strategy of arguing residual doubt. Finally, Justice O’Connor
reasoned that counsel's failure to review the prior conviction file
was a result of counsel's inattention, rather than part of some
reasoned strategic judgment. /d. at 2471.
88a
Sixth Amendment obligations in the mitigation
phase of a capital case. In Hamblin v. Mitchell, 354
F.3d 482, 486 (6th Cir. 2003), the Sixth Circuit held
that courts must review trial counsel’s actions in
light of the American Bar Association’s guidelines.
Those guidelines suggest the need for counsel to
explore a_ petitioner's medical, educational, and
employment history, as well as obtaining a family
and social history through, inter alia, contact with
family members. Id. at 487 n.2. The guidelines also
state the necessity of reviewing a multitude of
records to provide counsel with clues regarding the
chient’s “childhood abuse, retardation, brain damage,
and/or mental illness... .” Id.
Moreover, in Frazier v. Huffman, 343 F.3d 780
(6th Cir. 2003), the Sixth Circuit held that counsel
acted in violation of Strickland when they tailed to
procure evidence that the petitioner sustained a
brain injury that impaired his brain functioning. dd.
at 794. Although aware of this injury, counsel did
not investigate its occurrence or the possible impact
it may have had on the petitioner's behavior and
commission of the crime. Moreover, counsel failed to
present any mitigating evidence, other than the
petitioners unsworn- statement, during the
mitigation phase of trial. The Sixth Circuit held that
counsel’s failure to investigate could not be part of a
reasonable trial strategy. Jd. at 795. ‘Thus, it
concluded, the state court had unreasonably applied
Strickland in its contrary finding.
In several other Sixth Circuit cases, however,
the court held that counsel did not provide ineffective
assistance during the mitigation phase of trial when
89a
the petitioner could not establish how counsel's
alieged unreasonable conduct prejudiced the outcome
of the sentencing proceeding. In Hill v. Mitchell, 400
F.3d 308, 314 (6th Cir. 2005), for example, the court
held that counsel were not ineffective for failing to
hire a mitigation psychologist until the day before
the mitigation phase of trial when the defendant
previously had been examined by © several
psychologists. The court reasoned that the petitioner
could not substantiate an ineffective assistance claim
because he could not demonstrate that testimony
from a psychologist with more time to prepare for
mitigation would have differed significantly from the
testimony the psychologist actually provided during
the mitigation proceedings. /d. at 316. Thus, the
court found that the petitioner could not establish
the prejudice necessary to demonstrate counsel’s
ineffectiveness.
Similarly, in two other Sixth Circuit opinions,
the court found that petitioner could not establish
that counsel’s alleged acts or omissions prejudiced
the outcome of the mitigation proceeding. First, in
Thompson v. Bell, 315 F.3d 566 (6th Cir. 2003), the
Sixth Circuit held that counsel could not establish
ineffective assistance of counsel for failure to
discover evidence that the petitioner suffered from
organic brain damage when the petitioner was
unable to establish in any post-trial proceeding that
he suffered from such a malady. Although the
petitioner had presented some inferences after trial
that he had brain damage and was currently
suffering from schizo-affective disorder, the Sixth
Circuit found such inferences could not lead it to the
conclusion that counsel did not act diligently during
90a
trial. It reasoned, “absent some evidence of organic
brain damage or mental illness at the time of the
crime, trial counsel cannot be deemed ineffective for
failing to discover something that does not appear to
exist.” Jd. at 590.
Finally, the court held in Smith v. Mitchell,
348 F.3d 177 (6th Cir. 2003), that because virtually
all of the mitigating evidence petitioner asserted
during the habeas proceedings was presented to the
three-judge panel during the mitigation hearing, the
petitioner could not establish prejudice under
Strickland. Thus, the court found that counsel’s
representation was not in viclation of the Sixth
Amendment. See also Clark v. Mitchell, 425 F.3d
270, __ (6th Cir. 2005) (holding that counsel were not
ineffective for failing to present mitigating evidence
that was substantially similar to that presented
during mitigation hearing).
B. American Bar Association Guidelines
Several of the cases examined above uphold
the American Bar Association (hereinafter “ABA”)
guidelines as the paradigm for defense counsel
performance in capital cases.‘ These guidelines sct
forth instructions regarding how trial counsel should
prepare for the mitigation phase of a capital trial.
The guidelines state, in regard to mitigation, that
counsel should begin their initial preparation for
4 ‘The ABA has published several editions of the Guidelines.
lor purposes of performing a proper Strickland analysis, the
Court utilizes the 1989 edition of the guidelines as that was the
most recent edition published at the time of the Petitioner's
trial.
Gla
that phase of trial “immediately upon counsel’s entry
into the case and should be pursued expeditiously.”
ABA Guideline 11.4.1 (1989). It further states that
any investigation for the sentencing phase of trial
should include, but not be limited to:
medical history, (mental and physical illness
or injury, alcohol and drug usc, birth trauma,
and developmental delays); educational
history (achievement, performance and
behavior) special educational needs (including
cognitive limitations and learning disabilities);
military history (type and length of service,
conduct, special training); employment
training history (including = skills and
performance, and barriers to employability);
family and social history (including physical,
sexual or emotional abuse); prior adult and
juvenile record; prior correctional experience
(including conduct on supervision and in the
institution, education or training, and clinical
services); and religious and_— cultural
influences.
ABA Guidelines at 11.4.1.(2)(B) (1989).
In addition to this extensive investigation, the
guidelines propose several steps for counsel to take
in preparation for their mitigation presentation.
They suggest that counsel discuss the sentencing
phase with the client. ABA Guideline 11.8.3 (1989).
While the guidelines emphasize that the preparation
for each case is necessarily distinct because it must
involve an assessment of the individual defendant, it
lists topics that counsel should consider presenting
during sentencing, such as: (1) medical history; (2)
92a
educational history; (3) military’ service; (4)
employment and training history; (5) family and
social history; (6) rehabilitative potential of the
chent; (7) record of prior offenses; (8) expert
testimony concerning any of the above ..... ABA
Guideline 11.8.6 (1989).
The commentary to the guidelines emphasizes that
counsel must be proactive in their mitigation
investigation and preparation. It states:
Obviously, the uniqueness of every client
makes guidelines as to the sentencing phase a
starting point, not a checklist. However,
counsel in every capital case should consider
strategies offered by other attorneys,
discussed in the literature or otherwise
available for consideration. Counsel may not
choose, without investigation and preparation,
to sit back and do nothing at sentencing.
ABA Guideline 11.8.6. cmt.(1989).
IV. Discussion
A. Counsel's Mitigation Investigation
Based on the testimony presented during the
evidentiary hearing, particularly that of Coulter, it is
clear that defense counsel did not inadequately
prepare for the mitigation proceedings. As stated
above, counsel were aware of a multitude of
mitigation evidence that they could have presented
during mitigation. First, counsel knew about the
drug culture that prevailed in Mason’s home, that
his parents were drug dealers, and that both had
served time in prison for drug trafficking. Counsel
were also aware that Mason was heavily addicted to
93a
drugs and was involved in drug sales. Moreover,
contrary to the Mason court’s assertion, 320 F.3d at
622, counsel were aware after deposing Dr. Spare in
1994 that Mason began using drugs during his
childhood years.°
Based on the testimony obtained during the
evidentiary hearing, counsel were aware of the
physical abuse that occurred in the Mason home.
Counsel knew that the Petitioner's father became
violent with him and his brothers and that his
mother beat him while his father was in prison.
Counsel were also aware of the incident in which the
Petitioner's father accused him of stealing his
mother’s bicycle and the Petitioner's subsequent
attempt to run away from home. Finally, Coulter
knew about the physical violence that occurred
between the Petitioner’s mother and father.
During the 1994 deposition, counsel questioned Dr. Spare
regarding the Petitioner's admissions to him regarding his
family’s drug use:
Q: Did he relate to you how he felt about that
environment as he grew up tn it?
A: Well, it was interesting, he said he was embarrassed
that it was known in the neighborhood that his family
were drug people. That didn’t keep him from becoming
druy involved at a fairly early age, however.
xe
He started having difficulty with rules and
regulations and being consistent probably in the middle
elementary grades, and started to use drugs at about
the same time and seemed to become a more pervasive
problem as time went on.
(Doc. No. 151, Exh. 1, at 9-10.)
4a
While Coulter obtained much _ of the
information regarding the Petitioner's background
from the voluminous documents supplied to him by
the prosecution, he also sought and obtained
additional records from the juvenile court, Marion
County Children’s Services, as well as Marion Area
Counseling. Although unsuccessful, counsel also
sought the services of the OPD to aid them in their
mitigation investigation. Finally, while Coulter
conceded that his interviews with family members
were brief, he learned from them that the Petitioner
grew up in a “drug house” and that his father
physically abused the Petitioner and other family
members.
Perhaps the only mitigating information of
which Coulter was unaware was the fact that the
Petitioner's father ran a prostitution ring. As the
Wiggins Court counsels, however, the duty to
investigate further is triggered only when the
information that trial counsel already reviews
warrants further investigation. Wiggins, 539 U.S. at
527. Neither defense trial counsel here encountered
any information in either their interviews with
family members or their review of documents that
suggested that the Petitioner’s father was involved
with prostitution. Thus, counsel could not have
reasonably known about it nor were they
constitutionally required to discover its existence.
Although counsel did not procure an extensive
mental health evaluation of the Petitioner, the trial
court lhmited counsel's efforts to obtain = such
information. The trial court’s limitation on the
funding of a mental health expert obviously curtailed
95a
counsel's endeavors to procure a full psychiatric
examination of the Petitioner. Moreover, Coulter
testified that the trial court’ directed = any
psychological examination to pertain to the
Petitioner’s future dangerousness. Thus, although
Coulter initially attempted to obtain a thorough
psychological assessment of the Petitioner’s mental
health, the trial court curtailed counsel’s attempts
through its funding and focus restrictions. Left with
the choice of obtaining no psychological assistance or
a limited one aimed at assessing the Petitioner’s
future dangerousness, counsel’s decision to opt for
the latter 1s not am unreasonable one under the
circumstances.
Once Coulter became aware of the trial judge's
opinion regarding the DePew holding, he thoroughly
investigated the prosecution’s rebuttal evidence.
Coulter discussed the rebuttal evidence with the
Petitioner, learning from him that a man named
“Chicken” Brown could supply counsel with
mitigating information regarding the Petitioner's
participation in a prior robbery. Importantly,
Coulter also traveled to Fulton, Ohio, where he
located Danielle Miller to assess her credibility and
the potential impact of her testimony.
Based on counsel's and, more specifically,
Coulter's efforts to investigate and _ procure
mitigating evidence as described above, the Court
cannot find that this investigation was an
unreasonable one. Unhke defense counsel in
Wiggins, where counsel's review of limited records
should have prompted counsel to investigate further
or Frazier, where counsel knew of a brain injury but
96a
did not investigate its possible effects on the
Petitioner, defense counsel here appear to have
exhausted all avenues of procuring mitigating
evidence available to them. In fact, the Court is hard
pressed to conjure what further investigation counsel
could have performed based on the information
known to counsel at the time of the trial. While
counsel's development of the Petitioner’s mental
health status was limited, this limitation, as stated
above, came at the behest of the triai court, rather
than counsel’s failures in attempting to procure it.
Accordingly, the Court finds that, pursuant to the
requirements set forth in Strickland and its progeny,
counsel’s mitigation investigation did not fall below
that required by the Sixth Amendment.
B. Counsel’s Mitigation Strategy
As’ Strickland teaches, strategic choices
counsel make after a thorough investigation of fact
and law are “virtually unchallengeable.” Strickland,
466 U.S. at 620. This case proves to be no exception
to that rule. Not only did counsel perform a
thorough investigation of the Petitioner’s background
and social and tamily history, counsel's mitigation
presentation strategy cannot be assailed. Counsel
made this decision only after seeking advice from
numerous qualified counsel such as the OPD, who
had a wealth of experience in trying capital cases.
Moreover, Coulter contacted attorney Wilson to gain
some insight into what might occur if counsel were to
choose a strategy that included introducing the
Petitioner's history and _ social background.
Obtaining advice from other counsel regarding their
mitigation strategy comports with the ABA
Q7a
guidelines, in which counsel are encouraged to
“consider strategies offered by other attorneys.” ABA
Guideline 11.8.6. cmt.(1989).
Based on the trial court’s interpretation of
DePew and the damaginy rebuttal evidence that the
jury would have heard had counsel chosen a history
and social background strategy, the Court finds that
counsel were not unreasonable in deciding that a
residual doubt/mercy strategy was more prudent.
Unlike the views of the Sixth Circuit in Mason, 320
F.3d at 627 (“Testimony that simply put Mason’s
childhood into context without misrepresenting it
would not have been subject to the prosecutor’s
rebuttal evidence, which mostly concerned Mason’s
character’), the trial court specifically held that even
if counsel presented only the mitigating evidence
pertaining to the Petitioner's family and _ social
history, DePew would allow the prosecution to
present its rebuttal evidence. ‘Thus, counsel were
faced with the Hobson’s choice of cither presenting
the Petitioner’s family background and/or character
but opening the door to damaging rebuttal evidence,
or presenting a more. limited residual doubt/mercy
strategy that could fail to humanize their chent to
the jury.
While depicting his family background
undoubtedly would have evoked sympathy from the
jury, the prosecution’s rebuttal evidence, particularly
the testimony of Danielle Miller, could have turned
the jury against him. Moreover, counsel were aware
that one juror was troubled by the guilty verdict.
Thus, counsel could reasonably conclude that a
residual doubt strategy might persuade the jury to
98a
vote for a sentence less than death. Although it is
tempting now to assert that counsel should have
introduced evidence pertaining to the Petitioner’s
childhood and family background based on
subsequent Ohio cases interpreting DePew,® that is
not the analysis that Strickland mandates. As the
Strickland Court held, “[a] fair assessment of
attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.” 466 U.S. at 689.
In reviewing counsel’s conduct based on the trial
court’s rulings and information they knew at the
time of the trial, this Court cannot find that counsel
acted unreasonably.
Moreover, based on the trial court’s reading of
DePew, it is not clear that the Petitioner was
prejudiced by counsel’s failure to introduce the
family background evidence. It would be pure
speculation to presume that a jury who heard the
Petitioner's family background evidence yet also
6 As the Sixth Circuit observed, in State v. Henness, 679 N.E.2d
686, 698 (Ohio 1997), the Ohio Supreme Court iterated that the
DePew holding only allows the State to introduce rebuttal
evidence if the defendant misstates his or her criminal history.
The Henness decision was issued three years after the
Petitioner's trial. Thus, defense counsei could not have used it
to bolster their assertion that DePew would render the
prosecution’s rebuttal evidence inadmissible if he presented
only evidence of his family background and _ social history.
Counsel cannot be held ineffective for failing to anticipate the
Henness decision’s firm resolution of this issue. Lott v. Covle,
261 F.3d 594. 609 (6th Cir. 2001).
99a
were made aware of his prior bad acts and criminal
record would have spared him the death penalty.
The rebuttal evidence, particularly Miuiller’s
testimony that the Petitioner had raped her a few
months prior to the Dennis rape and murder, could
have undercut significantly any attempts by defense
counsel to portray the Petitioner as a victim of his
family background and social environment. Thus,
the Petitioner cannot establish, as he must under
Strickland, that the failure to introduce the famuly
background evidence rendered his — sentencing
proceeding fundamentally unfair.
C. Psychiatric Assistance
As the Mason court acknowledged, the
Petitioner had no constitutional right to psychiatric
assistance during his mitigation hearing. It
observed, however, that the Petitioner “may still
have an ineffective assistance [of counsel] claim for
the deficient performance of the defense counsel in
apparently relying on Dr. Spare for an independent
investigation into mitigating evidence.” Mason, 320
F.3d at 627. ‘hus, because a “competent psychiatric
expert would have conduct{ed] a wide-ranging, very
thorough inquiry into Mr. Mason’s_ psychosocial
background,” id., and Dr. Spare’s review of the
Petitioner was a limited one, the court reasoned that
the Petitioner might have a meritorious ineffective
assistance claim.
As outlined above, however, Dr. Spare’s
examination of the Petitioner was curtailed by the
financial constraints placed on him and trial counsel
by the trial court. Both of the Petitioner's
psychologists, Dr. Smith and Dr. Smalldon, agreed
100a
that with such limited funds, Dr. Spare would have
been unable to perform any meaningful forensic
psychiatric ¢.aluation. Moreover, counsel attempted
to procure both a_ mitigation expert and an
independent mental health expert to examine the
Petitioner. When the trial court refused, they turne:
to Dr. Spare as a local professional whom the trial
court might agree to hire because his assistance
would not require the Petitioner to be transported to
another location. Finally, the trial court appeared
uninterested in procuring a complete psychological
evaluation of the Petitioner, instead focusing any
examination on the Petitioner’s future
dangerousness. ‘Thus, contrary to Schumacher’s
testimony, it was not counsel’s strategy to focus the
psychiatric testimony on this issue. Defense counsel
were hamstrung by the restrictions placed upon
them by the trial court. Based on these restrictions,
this Court cannot find that counsel’s decision to rely
on Dr. Spare was an unreasonable one.
The Court also observes, as it did during the
evidentiary hearing, that the trial court’s financial
restrictions, which in turn led to Dr. Spare’s limited
mental evaluation, may u!timately have had a minor
impact on defense counsel's decision whether to
present it during trial. Because the trial court held
that this evidence, like the family background and
character evidence, would have opened the door to
the prosecution’s rebuttal evidence, counsel’s
decision as to whether to introduce it during trial
was substantially similar to the one they would have
faced even if Dr. Spare or some other mental health
professional would have conducted a_ thorough
psychiatric examination. Thus. there is no clear
1Ola
indication that defense counsel's failure to procure a
full psychiatric profile of the Petitioner influenced
counsel's strategic choice or the outcome of the
mitigation proceeding. Accordingly, the Court finds
that the Petitioner's ineffective assistance of counsel
claim for relying on Dr. Spare’s evaluation lacks
merit.
D. The Ohio Supreme Court’s Decision
In its decision affirming the Pectitioner’s
ineffective assistance of couasel claim, the Ohio
Supreme Court reasoned that counsel's actions were
reasonable because they were part of a strategic
decision. It held:
Mason argues that his counsel failed to
investigate and present a life history of Mason
and his psychological background so that he
would not receive the death penalty. Mason
also complains about the paucity of mitigation
evidence presented in defense.
The record, however, suggests that defense
counsel had voluminous records about his
history and background. Counsel prepared
twelve exhibits documenting aspects’ of
Mason’s childhood, such as reports that he
was beaten by his father and released by his
parents to juvenile authorities, as well as
early psychological evaluations, but did not
present them to the jury. Mason argues that
these exhibits show that a cogent, persuasive
mitigation case could have’ been © built
revealing Mason’s childhood exposure’ to
102a
violence, his dysfunctional family, and his
early emotional and psychological problems.
But the records also show prior involvements
with the criminal and juvenile justice systems,
and other unfavorable matters. Mason could
not have presented evidence as to his good
character and rehabilitation potential without
risking the introduction of negative evidence
by the state in rebuttal.
Similarly it was not an unreasonable strategic
decision to refrain from presenting the video
deposition of psychiatrist Dr. Spare in order to
avoid rebuttal by evidence of Mason’s
behavioral problems, character deficiencies,
and poor potential for rehabilitation. We will
not second-guess the strategic decisions
counsel made at trial even though appellate
counsel now argue that they would have
defended differently. State v. Post (1987), 513
N.Ie.2d 754, 762.
Nor has Mason shown prejudice, the second
Strickland requirement, namely “a reasonable
probability” that different tactical choices at
the penalty phase would have made a
difference in the result. See State v. Bradley,
5388 N.E.2d 373, paragraph three of the
syllabus.
State v. Mason, 694 N.E.2d 932, 956 (Ohio 1998).
This Court finds the Ohio Supreme Court’s
decision was not an unreasonable application of or
clearly contrary to any United States Supreme Court
precedent. As Strickland requires, the Ohio
103:
Supreme Court analyzed counsel's actions based on
what reasonable counsel would have done at the time
of the trial. [t held that, after reviewing “voluminous
records” regarding the Petitioner's history, counsel's
decision to refrain from introducing evidence of the
Petitioner's troubled childhood was a reasonable one
based on the choices counsel faced at the time of
trial. Moreover, the Ohio Supreme Court held, the
Petitioner failed to demonstrate that counsel's
decision not to present more extensive mitigating
evidence in light of the prosecution’s ability to rebut
that evidence prejudiced the outcome of the trial.
Thus, the Ohio Supreme Court utilized” the
Strickland two-pronged test and applied it to the
strategic decisions counsel made after performing an
adequate mitigation investigation. This decision is
not an unreasonable application of the Strickland
decision. Accordingly, the Court finds that, pursuant
to the 28 U.S.C. § 2254(d)(1), the Petitioner is
precluded from obtaining habeas relief for this
claim.’
? While the Sixth Circuit in Mason purports to accept the Ohio
Supreme Court's finding that the rebuttal evidence was
admissible under Ohio law, it nonetheless observes that DePeu
would not have applied to the introduction of the Petitioner's
social background and family history mitigating evidence.
Mason, 320 F.3d at 627. Short of finding this holding is “clearly
contrary to” or an “unreasonable application of” United States
Supreme Court precedent, however, this Court cannot find the
claim has merit. A habeas court cannot use its independent
judgment to grant a petitioner habeas relief. Price v. Vincent,
538 U.S. 634, 640 (2003).
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