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SCOTUS Clarifies Prejudice Standard Under Strickland for Ineffective Assistance of Counsel Claims at Capital Sentencing

by Sam Rutherford

The Supreme Court of the United States clarified the governing test for determining whether errors defense counsel made during a capital sentencing hearing resulted in sufficient prejudice to require a new sentencing proceeding. Specifically, the Court held that lower courts must weigh the evidence supporting aggravating circumstances that was presented at trial against the evidence supporting mitigating circumstances that defense counsel failed to develop to determine whether counsel’s errors resulted in a reasonable probability that the defendant would not have been sentenced to death.

Background

In 1992, in Arizona, Danny Lee Jones murdered Robert Weaver, his 7-­year-­old daughter Tisha Weaver, and his grandmother Katherine Gumina. Jones committed these murders to steal Robert’s gun collection worth about $2,000.00. He then sold the guns and used the money to fund a trip to Las Vegas.

The crimes were brutal. Jones beat Robert unconscious with a baseball bat after spending the day drinking with him, then headed inside Robert’s home where he encountered Katherine, who was watching TV, and Tisha, who was coloring in a workbook. Jones struck Katherine so hard he cracked her skull. He then dragged Tisha out from underneath a bed, smashed her skull open with the bat, and smothered her with a pillow.

Jones began loading the guns into Katherine’s car when Robert regained consciousness, so Jones chased him through the house and into the garage where he beat Robert to death with the bat. Blood was everywhere. Robert’s wife came home from work and discovered the gruesome scene. Robert and Tisha were pronounced dead at the scene; Katherine died 17 months later as a result of her injuries.

Jones was eventually apprehended and charged with two counts of premeditated first-­degree murder and one count of attempted premeditated first-­degree murder. A jury convicted him as charged, and the trial court proceeded to the sentencing phase.

Under Arizona law in effect at the time, the trial court was required to impose a death sentence if it found one or more statutory aggravating circumstances and no mitigating circumstances sufficiently substantial to call for leniency. Ariz. Rev. Stat. Ann. §13-­703(E) (1993). The court found four aggravating circumstances: (1) Jones committed multiple homicides, (2) he was motivated by pecuniary gain, (3) the murders were especially heinous, and (4) he killed a child.

Defense counsel presented the following mitigating evidence: Jones (1) was physically abused as a child by his father and first stepfather, (2) was introduced to drugs as a preteen by his grandfather and uncle, and (3) had sustained severe head injuries that left him with constant headaches. Defense counsel also presented testimony from Dr. Jack Potts who opined that the abuse Jones suffered as a child irreparably damaged him psychologically, that his early and prolonged drug abuse was a major contributor to the murders, and that he suffered from major mental illnesses including Bipolar Affective Disorder. Dr. Potts also testified that Jones was remorseful and had potential for rehabilitation.

The trial court concluded that these mitigating circumstances were not sufficient to overcome the aggravating ones, so it imposed a death sentence. The Arizona Supreme Court upheld this finding after reviewing the entire record and reweighing all of the aggravating and mitigating evidence presented at sentencing.

Jones then sought postconviction relief by filing a petition in the trial court, arguing that defense counsel should have retained an independent neuropsychologist instead of Dr. Potts. Jones also argued that defense counsel failed to timely request neurological or neuropsychological testing. The trial court held a hearing on the petition but denied it on its merits. Specifically, the trial court noted that Dr. Potts “was a very good expert” at trial and “was defense oriented.” The Arizona Supreme Court upheld this ruling in an unpublished order.

Jones then filed a petition for writ of habeas corpus in the U.S. District Court for the District of Arizona. That court, too, held an evidentiary hearing on Jones’ ineffective assistance of counsel claim and rejected it on the merits. The District Court, like the state trial court, held that defense counsel’s failure to develop and present additional mitigation evidence at sentencing was not prejudicial because the new evidence “‘barely … alter[ed] the sentencing profile presented to the sentencing judge.’”

The Ninth Circuit reversed, ordering the District Court to grant Jones’ habeas petition as to his death sentence. The U.S. Supreme Court, however, vacated and remanded for the Ninth Circuit to reconsider whether the District Court had properly held an evidentiary hearing under Cullen v. Pinholster, 563 U.S. 170 (2011). Ryan v. Jones, 563 U.S. 932 (2011).

On remand, the Ninth Circuit again granted habeas relief, finding defense counsel’s failure to present additional expert testimony concerning Jones’ neurological and psychological disorders was sufficiently prejudicial to warrant a new sentencing hearing. The three-­judge panel also held that the District Court erred by “weigh[ing] the testimony of [competing] experts against each other.” Although the Ninth Circuit denied Arizona’s petition for rehearing en banc, 10 members of the court dissented. The dissenters asserted that the panel erred in finding prejudice by crediting “questionable, weak, and cumulative mitigation evidence” as “enough to overcome … weight[y] … aggravating circumstances.”

The U.S. Supreme Court granted Arizona’s petition for writ of certiorari to review the Ninth Circuit’s interpretation and application of the Strickland standard for assessing claims of ineffective assistance of counsel.

Analysis

To establish ineffective assistance of counsel in violation of the Sixth Amendment, the defendant must show that counsel provided “deficient” performance that “prejudiced” him. Strickland. The question in this case was whether defense counsel’s failure to present additional expert testimony concerning Jones’ neurological and psychological disorders to mitigate the death sentence was sufficiently prejudicial under Strickland.

“When an ineffective-­assistance-­of-­counsel claim is based on counsel’s performance at the sentencing phase of a capital case, a defendant is prejudiced only if ‘there is a reasonable probability that, absent [counsel’s] errors, the sentencer … would have concluded that the balance of aggravating and mitigating circumstances did not warrant death,’” the Court stated. Quoting Strickland. “A reasonable probability is a probability sufficient to undermine confidence in the outcome. That requires a substantial, not just conceivable, likelihood of a different result.” Pinholster. Courts must weigh the “totality” of the evidence before the sentencer, both mitigating and aggravating, to make this determination. Strickland.

As the Court explained, the “Ninth Circuit departed from these well-­established rules in at least three ways.” “First, it failed adequately to take into account the weighty aggravating circumstances in this case.” The three-­judge panel failed to give the aggravating circumstances presented by the prosecution during Jones’ sentencing hearing “the weight that they would almost certainly be accorded by an Arizona sentencing judge.” Those aggravating circumstances—multiple murders committed in a particularly brutal manner for pecuniary gain and involving the death of a young child—“are given great weight in Arizona.” In fact, the Arizona Supreme Court has never vacated a death sentence involving multiple murders, much less a case like Jones’ that also entailed additional aggravating circumstances, so it is unlikely that any amount of additional mitigation evidence could create a “reasonable probability of escaping the death penalty,” the Court reasoned.

“Second, the Ninth Circuit applied a strange Circuit rule that prohibits a court in a Strickland case from assessing the relative strength of expert witness testimony.” This rule is “unsound” because the only way a District Court can determine whether defense counsel’s failure to present additional expert testimony was prejudicial is to conduct a “comparative analysis” of that evidence against expert testimony presented by the prosecution. Conducting this analysis in Jones’ case showed that most of the expert evidence he claimed defense counsel failed to present was cumulative of testimony from Dr. Potts. Thus, the Court concluded that there was “no reasonable chance” that the Arizona courts “would reach a different result on a second look at essentially the same evidence.”

“Third, the Ninth Circuit held that the District Court erred by attaching diminished persuasive value to Jones’s mental health conditions because it saw no link between those conditions and Jones’s conduct when he committed the three murders,” the Court stated. None of Jones’ additional experts opined that the neurological and psychological disorders he suffers from “affected Jones on the night of the murders.” Under Arizona law, evidence of a defendant’s mental impairments must be linked to his crimes before it will be considered as a mitigating factor, so Jones’ experts “would have done him little good in the Arizona courts,” explained the Court. While a sentencing may not “refuse to consider … any relevant mitigating evidence,” Eddings v. Oklahoma, 455 U. S. 104 (1982), nothing prevents the sentencer from finding the evidence unpersuasive because it is not linked to the defendant’s crimes or moral culpability.

“When a capital defendant claims that he was prejudiced at sentencing because counsel failed to present available mitigating evidence, a court must decide whether it is reasonably likely that the additional evidence would have avoided a death sentence. This analysis requires an evaluation of the strength of all the evidence and a comparison of the weight of aggravating and mitigating factors,” according to the Court. Applying this standard to Jones showed that he was not prejudiced by counsel’s errors. Thus, the Court ruled that the Ninth Circuit erred in concluding otherwise because “it downplayed the serious aggravating factors present here and overstated the strength of mitigating evidence that differed very little from the evidence presented at sentencing.”

Conclusion

Accordingly, the Court reversed the Ninth Circuit opinion granting Jones’ habeas petition, affirmed the District Court’s decision denying relief, and reinstated Jones’ death sentence. See: Thornell v. Jones, 144 S. Ct. 1302 (2024).  

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