Death Penalty

• Publication year: 2014

Death Penalty

Josh D. Moore

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Death Penalty

by Josh D. Moore^*

I. Introduction

The Georgia Supreme Court addressed two death sentences on direct appeal in this survey period,¹ affirming both of them, and addressed four more death penalty cases at various stages of collateral review, leaving death sentences intact in all but one case. Claims of ineffective assistance of counsel frequently dominated the court's discussion of these cases, playing a central role in all but two of them. The court, however, also addressed some important issues touching on mental-health evaluations and evidence, lethal injection, death qualification, and victim-impact testimony.

II. Ineffective Assistance of Counsel

The court dealt with ineffective assistance of counsel claims in four different death penalty cases. Lower courts had actually granted relief on this ground in three out of the four cases: State v. Worsley, Humphrey v. Nance, and Humphrey v. Walker. Of these three cases, the court ultimately affirmed the lower court's judgment only in Walker and reversed in both Nance and Worsley, reinstating the death sentences.² In the fourth case, Sears v. Humphrey, the state habeas court denied relief twice, both prior and subsequent to a remand from the United

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States Supreme Court in 2010,³ and the Georgia Supreme Court affirmed.⁴

A. The Failure to Present All Available Mitigation Evidence

After the Georgia Supreme Court declined to hear an appeal from the denial of Demarcus Sears's state habeas petition, the United States Supreme Court granted certiorari in 2010 and remanded the case by a five-vote per curiam opinion, concluding that the state habeas court had erroneously "determined it could not speculate as to what the effect of additional evidence would have been" because "Sears' counsel did present some mitigation evidence during Sears' penalty phase."⁵ The crux of the Court's 2010 holding in Sears v. Upton⁶ can be fairly summarized as follows: "We certainly have never held that counsel's effort to present some mitigation evidence should foreclose an inquiry into whether a facially deficient mitigation investigation might have prejudiced the defendant."⁷

This observation set the stage for several opinions this year from the Georgia Supreme Court, including Sears v. Humphrey,⁸ grappling with the question of how to properly analyze ineffective assistance of counsel claims where some, or even a substantial amount of, mitigation evidence was actually presented at trial.⁹ The court's clearest articulation of its position on this important question came in Humphrey v. Nance,¹⁰ where it held, "Trial counsel are not constitutionally deficient as a matter of law simply because they do not present all reasonably available mitigating evidence, even if the omitted evidence is consistent with their chosen strategy."¹¹ The court echoed this conclusion in State v. Worsley,¹² observing simply that "counsel is not required to present all mitigating evidence."¹³

Though there is nothing irreconcilable between the United States Supreme Court's holding that a claim of ineffective assistance of counsel may not be rejected purely based on the fact that some mitigation evidence was presented at trial and the Georgia Supreme Court's

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holding that such a claim is not guaranteed to succeed based purely on the fact that some available mitigation evidence was omitted, a decided tension nonetheless begins to emerge in the treatment of these claims.¹⁴ This tension appears to manifest itself most clearly in the way the two different courts value or dismiss new mitigation evidence developed after trial, a difference of approach perhaps best illustrated by contrasting the United States Supreme Court's per curiam opinion in Upton with Justice Scalia's derisive dissent.¹⁵

B. Competing Theories of Mitigation

In Sears, the Georgia Supreme Court hews very closely to Justice Scalia's dissent in Upton,¹⁶ where Justice Scalia dismissed much of the new evidence Sears presented as "incredible'' and "sill[y]," ultimately concluding that "it is impossible to say that substituting the 'deprived-childhood-cum-brain-damage' defense for the 'good-middle-class-kid-who-made-a-mistake' defense would probably have produced a different verdict."¹⁷ The Georgia Supreme Court appears to share Justice Scalia's deep skepticism about the comparative efficacy of this former class of evidence, and this skepticism is clearly reflected in the court's holdings in both Sears and Nance.¹⁸

In Sears, for example, the Georgia Supreme Court rejected the notion that proof of brain damage and drug use might have affected the result of the trial, concluding that "a reasonable jury could have viewed evidence that Sears suffers from frontal lobe damage as aggravating" and that expert testimony about the possible long-term effects of drug abuse was "a factor that a reasonable jury could consider aggravating."¹⁹ The United States Supreme Court, on the other hand, looking at more-or-less the same record, had previously observed that "[c]ompetent counsel should have been able to turn some of the adverse evidence into a positive-perhaps in support of a cognitive deficiency mitigation theory."²⁰ In other words, one gets the sense that these two courts are able to look at a single set of facts and circumstances and see two radically different pictures.

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The court in Sears also, and perhaps more significantly, faulted the mitigation evidence presented by habeas counsel for being inconsistent with the evidence presented at trial.²¹ This criticism also played an important role in the court's opinions in Nance and, to a lesser extent, in Worsley.²² In Nance, for example, the court observed that "evidence of frontal lobe damage to explain Nance's behavior at the time of the murder would have undermined their mitigation theory that he was a changed man,"²³ and the court in Worsley noted that "some of the [new] testimony contradicted the testimony of [Worsley's expert at trial]."²⁴

These opinions reflect an unwillingness on the part of the Georgia Supreme Court, one clearly shared by Justice Scalia, to fault trial counsel for appearing to eschew one colorable mitigation theory in favor of another.²⁵ This unwillingness appears to be particularly acute in cases where a "positive" mitigation theory was pursued, to one extent or another, at trial-the "changed man" in Nance and the "good-middle-class-kid-who-made-a-mistake" in Humphrey-and evidence, such as brain damage or trauma, is subsequently discovered or more fully developed that would lend itself to painting a darker, and arguably more frightening, picture of the defendant.²⁶

C. Deference to the Lower Courts on IAC

Humphrey v. Walker²⁷ represents the only case from this survey period where the Georgia Supreme Court ultimately affirmed a lower court's finding of ineffective assistance of counsel.²⁸ The court concluded its analysis by explaining,

In the light of the factual findings of the habeas court - to which we must defer, insofar as they have some evidentiary support - D we cannot say that the habeas court erred when it determined that Walker

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was denied the effective assistance of counsel with respect to an investigation and evaluation of his competence.²⁹

Although this language is consistent with the court's oft-repeated characterization of its proper role as "accept[ing] the habeas court's factual findings unless clearly erroneous" while "independently apply[ing] the legal principles to the facts,"³⁰ the court, nonetheless, appears to have extended somewhat more deference in Walker than in other cases. For example, in weighing the persuasiveness of Walker's mental-health evidence, the court made the following observation: "The habeas court was in the best position to assess the credibility of [the psychologist], and it obviously found him quite credible."³¹ Such statements are nowhere to be found in the court's discussion of the witnesses presented after trial in Nance or Worsley.³²

In Sears, the court quoted its recent opinion in Humphrey v. Morrow³³ for the seemingly straightforward proposition that "our assessment of how a jury might have reacted to the additional evidence that [Sears] has presented in the habeas court is an assessment of the legal question of prejudice, which we perform de novo."³⁴ The court clarified this principle by explaining that it means the court "must conduct [its] own reweighing of the mitigating and aggravating evidence."³⁵ This particular "reweighing" requirement arguably did not apply in Walker, where the question was framed not by the jury's determination of penalty, but rather by the question of competency to stand trial.³⁶

As discussed earlier,³⁷ a deep skepticism for the efficacy of certain types of "double-edged" mitigation evidence, especially in conjunction with an inversely high value placed on the aggravating factors present, has seemed to drive the court's analysis of ineffective assistance of counsel claims focused on the sentencing phase of death penalty

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trials.³⁸ In both Nance and Worsley, the court ultimately substituted its own judgment for that of the lower courts, which actually heard the evidence at issue.³⁹ Because the question of "how a jury might have reacted to the additional evidence" has been characterized as a pure conclusion of law, this substitution of judgment need not be justified by a finding of either clear error or abuse of discretion.⁴⁰

The painstaking factual development of these lengthy opinions reveals that the court has taken its task seriously, but the court has never waivered from its position that the conclusions of a lower court on the question of prejudice at sentencing, or, to put it another way, on the "impactfulness" of new mitigation evidence, are due no deference on appeal.⁴¹ This approach has resulted in a trend, noted even among observers outside the legal community, of reinstating death sentences where lower...