91185
PRISONER NUMBER
LOUISIANA STATE PENITENTIARY
PLACE OF CONFINEMENT
VS.
LARRY D. SMITH, WARDEN,
LOUISIANA STATE PENITENTIARY,
ANGOLA, LOUISIANA, :
CUSTODIAN.
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2)
DALTON PREJEAN, PETITIONER
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NO. 3
FOURTH JUDICIAL
DISTRICT COURT
PARISH OF OUACHITA
STATE OF LOUISIANA
EMERGENCY :
MR. PREJEAN IS
PRESENTLY SCHEDULED TO
BE EXECUTED ON OCTOBER
20, 1989 BETWEEN THE
HOURS OF MIDNIGHT AND
3:00 A.M.
APPLICATION FOR POST-CONVICTION RELIEF
AND FOR ISSUANCE OF THE GREAT WRIT OF
HABEAS CORPUS AND FOR EVIDENTIARY HEARING AND
STAY OF EXECUTION
PLEASE SERVE:
LARRY D. SMITH
WARDEN,
LOUISIANA STATE PRISON
ANGOLA, LOUISIANA
J. NATHAN STANSBURY
DISTRICT ATTORNEY
PARISH OF LAFAYETTE
COURT HOUSE BUILDING
LAFAYETTE, LOUISIANA
ICATION FOR POST-CONVICTION REL AND FOR
ISSUANCE OF THE GREAT WRIT OF HABEAS CORPUS AND FOR
EVIDENTIARY HEARING AND STAY OF EXECUTION
"At the outset, it is important to correctly
characterize this case. Petitioner Duwlton Prejean is
black and is a borderline mental retardate. He was
convicted by an all-white jury. The conviction is for the
murder of a white, Louisiana State trooper. The offense
occurred when Prejean was seventeen years of age, "1 and
because of trial counsel’s ineffective assistance, the
jury that sentenced Prejean to die was unaware that
because of brain damage and psychological defects beyond
his control, he shot the trooper in a misguided attempt to
protect his brother.
Pursuant to the provisions of La. Code Crim.
Proc. art. 924, Petitioner respectfully seeks relief from
his conviction for first degree murder and sentence of
death. Petitioner has never had an evidentiary hearing on
the claims presented in this application, and these claims
raise questions of fact and law that cannot properly be
resolved on the record of the proceedings to date.
Accordingly, Petitioner requests that an evidentiary
hearing be conducted pursuant to La. Code of Crim. Proc.
art. 930 and that he he granted a stay of execution
pending the outcome of that hearing.
In support of this application, Petitioner
alleges the following:
I.
The judgment of conviction and sentence being
challenged were entered in the Fourth Judicial District
Le Prejean v. Blackburn, 743 F.2d 1091, 1105 (5th Cir.
1984) (Johnson, C.J., dissenting), modified on other
grounds sub nom. Prejean v. Maggio, 765 F.2d 482 (5th
Cir. 1985), cert. denied sub nom. Prejean v.
Blackburn, 109 S. Ct. 3259 (1989).
Court, Ouachita Parish, State of Louisiana. State v.
Prejean, No. 38,267 (May 11, 1978).
Lis
Petitioner was convicted of first degree murder
on May 3, 1978. The jury recommended a death sentence on
May 3, 1978. The sentence of death was imposed by the
court on May 11, 1978.
i
The jury recommended the sentence of death by
electrocution based upon a finding of one statutory
aggravating circumstance, that the victim was a peace
officer engaged in his lawful duties. La. Code Crim.
Proc. Ann. art. 905.4(b) (West 1984).
IV.
The offense involved is first degree murder
under 1976 La. Acts, No. 657, amending La. Rev. Stat. Ann.
§ 14:30 (West 1974).
Ve
Petitioner pleaded not guilty to the charged
offense. At his plea, Petitioner was represented by his
court-appointed attorney:
Thomas E. Guilbeau, Esq.
Post Office Box 3331
Lafayette, Louisiana 70502.
VI.
Petitioner was tried before a jury.
Vile
At his trial, Petitioner was represented by his
court-appointed attorney:
Thomas E. Guilbeau, Esq.
Post Office Box 3331
Lafayette, Louisiana 70502.
Vii»
Petitioner did not testify at any point during
his trial or sentencing hearing.
IX.
Petitioner was represented at his sentencing
hearing by his court-appointed attorney:
Thomas E. Guilbeau, Esq.
Post Office Box 3331
Lafayette, Louisiana 70502.
X.
On May 11, 1978, upon motion of defense counsel,
Petitioner was granted an appeal to the Louisiana Supreme
Court from the judgment of conviction of first degree
murder, the recommendation of the death penalty by the
jury, and the imposition of the death penalty by judgment
of the court.
XI (a).
The Louisiana Supreme Court affirmed the
conviction and death sentence, and denied the petition for
rehearing. State v. Prejean, No. 64813, 379 So. 2d 240
(November 29, 1979), reh’g denied, 379 So. 2d 240 (Janu-
ary 28, 1980).
XI(b).
Petitioner was represented on appeal by his
court-appointed attorney:
Thomas E. Guilbeau, Esq.
Post Office Box 3331
Lafayette, Louisiana 70502.
XII.
On June 23, 1980, Petitioner filed a petition
for a writ of certiorari from the Supreme Court of
Louisiana to the Supreme Court of the United States
raising the following claim:
The Louisiana Supreme Court rule which requires
only a district-wide review of death sentences
rather than a state-wide review to determine
excessiveness is unconstitutional.
On October 6, 1980, the petition was denied,
with two Justices dissenting. Prejean v. Louisiana, 449
U.S. 891 (1980). The petition for rehearing was denied.
Prejean v. Louisiana, 449 U.S. 1027 (1980)
XIII (a).
Petitioner previously filed applications for
post-conviction relief with respect to this judgment in
state and federal court.
XIII(b).
On March 31, 1981, Petitioner filed an Applica-
tion for Post-Conviction Relief in the Fourth Judicial
District Court, Ouachita Parish, raising the following
claims:
Claim I: The proportionality review conducted
by the Supreme Court of Louisiana was constitu-
tionally inadequate.
Claim II: Petitioner’s death sentence was
disproportionate and excessive under Louisiana
law and the eighth and fourteenth amendments to
the United States Constitution.
Claim III: The trial court’s errors in instruc-
ting the jury at the sentencing phase violated
Petitioner’s eighth and fourteenth amendment
rights.
Claim IV: The Louisiana death penalty statute
violates the eighth and fourteenth amendments
because it fails to provide adequate statutory
guidance for the jury’s consideration of mitiga-
ting and aggravating circumstances.
Claim V: The exclusion of prospective jurors
for cause, solely because they opposed capital
punishment, deprived Petitioner of his right to
a jury representative of a cross-section of the
community.
Claim VI: The exclusion for cause of a juror
who did not express in unequivocal terms her
inability to return a death verdict deprived
Petitioner of a fair and impartial jury under
the sixth, eighth and fourteenth amendments.
Claim VII: The prosecutor’s deliberate use of
peremptory challenges to exclude blacks from the
jury, and the trial court’s denial of a con-
tinuance or reasonable opportunity for Petition-
er to establish that such exclusion was sys-
tematic, violated Petitioner’s right to a fair
and impartial jury under the sixth and four-
teenth amendments, and his right to equal
protection under the fourteenth amendment.
Claim VIII: Petitioner was deprived of a fair
and impartial jury when the trial court allowed
into evidence two photographs of the victim
which were gruesome and inflammatory.
Claim IX: The trial court erred in allowing,
over Petitioner’s objection, the prosecutor to
present evidence against the mitigating factor
of intoxication during that portion of the trial
that dealt solely with aggravating cir-
cumstances.
Claim X: Louisiana procedures for executing
death warrants violate the Louisiana Constitu-
cion.
Claim XI: The general venire in Petitioner’s
Case was selected improperly under Louisiana
law.
Claim XII: A stay of execution should be
granted until the United States Supreme Court
decides Eddings v. Oklahoma. ?
XIII(c).
Petitioner’s application was denied on April 9,
1981, without an evidentiary hearing. On that same day,
Petitioner sought review in the Louisiana Supreme Court of
the summary denial. Review was denied. State ex rel.
Prejean v. Blackburn, 397 So. 2d 517 (La. 1981).
XIII(d).
On April 13, 1981, Petitioner filed a petition
for habeas corpus relief in the United States District
Court for the Western District of Louisiana, Monroe
Division, raising all of the foregoing claims. That court
dismissed Petitioner’s application without prejudice so
that he could exhaust Claim XII in state court. Prejean
v. Blackburn, Civ. Action No. 81-0632 (September 2, 1981).
Za Claim XI was raised for the first time in a sup-
plemental amendment to the original petition filed
with the Fourth Judicial District Court of Ouachita
Parish on April 3, 1981.
ce Claim XII was raised for the first time in a sup-
| plemental amendment to the original petition filed
with the Fourth Judicial District Court of Ouachita
Parish on April 7, 1981.
XIII(e).
Petitioner then filed a second Application for
Post-Conviction Relief in the Fourth Judicial District
Court, Ouachita Parish, on September 25, 1981. This
application raised the following claims:
Claim I: The imposition of the death penalty on
an individual who was 17 years old at the time
of the offense constitutes cruel and unusual
punishment.
Claim II: The death penalty imposed upon
Petitioner was a direct result of intentional
racial discrimination.
Claim III: The death penalty imposed upon
Petitioner resulted from intentional racial
discrimination based on the race of the victim
and the race of Petitioner.
Claim IV: The Louisiana Supreme Court’s reli-
ance in affirming Petitioner’s death sentence
upon hearsay information not before the jury
violated Petitioner’s due process rights.
Claim V: The systematic exclusion of certain
persons qualified to serve on the jury denied
Petitioner his right to a fair and impartial
jury chosen from a cross-section of the com-
munity.
XIII(f).
The court denied this application on October 5,
1981, without an evidentiary hearing. Petitioner sought
review of that summary denial in the Louisiana Supreme
Court; review was denied on November 27, 1981. State ex
rel. Prejean v. Blackburn, 407 So. 2d 1189 (La. 1981).
XIII(g).
On February 23, 1982, Petitioner filed a Peti-
tion for a Writ of Habeas Corpus in the United States
District Court for the Western District of Louisiana,
Monroe Division, based upon the claims previously raised
in his state petitions. The court denied his application
on August 5, 1983, without an evidentiary hearing.
Prejean v. Blackburn, 570 F. Supp. 985 (W.D. La. 1983).
Petitioner appealed this decision to the United States
Court of Appeals for the Fifth Circuit. On October 15,
1984, the Fifth Circuit affirmed the decision of the
District Court by a 2-1 vote. Prejean v. Blackburn, 743
F.2d 1091 (5th Cir. 1984). Rehearing and rehearing en
banc were denied on July 15, 1985. Prejean v. Maggio, 765
F.2d 482 (5th Cir. 1985). The Fifth Circuit subsequently
granted a stay of execution pending disposition of Peti-
tioner’s Petition for Certiorari (No. 85-5069) by the
United States Supreme Court. The United States Supreme
Court denied certiorari on July 3, 1989.
XIII(h).
Throughout the foregoing state court proceedings
and in the first habeas corpus proceeding in United States
District Court, Petitioner was represented by:
Thomas E. Guilbeau, Esq.
Post Office Box 3331
Lafayette, Louisiana 70502.
When the first habeas corpus proceeding was renewed in
United States District Court, Petitioner was also repre-
sented by:
John Charles Boger, Esq.
99 Hudson Street, 16th Floor
New York, New York 10013.
On appeal of the district court’s denial of his petition
for a writ of habeas corpus, Petitioner was also
represented by:
John H. Hall, Esq.
Kenneth E. Wile, Esq.
Susan G. Pender, Esq.
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Mitchell A. Karlan, Esq.
9 West 57th Street
New York, New York 10019
Samuel S. Dalton
Dalton, Gillen & Roniger
2001 Jefferson Highway
Jefferson, Louisiana 70181-0501
SUMMARY OF CLAIMS
The Constitution will not tolerate a death
sentence resulting from unreliable procedures. As set
forth more fully below, the process by which the Peti-
tioner was convicted and sentenced overstepped this
constitutional boundary in several significant ways.
First, the Petitioner received ineffective
assistance of counsel in violation of his rights under the
sixth and fourteenth amendments of the United States
Constitution and Article I, section 13 of the Louisiana
Constitution. Counsel failed adequately to investigate
his client or the circumstances surrounding the crime
charged. At the guilt-innocence phase, counsel conceded
the Petitioner’s guilt to first-degree murder and failed
to deal effectively with two issues -- intoxication and
provocation -- that would have advanced the defense’s plea
for mitigation at sentencing.
Counsel’s performance with respect to sentencing
was equally deficient. Counsel waited to develop evidence
of mitigation until the sentencing phase and then
presented only the three most obvious mitigating factors
-- namely that, at the time of the crime, Petitioner was
drunk, 17, and mentally limited. Furthermore, counsel’s
presentation of these factors was so passive and
inadequate as to rob them of any force. For example,
counsel failed even to introduce evidence establishing
that Petitioner was still a juvenile at the time of the
crime.
Counsel also failed to investigate and develop
at least five mitigating circumstances:
1. Petitioner suffered from organic brain
damage that, coupled with neuropsychological
defects, prevented him from controlling his
violent impulses.
2. Petitioner’s strong feelings for his
brother and concern for his brother’s
safety were a direct result of Petitioner’s
unstable family life, his abuse by the woman
who raised him, and Petitioner’s
corresponding need for a father figure.
3. By his rough treatment of Petitioner’s
brother, the trooper provoked the shooting.
4. Petitioner’s violent, impulsive tendencies
were readily controllable by medication in a
structured environment.
5. Petitioner may not have shot Trooper
Cleveland if he had not been released
without supervision from the Louisiana
Training Institute, to which he had been
committed indefinitely.
Counsel also failed to develop and present mitigating
character evidence that was readily available. Any of
this omitted information, combined with the bare factors
actually proved, surely would have been sufficient to
persuade the jury to recommend life.
In short, this was a capital case where defense
counsel knew of three compelling mitigating factors and
should reasonably have known of at least five more.
Moreover, this case presented no aggravating circumstances
-- other than the identity of the victim -- likely to
incite the jury. Petitioner was not a rapist or a
torturer. Petitioner was not resisting his own arrest or
trying to prevent a felony arrest. Minimally competent
counsel would almost certainly have secured a life
sentence at the sentencing phase with far less mitigating
evidence at his disposal. Because Petitioner’s death
sentence is the direct result of his lawyer’s ineffective
assistance, that sentence cannot stand. At the very
least, Petitioner is entitled to an evidentiary hearing to
support his clain.
Second, even if counsel’s failure to present
and develop mitigating evidence did not violate the sixth
amendment, this failure violated the proscription against
arbitrary and capricious sentences found in the eighth and
fourteenth amendments of the United States Constitution
and in Article I, Section 16 of the Louisiana Constitution
of 1974 by precluding the individualized and reasoned
verdict that is constitutionally required.
Third, counsel’s failure to verify a misleading
and incomplete sentence investigation report violated the
Petitioner’s right to effective assistance of counsel
under the sixth and fourteenth amendments and Article I,
Section 13 of the Louisiana Constitution. Among other
things, the report failed to reflect the fact that the
Petitioner was both abused as a child and brain-damaged.
The Petitioner was prejudiced by counsel’s ineffectiveness
because the Louisiana Supreme Court relied heavily upon
the inaccurate report in affirming the Petitioner’s death
sentence.
Fourth, the State’s improper manipulation of the
proceedings that culminated in Petitioner’s death sentence
precluded the possibility of an impartial trial. Spec-
ifically, the prosecutor hand-picked the trial judge, who
arbitrarily transferred the case to a parish renowned for
rampant racial discrimination and continued to preside
over the case despite this change of venue. The
prosecutor also charged the Petitioner as an adult even
though he had the mental age of a thirteen year old, and
the prosecutor later used his peremptory challenges to
exclude blacks from Petitioner’s jury. Finally, the
prosecutor appears to have engaged in ex parte
communications with the judge’s chambers, unfairly gaining
information about Petitioner’s legal arguments. As 2
result of these actions, the State effectively obtained a
tribunal organized to return a sentence of death in
violation of Article I, Section 16 of the Louisiana
Constitution and the fourteenth amendment of the United
States Constitution.
Fifth, the trial court’s instructions during
the sentencing phase of trial prevented the jury from
giving full consideration to the Petitioner’s mental
retardation as a mitigating factor. In permitting the jury
to consider retardation only if it constituted extreme
mental disturbance or if it impaired the capacity to
appreciate the criminality of conduct, the instructions
precluded the jury from conducting the individualized
sentence review required by the due process clause and the
eighth amendment and by Article I, Section 20 of the
Louisiana Constitution.
Sixth, the prosecutor’s use of his peremptory
challenges to select an all-white jury violated
Petitioner’s right to equal protection under Batson v.
Kentucky, 476 U.S. 79 (1986) and Article I, Section 3 of
the Louisiana Constitution, and thereby deprived the
jury’s death sentence of the reliability required by the
Constitution.4 The prosecutor’s deliberate selection of
an all-white jury also violated Petitioner’s sixth and
eighth amendment rights and his rights under Article l,
Sections 16 and 20 of the Louisiana Constitution. The
sixth amendment issue is currently before the United
States Supreme Court in Holland v.- Illinois, 121 Ill. 2d
136, 520 N.E.2d 270, cert. granted, 109 S. Ct. 1309
(1989).
ee
4. In light of the significant mitigating factors
raised here, the general retroactivity test
109 S. Ct. 1060 (1989), requires that this Court
apply the Batson test of a constitutional violation
and vacate Petitioner’s death sentence as unreliable.
If this Court refuses to apply Batson to this case,
Petitioner is entitled to an opportunity to
establish that the State’s conduct violated
Petitioner’s equal protection rights under Swain v.
Alabama, 380 U.S. 202 (1965).
Seventh, the reliability of the jury’s deter-
mination was undermined by a provision in the Louisiana
Code of Criminal Procedure that prohibited the Petitioner
from entering an unqualified plea of guilty. This
provision violated Article I, Section 20 of the Louisiana
Constitution and the eighth amendment’s prohibition
against arbitrary and capricious imposition of the death
penalty by prejudicing the sentencing jury’s perceptions
of the Petitioner in two ways: it forced the Petitioner
to inflame the jury by protesting his innocence despite
the overwhelming evidence that he shot the trooper; and it
prevented the Petitioner from admitting his guilt and
thereby expressing remorse that could have substantiated
his strength of character and been considered in
mitigation at sentencing.
The mandatory plea of innocence also violated
the Petitioner’s privilege against self-incrimination
under the fifth amendment of the United States
Constitution and Article I, Section 16 of the Louisiana
Constitution. By forcing the Petitioner to enter a plea
of not guilty despite the strong evidence that he
committed the crime, the State placed tremendous pressure
on the Petitioner to testify as to his guilt and remorse,
rather than exercise his privilege to remain silent.
Particularly because the Petitioner ultimately decided to
maintain his silence and thereby left the impression that
he felt no remorse, the state-imposed plea of not-guilty
imposed "costs" antithetical to the privilege and in
violation of the Constitution.
Eighth, the execution of a mentally retarded
and brain-damaged juvenile violates the proscriptions
against cruel and unusual punishment of the eighth
amendment of the United States Constitution and Article I,
Section 20 of the Louisiana Constitution. The twin goals
of capital punishment -- retribution and deterrence --
assume a defendant capable of controlling his conduct.
These objectives are not served by application of the
death penalty to a brain-damaged juvenile.
Ninth, because the Louisiana legislature did
not intend to expose juvenile offenders to capital
punishment, the Petitioner’s sentence violates the eighth
and fourteenth amendments of the United States
Constitution and Article I, Section 20 of the Louisiana
Constitution. The Louisiana capital punishment statute
neither establishes a minimum age of death-eligibility nor
explicitly authorizes the execution of juveniles.
Petitioner’s sentence must be vacated because it rests
upon an ambiguous statutory premise.
Tenth, the Louisiana Supreme Court affirmed
Petitioner’s death sentence on the ee of a sentence
report that was sealed from the public in violation of the
Petitioner’s rights under the sixth amendment and Article
I, Section 16 of the Louisiana Constitution. Louisiana’s
interest in confidentiality justifies neither the sealing
of sentencing reports in every case in which the death
penalty has been imposed nor the absence of a requirement
that the Louisiana Supreme Court consider alternatives
less restrictive than the sealing of reports in their
entirety. Because the Petitioner’s sentence report was,
in fact, erroneous in critical respects, the unavail-
ability of public comment to correct it materially dimi-
nished the reliability of the Louisiana Supreme Court’s
review of the proportionality of the sentence.
For these reasons, the Petitioner is entitled to
a-new trial, or at the very least, a new sentencing
hearing.
14
REASONS FOR GRANTING A
STAY OF EXECUTION
Petitioner is entitled to a stay of execution
for two reasons. First, Petitioner has never had an
evidentiary hearing on the fourteen meritorious
constitutional claims in this Application for Post-
Conviction Relief, seven of which involve material issues
of fact and cannot properly be resolved without an
evidentiary hearing. Second, this Court should grant a
stay of execution pending the United States Supreme
Court’s decision in Holland v. Illinois, on which
certiorari was granted on February 27, 1989.
A. Petitioner Has Alleged Numerous
Violations Of His Rights Under The
Federal And State Constitutions
That Require An Evidentiary Hearing.
The Louisiana Supreme Court has not articulated
a standard to determine when a stay of execution pending
an evidentiary hearing is required. However, Louisiana
state district courts consistently recognize that a stay
of execution is proper pending a determination of the
merits of a petitioner’s claims through an evidentiary
hearing or after the State has had an opportunity to
respond. See, e.g., Thompson v. Butler, No. 306-526,
Orleans Parish Criminal District Court (March 31, 1989);
Williams v. Butler, No. 33,481, 35th Judicial District
Court (July 5, 1989); Bates v. Butler, No. 84-0947-A, 27th
Judicial District Court (October 22, 1987); Busby v.
Blackburn, No. 38,380, 30th Judicial District Court
(September 22, 1986); Jones v. Butler, No. 89-KD-2020
(August 24, 1989) (hearing ordered by La. Sup. Ct. on
issue addressed in Batson v. Kentucky, 476 U.S. 79
(1986) ); Ward v. Butler, No. 89-KD-2092 (September 5,
1989) (setting aside order of execution in case raising
issues under Penry v. Lynaugh, 109 S. Ct. 2934 (1989)).
As set forth below, at least seven of the claims raised in
this Application for Post-Conviction Relief involve
material questions of fact that demand an evidentiary
hearing to be fairly resolved.
i An evidentiary hearing is needed to
fairly resolve Petitioner’s claim that
at the guilt-innocence phase of his
trial, he was denied his constitutional
right to effective assistance of counsel.
Petitioner is entitled to a hearing to sub-
stantiate his claim that his attorney provided ineffective
assistance at the guilt phase of his trial by: (a) failing
to investigate adequately the circumstances surrounding
the crime charged; (b) failing to deal effectively with
pivotal issues raised at trial; and (Cc) unequivocally
conceding his client’s guilt to first degree murder.
Witnesses will testify about counsel’s performance at
trial and the issues that he failed to investigate or
present effectively. Testimony will establish, among
other things, that Petitioner was unusually close to his
brother Joseph, that Petitioner was aggravated by Officer
Cleveland’s rough treatment of Joseph, and that Petitioner
had consumed a dangerous mixture of alcohol and drugs
before the shooting. The witnesses that Petitioner
intends to call on this claim include: (a) Thomas E.
Guilbeau; (b) Dr. David C. Bear; (c) Michael Sam;
(d) Joseph Prejean; (e) Rosemary Prejean; (f) Carlton
Savoy; (g) Donna Thibodeaux; and (h) Gerald J. Block.
2. An evidentiary hearing is needed to
fairly resolve Petitioner’s claim
that at the sentencing phase of his
trial, he was denied his constitutional
right to effective assistance of counsel.
Petitioner is entitled to a hearing to establish
that during the sentencing phase of his trial, his counsel
inexcusably failed to present many crucial mitigating
16
factors to the jury and presented three other mitigating
factors so ineffectively that Petitioner was deprived of
the counsel guaranteed by the Louisiana state and federal
Constitutions. Witnesses will include: (a) Gerald J.
Block; (b) Thomas E. Guilbeau; (c) Johnnie Stewart;
(ad) Robbie Grover Powers; (e) Dr. David M. Bear;
(f) Michael Sam; (g) Dr. William Hawkins; (h) Rev. Marion
L. Bryant; (i) Lori R. Morris; (j) Avis Lanell Deliphose;
(k) Joseph Prejean; (1) Rosemary Prejean; (m) Carlton J.
Savoy, Jr.; (n) Anna Gail Prejean Thibodeaux; and (o) Anna
Marie Prejean.
ae An evidentiary hearing is necessary to
fairly resolve Petitioner’s claim that
counsel’s failure to introduce critical
mitigating evidence deprived him of his
eighth and fourteenth amendment protection
against an arbitrary and capricious
sentence.
Petitioner is entitled to an evidentiary hearing
to prove that he was deprived of his eighth and fourteenth
amendment protection against an arbitrary and capricious
sentence when, as detailed in Claim II, counsel failed to
introduce critical and readily available evidence of
mitigating circumstances. The evidence Petitioner intends
to introduce in support of this claim is the same as that
relating to Claim II.
4. An evidentiary hearing is necessary
to resolve Petitioner’s claim that
he was denied his constitutional
right to effective assistance of
counsel in the preparation and
submission of the sentence investi-
gation report to the Louisiana
Supreme Court.
Petitioner is entitled to an evidentiary hearing
to establish that counsel provided ineffective assistance
by failing to prepare for or verify the accuracy of the
Sentence Investigation Report prepared by the Louisiana
Department of Corrections pursuant to Rule 905.9.1 of the
Louisiana Code of Criminal Procedure and relied on by the
Louisiana Supreme Court in affirming Petitioner’s death
sentence. Petitioner intends to introduce evidence of
significant inaccuracies and omissions in the report that
would have been corrected by reasonably effective counsel,
and that, left uncorrected, severely diminished any chance
that Petitioner’s sentence would receive a meaningful
review. Witnesses to be called at an evidentiary hearing
will include: (a) Thomas E. Guilbeau; (b) Rev. Marion L.
Bryant; (c) Johnnie Stewart; (d) Avis Lanell Deliphose;
(e) Lori R. Morris; (f) Dr. David M. Bear; (g) Rosemary
Prejean; (h) Joseph Prejean; and (i) Mrs. Robbie Grover
Powers.
5. An evidentiary hearing is needed to
fairly resolve Petitioner’s claim
that the State’s control over each
aspect of the proceedings deprived
him of the absolute impartiality
mandated in a capital case.
Petitioner is entitled to an evidentiary hearing
to prove that the prosecutor, in violation of Article I,
Section 16 of the Louisiana Constitution and the sixth and
fourteenth amendments to the U.S. Constitution, deprived
Petitioner of an impartial trial by manipulating the
proceedings in order to obtain "a tribunal organized to
return a sentence of death." Witherspoon v. Illinois, 391
U.S. 501, 521 (1968). Witnesses to be called shall
include: (a) The Honorable Hugh E. Brunson; (b) J. Nathan
Stansbury; (c) Joan Slaughter; (d) Thomas E. Guilbeau;
(e) Bernard Duhon; (f) Christine Simon; (g) Sally Lane;
and (h) other clerks and employees of the court or
district attorney’s office familiar with criminal-
docketing procedures.
18
6. An evidentiary hearing is needed to
fairly resolve Petitioner’s claim
that in violation of Petitioner’s
constitutional rights, the prosecution
improperly exercised its peremptory
challenges to exclude all black jurors
from the petit jury.
Petitioner is entitled to an evidentiary hearing
to demonstrate that the prosecutor’s exclusion of all
blacks from the petit jury violated his rights under the
sixth and eighth amendments to the United States
Constitution, the equal protection clause of the
fourteenth amendment, and Sections 3, 16, and 20 of the
Louisiana Constitution. At trial, the district attorney,
J. Nathan Stansbury, used his peremptory challenges to
exclude all four of the qualified black potential jurors.
As a result, Petitioner was tried, convicted, and
sentenced to death by an all-white jury. Petitioner
intends to demonstrate that the excluded black prospective
jurors were as qualified to serve as the white jurors who
were not excluded, and that the black jurors were excluded
solely on the basis of their race. Witnesses Petitioner
intends to call include Thomas E. Guilbeau and J. Nathan
Stansbury.
Petitioner also is entitled to a hearing to
determine whether the prosecutor violated Swain v.
Alabama, 380 U.S. 202 (1965), by systematically excluding
black jurors over a period of time. The evidence that
Prejean will present in support of this claim will include
(a) the race of the jurors excluded in this case; (b) the
number of strikes exercised by the prosecutors against
blacks in the parish in which the prosecutor practices and
in which Prejean was tried; and (c) testimony from
attorneys who have appeared in cases in which the
prosecutor used his peremptory strikes to eliminate blacks
from the jury.
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7. An evidentiary hearing is needed to
fairly resolve Petitioner’s claim
that the execution of a mentally
retarded and brain-damaged juvenile
offender is cruel, unusual, and
é ssive punishme
Petitioner is entitled to an evidentiary hearing
Petitioner
to establish that at the time of the shooting,
was a borderline mentally retarded juvenile who also
suffered from brain damage that prevented him from
controlling violent impulses. Petitioner thus belonged to
a category of juveniles who cannot be held responsible for
their actions, and his execution would therefore
constitute cruel and unusual punishment. Witnesses
Petitioner intends to call shall include: (a) Dr. David
M. Bear; and (b) Dr. William Hawkins.
B. This Court Should Grant A Stay Of Execution
Pending The United States Supreme Court’s
Decision In Holland v. Illinois.
The issue of whether a prosecutor’s use of
peremptory challenges to exclude blacks from the petit
jury violates the sixth amendment’s fair cross-section
requirement is currently before the United States Supreme
Court in Holland v. Illinois, 121 Ill.
109, 520 N.E.2da 270, cert. granted, 109 S. Ct.
se may provide yet another
Dec.
(1989). The outcome of this ca
basis for overturning Petitioner’s death sentence.
present case, the prosecutor used four peremptory
challenges to excuse black veniremen and thereby insu
that Petitioner would be tried by an all-white jury. This
court should stay Petitioner
Supreme Court has rendered its decision in the Holland
case because that ruling may well save Petitioner’s life.
20
FACTS
A. Dalton Prejean’s Background.
Dalton Prejean was born in Lafayette, Louisiana,
on December 10, 1959. When he was just two weeks old, his
mother sent him to live in Houston, Texas, with his aunt
and uncle, Mary and Earl Aubrey. > Mary Aubrey was an
alcoholic who became violent when drunk.©® Thus, during
his 12 years in Mary Aubrey’s household, Dalton was
persistently abused and neglected. ’
Mary beat Dalton almost daily with whatever was
at hand.® Sometimes she used branches off of the bushes
in her yard, other times a belt, an extension cord, or a
stick.? A childhood friend recalls that Dalton had welts
on the back of his neck and across his face from the
beatings.19 He was so afraid of Mary that he would hide
under his bed when she came home from work.11
Dalton did not have many friends, in part
because Mary Aubrey did not like him playing with other
children.12 He seemed "troubled" and was teased for being
5. Affidavit of Rosemary Prejean ("Rose Prejean Aff.")
(filed herewith as Appendix 1) ¢¢ 2-3; Affidavit of
Joseph Prejean ("Joseph Prejean Aff.") (filed
herewith as Appendix 2) ¢ 3. Dalton was known in
Houston as Earl Aubrey, Jr.
6. Joseph Prejean Aff. 44 5-6; Affidavit of Donna
Thibodeaux Prejean ("Donna Prejean Aff.") (filed
herewith as Appendix 3) 44 6-7; Affidavit of Lori R.
Morris ("Morris Aff.") (filed herewith as Appendix 4)
qq 18-19; Rose Prejean Aff. q 6.
7. Rose Prejean Aff. 44 3, 6-7; Morris Aff. FF 9-17;
Affidavit of Dr. David M. Bear ("Bear Aff.") (filed
herewith as Appendix 5) ¢ 14.
8. Morris Aff. q¢ 9.
9. Id. 4 12.
10. Id. 4 9.
lij Id. F il.
12. iG. ¢ 5.
"crazy" because he talked to himself and to imaginary
friends. 1l3
Dalton’s academic performance in elementary
school was poor, in keeping with his limited intellect.14
But in his early school years, Dalton did not have notable
behavioral problems and generally responded well to the
structured environment of the classroom.1!°>
When Dalton was 11 years old, he learned that
Mary and Earl Aubrey were not his real parents. 1® There-
after, Mary taunted Dalton with the fact that she was not
his real mother and told Dalton that his family in
Lafayette did not want him.1’ She said that Dalton was
not her responsibility and threatened to ship him back to
Louisiana whenever he misbehaved.18 Dalton was deeply
affected by the revelation that he had been given away at
birth. 19
As he approached adolescence, Dalton began to
change from a quiet and well-behaved churchgoing boy?29
13. Id. 44 7-8.
14. See Easter Elementary School Transcript for Earl
Aubrey, Jr. (a/k/a Dalton Prejean) (filed herewith as
Appendix 6).
15. Easter Elementary School Transcript for Earl Aubrey,
Jr., Grades for "Conduct."
16. Morris Aff. ¢ 16.
L?7. Gs | Avs
lis; Jd,
19. Sentence Investigation Report ("Sentence Report")
(filed herewith as Appendix 7) 3.
20. Affidavit of Rev. Marion L. Bryant ("Bryant
Aff.") (filed herewith as Appendix 8) || 8-12;
Affidavit of Avis Lanell Deliphose ("Deliphose
Aff.") (filed herewith as Appendix 9) | 6, 10;
Affidavit of Mrs. Robbie Grover Powers ("Powers
Aff.") (filed herewith as Appendix 10) 4 5-8;
Affidavit of Johnnie Stewart ("Stewart Aff.") (filed
herewith as Appendix 11) || 6-7.
into an incorrigible child.21 He became increasingly
difficult to manage and refused to attend school.22
It was about this time that the Aubreys decided
to send Dalton back to Lafayette to live with his mother,
Rosemary Prejean, and the rest of the Prejean family. 3
Thus, at a critical point in his adolescence, Dalton was
rejected by the only family he had ever known and sent to
live with the mother who had abandoned him at birth.
Upon moving to Lafayette, Dalton’s behavior
deteriorated further. Dalton was truant from school and
had difficulty gaining acceptance and respect among his
contemporaries. 24 Dalton’s family reports that he was
typically frustrated, depressed and alienated. 2° Everyone
who knew him saw that he was troubled and "did not have it
all".2© As in Houston, Dalton’s mental disabilities were
the butt of jokes. He had few friends, and other
children taunted him for being a "retard. "2/
Dalton spent most of his time alone or with his
older brother, Joseph, to whom he was extremely close. 28
21. Sentence Report 3.
22. Id.
23. Easter Elementary School Transcript for Earl Aubrey,
Jr.("*7l--was getting out of hand--mother transferred
him to La."); Joseph Prejean Aff. ¢ 7.- Dalton’s
father, Dennis Prejean, no longer lived with the
family in Louisiana. Joseph Prejean Aff. | 7.
24. Rose Prejean Aff. 4 10; Joseph Prejean Aff. | 10;
Affidavit of Carlton J. Savoy, Sr. ("Savoy Aff.")
(filed herewith as Appendix 12) | 4.
25. Savoy Aff. ¢ 3; Rose Prejean Aff. | 8; Joseph Prejean
Aff. ¢ 8.
26. Donna Prejean Aff. 4 3; Sentence Report 3 (quoting
Mary Aubrey).
27. Rose Prejean Aff. | 10; Savoy Aff. | 4; Joseph
Prejean Aff. ¢ 10.
28. Morris Aff. 44 20-22; Rose Prejean Aff. 4 11; Joseph
Prejean Aff. 44 10-12; Affidavit of Anna Gail Prejean
Thibodeaux ("Anna Thibodeaux Aff.") (filed herewith
as Appendix 13) 4 4.
23
It was common knowledge that Dalton would do anything to
protect his brother from harm.29
Dalton behaved strangely. 39 He often talked to
himself and mumbled incoherently. 31 He paced the floor
into the early morning hours while the rest of the family
slept.?2 When Dalton did Sleep, he kept one eye open at
all times. 33
Dalton often exhibited paranoia3?4 and had a
quick temper.?> He more than once reacted violently to
imagined threats to himself or family members,?© but dia
not fight unless he was provoked or felt cornered.?/7
Family members perceived that Dalton was not even aware of
his episodes of violence; they thought he was mentally
disturbed. 38
Dalton’s behavior in his early teens led to
several periods of institutionalization at the Louisiana
Training Institute ("LTI").39 From the age of 12 to 17,
Dalton was in and out of LTI for various juvenile of-
fenses, ranging from petty to extremely serious.?9 The
29. Joseph Prejean Aff. 4 13; Anna Thibodeaux Aff. 4 4.
30. Affidavit of Anna Marie Prejean ("Anna Prejean Aff.")
(filed herewith as Appendix 14) q 3.
31. Rose Prejean Aff. 4 7.
32. Joseph Prejean Aff. ¢ 9; Rose Prejean Aff. ¢ 9.
33. Sentence Report 6.
34. Dalton Prejean Juvenile Records from the Louisiana
Training Institute ("LTI Records"), Report of John
Burton ("Burton Report") (filed herewith as Appendix
15) dated June 6, 1972; id., Report of Dr. Patrick
Dowling dated July 31, 1974 ("Dowling Report") (filed
herewith as Appendix 16).
35. Anna Prejean Aff. | 4.
36. Donna Prejean Aff. 4 5; Joseph Prejean Aff. ¢ 13.
37. Anna Prejean Aff. 4¢ 4-5.
38. Sentence Report 6; Anna Prejean Aff. ¢ 3.
39. Sentence Report 3.
40. Ge
24
most serious offense was the killing of a taxicab driver
for which Dalton confessed, was adjudicated delinquent,
and was committed to LTI indefinitely. This adjudication,
along with the rest of Dalton’s juvenile record, was
deemed inadmissible at his trial for the shooting of the
trooper.
Notwithstanding his disturbed behavior outside
of LTI, Dalton behaved well in the structured environment
of the Institute. He was a model student4! who posed no
disciplinary problem, *2 adapted well to his peers,4? and
displayed a "general willingness to cooperate with [the]
staff and to follow [LTI] rules and regulations."44
On the other hand, psychiatric reports from LTI
indicate, among other things, that Dalton showed "almost
no evidence of superego structure" and that it was "ques-
tionable that he [knew] the difference between right and
wrong. "49 Psychiatrists also found evidence of schizo-
phrenia*® and diagnosed Dalton as having an Antisocial
Personality Disorder.*’ Dalton was placed on medication
used to treat psychosis and other mental disorders. 48
Long-term hospitalization was recommended,*9 and, since
41. Affidavit of John L. Kuehn, M.D. ("Kuehn Aff.")
(filed herewith as Appendix 17) Exh. C. (Mental
Health Consultant Report of Dr. John L. Kuehn, June
8, 1975).
42. LTI Records, 10/10/72 letter from LTI Superintendent
to Judge K. Saloom (filed herewith as Appendix 18).
43. Id.
44. LTI Records, 10/25/76 letter from LTI Superintendent
to Judge K. Saloom (filed herewith as Appendix 19).
45. Sentence Report 5 (quoting Dowling Report).
46. Kuehn Aff. 44 5-7, Exh. C.
47. Sentence Report 5 (quoting Dowling Report).
48. Kuehn Aff. 4 7, Exh. C; LTI Records, Report of Dr.
Frank C. Blackburn, psychologist, June 25, 1975
("Blackburn Report") (filed herewith as Appendix 20).
49. Sentence Report 5 (quoting Dowling Report).
25
the juvenile courts had jurisdiction over Dalton until he
was twenty-one, adherence to this recommendation would
have kept him confined until December 1980 -- two and a
half years after the shooting of Trooper Cleveland. °°
Later tests have established that Dalton is
brain-damaged in ways that almost certainly contributed to
his criminal behavior.-1 Specifically, Dalton has
suffered damage to both the frontal and parietal lobes of
his brain, which affect his judgment, perception, and
ability to control violent impulses. >2
Despite his mental illness and the recommend-
ations of staff members, however, Dalton was discharged in
1976 from LTI and placed into the custody of Mary
Aubrey. >? Incredibly, Dalton’s release was unsupervised,
even though a doctor who had evaluated him at LTI had
cautioned that "suitable conditions [should be imposed] to
be sure that he ha[d] adequate supervision and [was] going
to live in a fairly stable environment." This doctor also
suggested that fairly rigid probation requirements be
imposed. >4
Dalton remained only briefly in Houston after
his release from LTI.°° He soon returned to Lafayette to
be near Joseph, to whom Dalton had become profoundly
ae
50. See State v. Prejean, 379 So. 2d 240, 248 (La.
1979), cert. denied, 449 U.S. 891 (1980) (citing R.S.
13:1572, which was replaced by Article 89(F) (1) of
the Code of Juvenile Procedure).
51. Bear Aff. 4¢ 11-13, 24-
52. Id. 4¢ 11-13, 18-20.
53. Sentence Report 6; LTI Records, Discharge Order of
the Juvenile Court of Lafayette, Louisiana dated
December 8, 1986 (filed herewith as Appendix 21).
54. LTI Records, Report of Dr. George A. Bishop,
Psychologist, dated August 24, 1976 (filed herewith
as Appendix 22). see also State v. Prejean, 379 SO.
2d at 248.
55. Sentence Report 6.
26
attached.°© Dalton led an otherwise aimless existence.
He was not enrolled in school. He sought employment but,
unsurprisingly, was unable to hold onto a steady job.?7
He spent his time alone and was generally alienated from
others.-8 On occasion, he drank excessively; he used
drugs regularly.>°?
B. Events Of July 1 And 2, 1977.
On Friday, July 1, 1977, Dalton began drinking
at noon.®9 About 6:00 p.m., following an afternoon of
drinking, Dalton showed up at the home of Donna
Thibodeaux, his brother Joseph’s girlfriend. He was drunk
on arrival and continyed to drink at Donna’s house. ®1l
Later that night, Dalton and Joseph went to a
bar known as the "Harlem" with two friends, Michael
Broussard and Michael George. There, Dalton, along with
the others, kept drinking.©2 After a couple of hours, the
four returned to Donna Thibodeaux’s house.®3 Dalton was
visibly drunk. His eyes were half-closed, he looked
56. Id.; Bear Aff. 44 15-16; Joseph Prejean Aff. 4¢ 10-
13; Rose Prejean Aff. 4 11; Donna Prejean Aff. q 4;
Anna Thibodeaux Aff. ¢ 4; Morris Aff. || 20-22.
57. Sentence Report 6.
58. Savoy Aff. | 3; Joseph Prejean Aff. ¢ 10, Rose
Prejean Aff. q 8.
59. Affidavit of William A. Hawkins, Ph.D. ("Hawkins
Aff.") (filed herewith as Appendix 23) 4 8;
Supplementary Affidavit of Joseph Prejean ("Supp.
Joseph Prejean Aff.") (filed herewith as Appendix 24)
q il.
60. Joseph Prejean Aff. 4 14. The Supreme Court of
Louisiana’s summary of the facts is reported at State
v. Prejean, 379 So. 2d at 241-42.
61. Trial Transcript, State v. Prejean, La. District
Court, Fourth Judicial District, Ouachita Parish,
Docket No. 38,267 ("Tr.") 819; Joseph Prejean Aff.
5 15.
62. Tr. 647, 664, 693, 704; Joseph Prejean Aff. q 16.
63. Tr. 647, 694; Joseph Prejean Aff. ¢ 17.
drowsy, and his speech was slurred.©4 He and Joseph
nevertheless shared three beers there. ®©°
From Donna’s house, Dalton, Joseph, Broussard,
and George went to Roger’s Nite Club, located on the
Breaux Bridge Highway outside of Lafayette. On the way,
they stopped at a convenience store and purchased a fifth
of white port wine,®©® which they finished before they
arrived at Roger’s, shortly after midnight. ©’
At Roger’s, Dalton drank both beer and wine. ©8
He also took "black mollies"®? and smoked marijuana. 7°
One of the effects of this drinking and multiple drug use
was that Dalton became noticeably paranoid.’1 palton,
Joseph, Broussard and George left Roger’s about 5:00
a.m. /2 They were all in bad shape. Joseph threw up in
the parking lot on the way to the car.’3 Dalton, who had
trouble sleeping, was exhausted’4 and could not walk
straight. /7°
64. Tr. 821; Donna Prejean Aff. 4 10; Joseph Prejean
Aff. 4 21. |
65. Donna Prejean Aff. q 10.
66. Tr. 649, 667-68, 694-95, 706-07, 765.
67. Tr. 649-50, 669, 695, 708; Joseph Prejean Aff. | 19;
Savoy Aff. ¢ 5.
68. Tr. 651, 669-70, 678, 697, 707; Affidavit of Michael
Sam ("Sam Aff.") (filed herewith as Appendix 25) | 4
(referring to Thunderbird Whiskey, which is actually
fortified wine).
69. Joseph Prejean Aff. | 20.
70. Sam Aff. ¢ 5.
71. Supplemental Affidavit of Michael Sam ("Supp. Sam
Aff.") (filed herewith as Appendix 26) | 2.
72. Tr. 697.
73. Joseph Prejean Aff. | 22.
74. Bear Aff. | 21; Rose Prejean Aff. | 9; Joseph Prejean
Aff. 4 9.
75. Sam Aff. | 6.
28
All four got into Joseph’s car;’7©& palton took
the driver’s seat./?7 Joseph took the front passenger’s
seat; Broussard and George got into the back seat and
George promptly passed out./78 Dalton pulled out of the
lot right in front of Trooper Donald Cleveland’s
cruiser.’% Before they had travelled 100 yards, they were
stopped. 89
Dalton brought the car to a halt.81 He and his
brother switched places in the front seat because Dalton
did not have a driver’s license.®* Trooper Cleveland,
obviously incensed, approached the car, screaming at its
occupants, 93 and ordering the "driver" to get out of the
car. 84 Joseph got out and walked towards the officer.8°
With his gun unclipped, ®® the trooper shouted to Joseph,
"Get your goddam ass against the car."87 The trooper then
slammed Joseph against the hood of the police car,®8 and
pressed Joseph’s face against the metal.89 He then began
very roughly to search him. 99
76. Tr. 651-52; Joseph Prejean Aft. q 23.
77. Tr. 697; Joseph Prejean Aff. ¢ 23.
78. TF. 6352.
73s 28s SIUs
80. Tr. 5/70-71.
Sl. Tr. 698. .
82. Tr. 653, 671, 680, 699.
S83. Tr. 698.
84. Tr. 654; 699.
85. Tr. 571, 654, 698-99; Joseph Prejean Aff. | 24.
86. Joseph Prejean Aff. 4 26.
87. Id. | 24.
88. Id. | 24.
89. Id. ¢ 25.
Id. | 26.
ye
Dalton was convinced that the trooper was going
to hurt his brother.?21 He was undone by that prospect,
and unnerved by the trooper’s yelling. Dalton lost
control. He cried, "I can’t stand it he’s pushing my
brother."?2 He grabbed a revolver from under the car
seat, got out of the car and shot Trooper Cleveland. ??
After these events, Joseph and Dalton went to
ponna’s home.2?4 Dalton was still very drunk when he
arrived.?°2 When police officers came to arrest hima
short while later, Dalton did not seem to know what was
happening to him and surrendered meekly. ?°®
At the police station, Dalton confessed to the
shooting. When asked if he was sorry for what he had
done, he answered,
A. Yes, cause it wasn’t called for but at the
time - -
Q. Speak up.
A. At the time I wasn’t concentrating on it
through liquor and it happened so fast.?/
When Joseph was questioned by the police and was asked
whether Dalton realized what he was doing, Joseph respond-
ed
91. Id. ¢ 27.
92. Notice of Inculpatory Statements, La. Sup. Ct. Record
106 (filed herewith as Appendix 27).
93. Tr. 655, 658, 700.
94. Donna Prejean Aff. ¢ 12.
95. Id.
96. Id. 4 13; Supp. Joseph Prejean Aff. q 3-
97. Interview of Dalton Prejean at the Lafayette Parish
Sheriff’s Office, Detective Division, July 2, 1977,
10:30 a.m. (filed herewith as Appendix 28) at 10.
He realized that the officer is throwing me
against the car and you know it affected him and
he just went buzurk [sic]... .78
George and Broussard agreed that Dalton was provoked to
shoot the trooper:
Q. Why did Dalton shoot him? You know?
A. I guess simply because he was pushing on
his brother. ?
* * *
0. Did he say why he shot the officer?
A. Oh because he was, he said the officer was
hitting on his brother for nothing, that’s
all I know.190
In short, it was apparent to everyone involved in the
shooting that Dalton, in a drunken state, had shot the
trooper in a misguided attempt to protect his brother.
Petitioner’s counsel nevertheless failed to present this
evidence at trial.
C. Trial Court Proceedings.
La Appointment of counsel.
On July 2, 1977, Thomas E. Guilbeau received a
call from a friend at the Indigent Defender Program who
asked him if he would be interested in representing
Prejean.191 Guilbeau went quickly to the Parish jail and
met with Prejean.192 Although he had never tried a
98. Interview of Joseph Prejean at the Lafayette Parish
Sheriff’s Office, Detective Division, July 2, 1977,
1:05 p.m. (produced from the files of J . Nathan
Stansbury and filed herewith as Appendix 29) at 5.
99. Interview of Michael George, Lafayette Parish
Sheriff’s Office, Detective Division, July 2, 1977,
12:14 p.m. (produced from the files of J. Nathan
Stansbury and filed herewith as Appendix 30) at 4.
100. Interview of Michael Angelle (a/k/a Michael
Broussard), Lafayette Parish Sheriff’s Office,
Detective Division, July 2, 1977, 10:54 a.m.
(produced from the files of J. Nathan Stansbury and
filed herewith as Appendix 31) at 4.
101. Affidavit of Tnomas E. Guilbeau ("Guilbeau Aff.")
(filed herewith as Appendix 32) at 3.
102. Id. at 4.
capital case,193 Guilbeau agreed to act as Prejean’s
counsel.194
Zs The prosecutor’s selection of the
judge that presided over Petitioner’s
case.
The prosecutor’s office apparently had complete
control over the criminal docket when Petitioner’s case
was assigned to a judge. 1095 The prosecutor therefore was
able to select the judge whom he wished to preside over
Dalton’s trial and sentencing. Not surprisingly, the
prosecutor chose Judge Brunson, a former Assistant
District Attorney in the prosecutor’s office.
a. Petitioner’s arraignment as an adult
and state-coerced plea of not guilty.
Prejean was seventeen years old and therefore a
juvenile under Louisiana law when the shooting of Trooper
Cleveland took place. Petitioner also had a mental age
of only thirteen, 196 was borderline retarded, 197 and
suffered from organic brain defects.198 Nevertheless,
without any statutory criteria to guide him, the
prosecutor chose to ignore these obvious indications of
immaturity and charged Dalton as an adult.
103. Supplemental Affidavit of Thomas E. Guilbeau ("Supp.
Guilbeau Aff.") (filed herewith as Appendix 33) 2.
104. Guilbeau Aff. ¢ 3. The court formally appointed
Guilbeau on July 5. Id. at 8.
105. Stipulation in support of Motion for Random Selection
of Trial Judge between the State of Louisiana and
defense counsel in State v. Simpson, No. 88-CR-449965
(La. Dist. Ct. Jan 19, 1989) (filed herewith as
Appendix 34).
106. TE: O2i»
107. Tr. 828; Hawkins Aff. $ 11.
108. Bear Aff. 44 11-13.
On August 29, 1977, Dalton was formally ar-
raigned and charged with first-degree murder.199 He pled
not guilty, as he was required to do under Louisiana
law.110
4. Change of venue of the trial.
Dalton was scheduled to be tried in Lafayette
Parish. On September 30, 1977, Guilbeau moved for a
change of venue due to prejudicial pretrial publicity.1t11
This motion was denied by the trial judge on January 31,
1978,112 put after jury selection had commenced, the
parties agreed that pretrial publicity had made it
impossible to pick a jury in Lafayette.113 Judge Brunson
then ordered a change of venue to Ouachita Parish, which
had a predominantly white population and a notorious
recent history of racial discrimination.114
Judge Brunson took measures to ensure that he
would still preside over Petitioner’s case even after it
was transferred out of Lafayette. 115 This virtually
unprecedented result was achieved by having the Louisiana
Supreme Court temporarily appoint Judge Brunson to the
bench of Ouachita Parish.116
109. Minutes of Court ("Minutes"), La. Sup. Ct. Record
(filed herewith as Appendix 35) at 5.
110. Tr. 5; La. Code Crim. Proc. Ann. art. 557 (West
1981).
111. Motion for Change in Venue, La. Sup. Ct. Record 49
(filed herewith as Appendix 36).
112. Order Denying Motion to Change Venue, La. Sup. Ct.
Record 110 (filed herewith as Appendix 37).
113. Supp. Guilbeau Aff. q 3.
114. Order Granting Motion to Change Venue, La. Sup. Ct.
Record 111 (filed herewith as Appendix 38); Ausberry
v. City of Monroe, 456 F. Supp. 460, 463 (W.D. La. 1978).
115. Supp. Guilbeau Aff. | 4.
116. ids 9 5:
5. Selection of an all-white jury
over counsel’s objection.
Once the case had been transferred to Ouachita
Parish, the District Attorney and Guilbeau conducted a
voir dire examination of 46 potential jurors to select the
jury for petitioner’s trial.117 over counsel’s
objection, 118 the District Attorney used four of his
peremptory challenges to exclude all four blacks that had
been preliminarily seated for the jury.119 The District
Attorney offered no reason for challenging these
individuals. As a result of the District Attorney’s
action, the jury empaneled to hear the petitioner’s case
was all-white. 120
6. The prosecutor’s ex parte communications
with the judge’s chambers during Peti-
tioner’s trial.
The prosecutor’s control of the proceedings did
not cease with the selection of the judge and an all-white
jury. The prosecutor apparently proceeded to engage in ex
parte communications with the judge’s chambers regarding
legal issues central to Petitioner’s case.121
Te Counsel’s failure to prepare for
and deficient performance at the
quilt-innocence phase of the trial.
Immediately after his initial interview of
Prejean -- without interviewing a single witness or
conducting any investigation -- Guilbeau decided that
117. Tr. 55-464.
118. Tr. 468-71.
119. Tr. 235, 315, 364, 391, 410, 460, 469.
120. Tr. 469; 474-77.
121. This allegation is based on memoranda produced from
District Attorney Stansbury’s files. See Affidavit
of Carmen Rodriguez ("Rodriguez Aff.") (filed herewith
as Appendix 39) 44 1-2; Affidavit of Bernard Duhon
("Duhon Aff.") (filed herewith as Appendix 40) 4q 3-5.
see discussion infra regarding Claim V.
raising any defense in the guilt-innocence phase of the
trial would be unproductive and futile.122 Indeed, just
two days after his formal appointment as defense counsel,
Guilbeau informed the prosecutor of this decision and told
him that his presentation at trial would consist only of a
presentation of mitigating factors at the sentencing
phase. 123
Guilbeau had ten months -- ample time -- to
prepare his case.124 He could have used that time to
develop defenses that would reduce Dalton’s first-degree
murder charge to a lesser offense, or at least educate the
jury about mitigating factors, but he did not. Guilbeau
knew that his client had very limited capacities; he knew
that Dalton was drunk on the night of the shooting; 12° and
he also knew that Dalton had been provoked to violence by
the trooper’s abusive treatment of Joseph, to whom Dalton
was deeply attached.126 Nevertheless, on the basis of his
first short meeting with his client, counsel failed to
consider, let alone investigate, these viable defenses.
Counsel had resigned himself to a verdict of guilt. At
the guilt-innocence phase of the trial, therefore,
Guilbeau introduced no evidence, called no witnesses and
presented no defense to the charge of first-degree murder.
Finally, counsel unpardonably sealed Dalton’s fate by
conceding his guilt to the jury.127
122. Guilbeau Aff. 4 7.
lgd« 2G. 9 Ad«
124. The trial was set to commence on May 1, 1978. Id.
q 18.
125. iG. 4 5.
126. Id. ¢ 1l.
hefs 22s Fli-s2e
As a result of counsel’s squandered
opportunities, when the jurors retired to deliberate, they
did not know that Dalton idolized Joseph and had shot the
trooper because of the trooper’s aggressive treatment of
his brother.128 The jury was also unaware that in the
sixteen hours before the shooting, Dalton had consumed a
fifth of port wine, several shots of gin, many quarts of
beer, marijuana and other drugs.129 The jury quickly
returned a verdict of guilty of first-degree murder.139
8. Counsel’s failure to prepare for and
deficient performance at sentencing.
Given his conclusion that he could raise no
viable defense against the first-degree murder charge,
counsel presumably was intent on channelling his efforts
into the sentencing phase of Petitioner’s trial.
Counsel’s fatalistic attitude toward the case, however,
prevented him from interviewing witnesses and pursuing
evidence that could have corroborated important mitigating
factors.
Due to counsel’s failure in these respects, the
jury was prevented from learning critical information
about the shooting that would have compelled a
recommendation of life imprisonment. The jury was not
told that Dalton was deeply attached to Joseph and had
shot the trooper in response to a perceived threat to his
brother’s safety. The jury was not informed that Dalton
had brain-damage that made it difficult for him to control
violent impulses. The jury was not told that Dalton
128. Bear Aff. 44 15-20; Morris Aff. 44 20-22; Joseph
Prejean Aff. 44 10-13, 27; Rose Prejean Aff. ¢ 11;
Anna Thibodeaux Aff. | 4; Sentence Report 3.
129. Tr. 649-51, 667-70, 694, 697, 704, 707, 765, 819-21;
_ Joseph Prejean Aff. 4¢ 14, 16, 20-21; Donna Prejean
Aff. FF 10-11; Sam Aff. 4q¢ 4-5.
130. Minutes, La. Sup. Ct. Record 33.
suffered repeated abuse as a child.1}31 fhe jury did not
hear how Dalton could be controlled and rendered
productive in a structured environment with the assistance
of medication.132 Nor did the jury learn that Trooper
Cleveland would never have been shot if Dalton had not
been released from LTI without the recommended
supervision. Finally, the many people who cared greatly
for Dalton never had the opportunity to explain the forces
beyond his control that could drive him to violence. 133
Counsel further prejudiced Dalton by presenting
three mitigating factors in such a substandard manner that
they were robbed of their potency. Dalton was seventeen
at the time of the shooting, but counsel never submitted
any evidence of that fact to the jury. Moreover, counsel
could have called several witnesses to establish Dalton’s
drinking and intoxicated condition on the night of the
shooting.134 Instead, the one witness whom counsel called
to testify on intoxication could say nothing to establish
Dalton’s condition at the time of the shooting.13°
Finally, the sole expert witness counsel presented on the
issue of Dalton’s mental deficiencies13® had been given
only sketchy information about the crime and had been
asked only to test Dalton’s intelligence. 137 Thus, the
131. Morris Aff. 4¢ 9-17.
132. Bear Aff. FF 22-23; Kuehn Aff. f 8.
133. Bryant Aff. 4 14; Stewart Aff. 4 8; Powers Aff. ¢ 11;
Deliphose Aff. 4 12; Morris Aff. 4 25; Guilbeau Aff.
qq 36-38; Anna Thibodeaux Aff. ¢ 6; Savoy Aff. | 7.
As discussed infra, available character witnesses
included Dalton’s childhood friends, minister, and
neighbors.
134. Tr. 649-51, 664, 667-70, 676, 678, 694, 697, 704,
707, 708-09, 765, 819-22; Joseph Prejean Aff. 4| 14-
21; Donna Prejean Aff. 44 10-12; Sam Aff. FF 4-6;
Savoy Aff. q 6.
£356 TEs 62122.
L363 IE. 824-35.
137. Tr. 832; Guilbeau Aff. 4 31; Hawkins Aff. | 4-6.
a
jury never learned that Dalton had suffered severe brain
damage that impeded his ability to control violent
urges. 138
After this inadequate presentation of
mitigating factors, the jury predictably sentenced Dalton
to death.139
o. Appellate Review Of Petitioner’s Death Sentence.
After Dalton had been sentenced and an appeal
had been taken, the trial judge submitted to the Louisiana
Supreme Court two sentencing reports: the Uniform Capital
Sentence Report (the "Capital Report"), which answered
questions about the trial, and the Sentence Investigation
Report (the "Sentence Report") prepared by the Louisiana
Department of Corrections (the "Department") consisting
largely of the impressions of a ee parole agent
concerning Dalton’s family life and social environment. 14°
The Sentence Report was integral to the
Louisiana Supreme Court’s decision to affirm Dalton’s
death sentence. 141 However, because Guilbeau was unaware
of the Louisiana neactica regarding the compilation of the
Sentencing Report, he did not prepare Dalton or his family
members for the Department interviews that were the
138. Bear Aff. FF 11-13.
139. Tr. 863-64; Minutes, La. Sup. Ct. Record 34. That
counsel’s presentation at sentencing was ineffectual
is confirmed by the fact that the entire sentencing
phase of Dalton’s trial lasted only 1 hour and 50
minutes. Id. 33-34.
140. The relevant rule provides that the Sentence Report
"shall inquire into the defendant’s prior delinquent
and criminal activity, family situation and
background, education, economic and employment
status, and any other relevant matters concerning the
defendant." See La. Code Crim. Proc. Ann. rule
905.9.1, section 3(b) (West 1984).
141. Prejean v. Blackburn, 743 F.2d at 1105-06 (Johnson,
J., dissenting).
foundation of the Report. 142 Nor did counsel direct the
stand numerous inaccuracies. +44 In addition, while he
could have objected in writing to the Sentence Report and
demanded an evidentiary hearing, Guilbeau failed to
exercise these rights.14°
Counsel’s failures to monitor, verify, and
challenge the data in the Sentence Report had severe
consequences. When the Louisiana Supreme Court affirmed
Dalton’s conviction, the Court was not aware, among other
things, that: (1) Dalton was routinely abused as 4 child
and had an otherwise exceptionally troubled family
life;14® (2) Dalton is prain-damaged; 147 (3) Dalton acted
out of provocation in shooting the trooper; 148 (4) Dalton
was sleep-deprived (as well as intoxicated) at the time of
OO
142. Guilbeau Aff. 4 39. The Sentence Report was sealed
but available for review by Dalton’s attorney. The
Capital Report was also sealed. La. Code Crim. Proc.
Ann. rule 905.9.1 (Louisiana Supreme Court Rule 28)
(West 1984). |
143. Guilbeau Aff. q 40.
144. The report misleadingly describes, for example, the
Aubrey was an alcoholic who severely abused Dalton.
Joseph Prejean Aff. ¢ 5-6; Donna prejean Aff. 14 6;
Rose Prejean Aff. qq 3, 6; Morris Aff. 41 9-19; Bear
Aff. 4 14.
145. Prejean Vv. Blackburn, 743 F.2d at 1097. Counsel
objected only to the Capital Report. Id. at 1096.
146. Bear Aff. q¢ 14; Morris Aff. 44 97-19: Rose Prejean
Aff. 44 3, 6-7-
147. Bear Aff. 41 11-13, 24.
148. Id. 44 17-20; Joseph Prejean Aff. ¢ 27.
a2
the shooting; 149 and (5) Dalton’s behavior could be
productively channelled and controlled by medication in a
structured environment,+59 put the State released him
from LTI without supervision, follow-up, or restrictions.
149. Bear Aff. ¢ 21.
150. Id. | 22; Kuehn Aff. q 7.
CLAIM I
PETITIONER WAS DENIED HIS SIXTH AND FOURTEENTH
AMENDMENT RIGHTS TO THE EFFECTIVE ASSISTANCE OF
OUNSEL IN THE GUILT-INNOCENCE PHASE OF HIS TRIAL.
COUNSEL IN THE GUILT-iINNOCEk—e EEE E—E—Eroavrr
The firmly established constitutional right to
effective assistance of counsel, see Strickland v- Wash-
ington, 466 U.S. 668, 687-88 (1984); Gideon v. Wainwright,
372 U.S. 335, 342-45 (1963), can have no greater sig-
nificance than in a capital case, where a defendant comes
face to face with the ultimate and irreversible penalty of
death.1°1 As the highest court of this State has
recognized, the "necessary reliability {of death
sentences] is undermined unless it appears that the
defendant received the competent assistance of an attorney
acting as a diligent, conscientious advocate for his
life." State v. Myles, 389 So. 2d 12, 30 (La. 1980) (on
rehearing).
To demonstrate ineffective assistance of coun-
sel, the petitioner must show that: (1) his attorney’s
performance fell below an objective standard of “reason-
ably effective assistance"; and (2) "there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different."
Strickland, 466 U.S. at 687, 694.152 Here, the
a
151. Petitioner’s constitutional right to effective
assistance of counsel is grounded in the sixth and
fourteenth amendments of the United States
Constitution and Article I, Section 13 of the
Louisiana Constitution of 1974. Furthermore, Article
511 of the Louisiana Code of Criminal Procedure
provides that a defendant has the right to defend
himself with the assistance of counsel.
152. The existence of strategic choices may be relevant to
the determination of whether counsel’s behavior fell
relevant to plausible options are virtually unchal-
lengeable; and 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.
Petitioner’s right to effective assistance was repeatedly
violated, and with devastating consequences.
Guilbeau agreed to represent the Petitioner
although he had never tried a capital case. Counsel then
decided after his first meeting with Prejean -- without
any investigation of the prosecution’s case -- "that any
defense in the guilt-innocence phase of trial would be
futile." Guilbeau Aff. ¢ 7. This uninformed decision
fostered a fatalistic approach that early on was reflected
in counsel’s failure to investigate or effectively present
pivotal issues, counsel’s perfunctory and uninformed
cross-examination of key witnesses, and his concession of
the Petitioner’s guilt in closing argument. Tr. 771-72.
One result was the Petitioner’s first degree murder
conviction; another was a sentence of death that was
rendered inevitable even before the penalty phase began.
As such, counsel breached his duty to advocate the
Petitioner’s cause and thereby denied his client his
constitutional right to reasonably effective assistance of
counsel. See Strickland, 466 U.S. at 687.199
A. Counsel’s Representation At The
Guilt-Innocence Phase Fell Below An
Objective Standard Of Reasonably
Effective Assistance.
hu Counsel failed to investigate
adequately the circumstances of
the crime and to uncover viable
defenses to first-degree murder.
a. Counsel failed to investigate
adequately the circumstances
of the crime.
The Petitioner’s counsel breached his "duty to
make reasonable investigations or to make a reasonable
153. Petitioner’s claim that counsel was ineffective is
being raised for the first time because Petitioner
was represented at trial, on appeal, and in his prior
application for state post-conviction relief by the
same attorney whose performance is being challenged
here.
decision that [made] particular investigations
unnecessary." Strickland, 466 U.S. at 691; see Davis Vv.
Alabama, 596 F.2d 1214, 1217 (5th Cir. 1979) ("a defense
attorney must be prepared to investigate and develop
evidence on behalf of his client").154 It is the expert
opinion of Gerald J. Block that "(t]Jo prepare for the
trial of a capital case, effective counsel must conduct a
thorough investigation of the crime and the defendant.
Investigation of the crime must include examination of the
principal witnesses, and attempts to interview the
investigating and assisting officers."155
In the present case, Guilbeau concedes:
I did not contact or interview any of the
State’s witnesses, other than Michael George and
Michael Broussard;
Except for Joseph Prejean, and State
witnesses, Michael George and Michael Broussard,
I did not contact anyone to discuss Dalton’s
drinking at the Harlem or at Roger’s Bar the
night of the crime;
I did not interview or contact Wilbur
Willis, the State’s eye-witness to the
shooting;
I did not interview or contact Cornelius
Huey or Dorsey Sam to inquire what they observed
when Dalton went to their homes after the
shooting.
My lack of contact or interviews with
[these] people .. . was not the result of a
strategic or tactical decision.
154.
155.
See also Caraway v. Beto, 421 F.2d 636, 637-38 (5th
Cir. 1970)(a defense that “serves the ends of jus-
tice . . . requires investigation and preparation") ;
Rogers v. Israel, 746 F.2d 1288, 1294 (7th Cir.
1984) ("it is undisputed that a defense counsel
should make reasonable inquiry into all defenses
. . ."); Crisp v. Duckworth, 743 F.2d 580, 583 n.2
(7th Cir. 1984), cert. denied, 469 U.S. 1226 (1985)
("to be adequately prepared, an attorney must conduct
his own investigation").
Affidavit of Gerald J. Block ("Block Aff.") (filed
herewith as Appendix 41) 44 12-13, 17. Mr. Block has
extensive experience defending criminal cases. His
experience includes the representation of ten capital
defendants, none of whom were sentenced to death.
Mr. Block’s experience and background are discussed
in full in his affidavit at paragraphs 2-7.
Guilbeau Aff. 44 14-15. By failing to contact these key
witnesses and by questioning those he contacted
inadequately, counsel failed to uncover evidence
supporting two viable defenses to first-degree murder.
Thus, counsel breached his constitutional duty to
Petitioner. 1>® See, e.g., Kemp v. Leggett, 635 F.2d 453,
454 (5th Cir. 1981 Unit B) (writ granted for failure to
investigate defenses or “sources of evidence which may be
helpful to the defense") ; Gaines v. Hopper, 430 F. Supp.
1173, 1179 (M.D. Ga. 1977), aff’d, 575 F.2d 1147 (5th Cir.
1978) (defendant was deprived of effective assistance of
counsel where counsel failed to investigate and discover
facts that might well have supported a conviction of
manslaughter, rather than murder) .197
First, counsel should have investigated a
provocation defense in the hope of obtaining a voluntary
manslaughter verdict or at least educating the jury at the
Ee
156. There is no dispute here as to whether Prejean shot
the trooper. The question is whether there is a
reasonable probability that, absent the errors of
counsel, the jury would have entertained a reasonable
doubt as to his guilt of first-degree murder and
instead returned a conviction for manslaughter. See
Strickland, 466 U.S. at 695-96. See also State v.
Burkhalter, 428 So. 2d 449 (La. 1983).
157. See also Davis v. Alabama, 596 F.2d 1214, 1219 (5th
Cir. 1979) (writ granted where defense counsel
considered insanity defense but failed to have client
examined by psychiatrist or psychologist in spite of
history of mental problems) ; Mauldin v. Wainwright,
723 F.2d 799, 800 (llth Cir. 1984) (petitioner
deprived of effective assistance of counsel due to
attorney’s failure to investigate and present
evidence of insanity due to chronic alcoholism) ;
United States v. Decoster, 624 F.2d 196, 209 (D.C.
Cir. 1976) ("A conscientious defense attorney will
naturally investigate possible defenses."); Walker v.
Mitchell, 587 F. Supp. 1432, 1440-45 (E.D. Va. 1984)
(petitioner denied effective assistance of counsel
due to counsel’s failure to investigate adequately
insanity defense); 1 American Bar Association
("ABA"), Standards for Criminal Justice § 4-4.1 (2d
ed. 1980) (counsel has a duty "to conduct a prompt
investigation of the circumstances of the case and to
explore all avenues leading to facts relevant to the
merits of the case... .").
guilt-innocence phase about an obvious mitigating
factor.1°8 counsel’s theory would have been that the
Petitioner shot the trooper in the heat of passion caused
by a perceived threat to his brother’s safety.159 counsel
should have known from the State’s Notice of Inculpatory
Statements and other sources that the shooting was
sparked by the Petitioner’s passionate reaction to the
trooper’s belligerence and threatening behavior towards
Joseph. According to the Notice, the Petitioner cried:
158. At the time Dalton was tried, Louisiana defined
manslaughter as:
(1) A homicide which would be murder under
either Article 30 (first degree murder) or
Article 30.1 (second degree murder), but
the offense is committed in sudden passion
or heat of blood immediately caused by
provocation sufficient to deprive an
average person of his self control and cool
reflection... .
(2) A homicide committed, without any intent to
cause death or great bodily harn.
(a) When the offender is engaged in the
perpetration or attempted perpetration
of any felony not enumerated in
Articles 30 or 30.1, or any inten-
tional misdemeanor directly affecting
the person; or
(b) When the offender is resisting lawful
arrest by means, or in a manner, not
inherently dangerous, and the cir-
cumstances are such that the killing
would not be murder under Article 30
or 30.1.
La. Rev. Stat. Ann. § 14:31 (West 1974). See
State v. Turner, 246 Mo. 598, 152 S.W. 313, 316-17
(1912) (defense of brother). If the issue of man-
slaughter had been properly raised, the State would
have been required to prove the absence of sudden
passion or heat of blood beyond a reasonable doubt.
See Mullaney v. Wilbur, 421 U.S. 684 (1975).
159. The types of provocation that can reduce an offense
to manslaughter include mistreatment of close
relatives, see State v. Morris, 404 So. 2d 1186, 1190
(La. 1981) (son); State v. Turner, 246 Mo. 598, 152
S.W. 313, 316-17 (1912) (brother); W. LaFave & A.
Scott, Handbook on Criminal Law at 577 & nn. 42-44
(1972), and the gratuitous use of force by policemen,
see State v. Bryan, 398 So. 2d 1019, 1021 n.2 (La.
1980) (on rehearing).
"IT can’t stand it he’s pushing ny brother." Notice of
Inculpatory Statements, La. Sup. Ct. Record 106. Michael
Broussard and Michael George told counsel that Dalton was
"extremely attached" to Joseph, and counsel knew that
Dalton shot the trooper after the trooper "pnushed Joseph
around." Guilbeau Aff. q¢ 11. Had counsel asked
appropriate questions, his interviews with Joseph Prejean,
Rosemary Prejean, Mary Aubrey, and Donna Thibodeaux would
have pointed to the same conclusion. 1+®9
Pursuit of these leads would have enabled
defense counsel to establish that the trooper provoked
the Petitioner by throwing Joseph against the patrol car
and searching Joseph while his gun was unclipped. Joseph
Prejean Aff. 4¢ 24, 26. Counsel, who "did not obtain any
of Cleveland’s disciplinary records or otherwise
investigate his background," also would have learned that
the trooper was known as a "tough guy" who "batted people
around." Guilbeau Aff. 4 17. These facts, coupled with
testimony that Petitioner was deeply attached to Joseph
and became extremely agitated when he saw the trooper
throw him against the police car, could have
substantiated the Petitioner’s heat of passion and
provocation. Instead, counsel failed even to consider a
provocation defense. Id. 4 16.
The second defense that counsel should have
investigated was whether the Petitioner was so intoxicated
at the time of the shooting that he lacked the intent re-
quired for a first-degree murder conviction.1®1! Had
ae
160. Joseph Prejean Aff. q¢ 11-13; Rose Prejean Aff. q 11;
Donna Prejean Aff. | 4; Sentence Report 6. See
discussion in Section A(1) (a) of Claim II.
161. Intoxication can negate specific intent under
Louisiana law. La. Rev. Stat. Ann. § 14:15(2) (West
1974) (intoxication is a defense where the circum-
stances indicate intoxication precluded presence of
(continued...)
46
nn ul Sunn
counsel investigated this defense, he would have learned
that on the evening of the shooting, the Petitioner was
mixing port wine, gin, Thunderbird, beer, marijuana and
other drugs. 162 Counsel did not even consider, however,
whether to argue intoxication as a basis for reducing a
possible first-degree murder conviction to manslaughter,
even though testimony on intoxication at the guilt-
innocence stage would have set the stage for introducing
similar evidence as a mitigating factor at sentencing.
Guilbeau Aff. 4 16. After all, counsel had no knowledge
of, and thus no way of substantiating, the Petitioner’s
level of intoxication because he did not attempt to
contact patrons of The Harlem or Roger’s who might have
seen Dalton drinking. Guilbeau Aff. 4¢ 14(b), 20.
These omissions -- which were not the product of any
tactical decision, id. 4 15 -- fell below professional
standards, given counsel’s admission that "Dalton told me
he was drunk when the shooting occurred." Id. q¢ 5.
Counsel also failed to consult with any psychi-
atrist or expert about the effects of alcohol on the
161.(...continued)
specific criminal intent to the crime); see also
State v. Felde, 422 So. 2d 370, 393 (La. 1982), cert.
denied, 461 U.S. 918 (1983) (defendant found to have
specific intent because intoxication was not
"total"); State v. Mart, 352 So. 2d 678 (La. 1977)
(failure to instruct that intoxication could negate
specific intent was reversible error); State v.
Youngblood, 235 La. 1087, 106 So. 2d 689 (1958)
(same). Petitioner’s intoxication also would have
been relevant to the provocation defense on the
question of whether Petitioner was actually provoked
or had already cooled off by the time of the
shooting. See State v. Hogan, 117 La. 863, 872-73,
42 So. 352, 354-56 (1906) (drunkenness may be taken
into consideration to show that accused acted from
heat of blood rather than from malice); but cf.
State v. Parker, 416 So. 2d 545, 550 (La.
1982) (affirming trial judge’s refusal to charge jury
that defendant’s intoxication could be considered in
determining whether defendant’s blood had cooled).
162. Tr. 649-51, 667-70, 694, 697, 704, 707, 765, 819-21;
Joseph Prejean Aff. 44 14, 16, 20-21; Donna Prejean
Aff. 4¢F 10-11; Sam Aff. 4¢ 4-5.
PG
Petitioner’s ability to form specific intent.1°3 Instead,
he retained Dr. William Hawkins, a clinical psychologist,
to examine the Petitioner, and did not inform Hawkins that
the Petitioner was intoxicated at the time of the crime.
Id. §¢ 31. This was a critical omission because Dr.
Hawkins was knowledgeable about alcoholism, Hawkins Aff. 4
2, and could have informed counsel that alcohol can
deprive an individual -- particularly a brain-damaged,
borderline retarded, and sleep-deprived individual who is
also using drugs -- of his ability to control aggressive
impulses. Tr. 826; Bear Aff. ¢ 21.164 counsel thus made
no effort to establish the level of intoxication necessary
for the Petitioner to not "know what he was about." State
v. Lentz, 306 So. 2d 683, 684 (La. 1975). See State v.
Hill, 46 La. Ann. 27, 14 So. 294 (1894). These omissions
reflected no particular strategy -- counsel was without
the information needed to make tactical choices.1®5
Thus, counsel’s snap judgment that he could
present no defense in the guilt phase and his resulting
163. Guilbeau Aff. 4¢ 31, 35, 41.
164. See State v. Williams, 375 So. 2d 1379, 1384 n.5 (La.
1979) (discussing expert psychiatric testimony that
defendant’s brain damage might have rendered him more
susceptible to the effects of alcohol and marijuana) ;
Kane v. United States, 399 F.2d 730, 735 (9th Cir.
1968), cert. denied, 393 U.S. 1057 (1969) (noting
expert testimony that brain damage "lowers the
tolerance level to alcohol so that not only does
intoxication occur more readily but the results of
intoxication are far more drastic than would normally
be the case."); In re Powell, 45 Cal. 3d 894, 900
n.8, 755 P. 2d 881, 884 n.8, 248 Cal. Rptr. 431, 434
n.8 (1988) (noting expert testimony that "brain
damage, particularly when coupled with intoxication,
tends to lower one’s inhibitions to impulsive
behavior; in a person with an antisccial character
disorder, this can lead to violent outbursts") ;
People v. Coyne, 263 Cal. App. 2d 445, 449, 69 Cal.
Rptr. 736, 738 (Cal. Ct. App. 1968) (acknowledging
psychiatric testimony that defendant "had something
wrong with his brain, and alcohol will make him
berserk").
165. Guilbeau Aff. ¢q¢ 31, 35.
failure to investigate viable defenses was
constitutionally deficient under Strickland. 1°®
Zs Counsel failed at the guilt-innocence
phase of the trial to deal effectively
with the issues of intoxication and
provocation.
Counsel’s performance at trial was inevitably
affected by his uninformed opinion that nothing, including
any investigation, could assist his client. See 1 ABA,
Standards for Criminal Justice, § 4-4.1 at 4-55 (commen-
tary) (2d ed. 1980) ("Effective investigation by the lawyer
has an important bearing on competent representation at
trial, for without adequate investigation the lawyer is
not in a position to make the best use of such mechanisms
as cross examination or impeachment of adverse witnesses
at trial... my 167 Counsel prepared no defense,
presented no defense, offered no witnesses, and pursued
only a cursory cross-examination of a few of the State’s
witnesses.
Specifically, counsel failed to present any
evidence of provocation, although two of the State’s
witnesses gave testimony that suggested it. Counsel thus
failed to shed light on Michael Broussard’s trial
testimony that:
166. The fact that Prejean confessed or that counsel
thought the case a difficult one should not have
affected counsel’s decision as to whether to pursue
defenses: a lawyer’s duty to investigate "exists
regardless of the accused’s admissions or statements
to the lawyer of facts constituting quilt . «= « «*
1 ABA, Standards for Criminal Justice § 4-4.1 (2d ed.
1980). Furthermore, an admission of guilt should not
discourage investigation in cases like this where
defendant’s intent is an issue because "(t]he
accused’s belief that he or she is guilty in fact may
often not coincide with the elements that must be
proved in order to establish guilt in law." Id. § 4-
4.1 at 4-54 (commentary).
167. The Standards for Criminal Justice are guides to
determining what is reasonable assistance of
counsel. Strickland, 466 U.S. at 688.
49
Well, the trooper was saying, ‘Get against the
car.’ And, Joseph said, ‘Man, don’t be putting
your hand on me like that.’ And the trooper
say, ‘What? You trying to get smart or some-
thing?’ Kept pushing on him. That’s when
Dalton -- Dalton was saying, ‘I don’t like the
way he’s doing my brother.’
Tr. 699-700. 168
Due to counsel’s omissions, the jury did not
appreciate that the Petitioner acted out of fear for a
brother whom he idolized and felt compelled to protect.
Instead, the jury was left with the grossly mistaken
impression that the Petitioner shot the trooper in order
to avoid a traffic ticket. In closing argument, the
State took advantage of this:
For nothing of any consequence, these other
witnesses thought that the most that was going
to happen to this was that there was going to be
a traffic ticket. But, Dalton Prejean chose to
take a life over such an issue.
Tr. 768. Counsel made no effort to counter this argument.
Tr. 771-72. The Petitioner therefore appeared to the jury
to be a callous, cold-blooded murderer, rather than a
brain-damaged and retarded youth who shot an angry, armed
police officer in a sadly misguided attempt to protect his
brother.
Counsel also failed to present any evidence of
intoxication in the guilt-innocence phase of the trial,
despite suggesting in his opening statement that he would
do so.169 Instead, counsel tried to elicit testimony on
the Petitioner’s inebriated condition through a botched
cross-examination of two hostile state witnesses, Michael
Broussard and Michael George, that prejudiced Petitioner
168. See also Tr. 681 (testimony of Michael George that
the police officer was pushing and shoving Joseph up
against the car).
169. Counsel told the jury, "I wish for you to look for
intoxication." Tr. 538.
and failed to establish how much he drank before the
shooting. For example, counsel asked Michael George:
"QO; You really don’t know exactly how much
Dalton Prejean drank at Roger’s Night Club,
do you?
A: No."
Tr. 670. Counsel’s examination of Michael Broussard was
equally ineffective:
“Os It’s a fact . . . that Dalton Prejean was
intoxicated when you were all at Roger’s?
A: To tell you the truth, I don’t know when
Dalton is high or sober."
Tr. 713; see also Tr. 762 ("He [Dalton] could have been
high. I couldn’t tell because I was high myself.").
Counsel further undercut an intoxication defense by
reading into the record a prior statement by Broussard
that Prejean was drinking white port and beer on the night
of the shooting, but "({i]f he was high he wasn’t showing."
And, "he ain’t looked drunk." Tr. 754.
Due to counsel’s deficient performance, evidence
about the Petitioner’s drinking on the evening of the
shooting -- some of it harmful -- haphazardly trickled out
during the prosecutor’s case in chief.179 Had the
Petitioner’s attorney been acting as a "diligent,
conscientious advocate" as the Constitution requires, see
State v. Myles, 389 So. 2d at 30, he would have
substantiated the Petitioner’s state of intoxication
shortly before the shooting by seeking out and
introducing the testimony of patrons of the bars where
Petitioner had been drinking. ee Sam Aff. 4 6; Savoy
170. On direct examination of Michael George, the prose-
cutor established that the foursome split a fifth of
white port over five hours before the shooting, Tr.
649, and that Petitioner was merely "sipping" beer at
Roger’s. Tr. 651. The officer who arrested
Petitioner on the morning of the shooting testified
on direct examination that he did not appear to be
intoxicated. Tr. 625.
Aff. ¢ 6. Equally damaging was the absence of testimony
from Joseph, who could have confirmed that Petitioner had
been consuming alcohol steadily.171 The prosecutor made
the most of counsel’s inadequate performance in this
respect, noting that the amount the Petitioner drank had
not been established "to any degree of certainty."
Tr. 768.
cm Counsel inexcusably conceded
his client’s quilt.
"Having rested his client’s case without
evidence, ... it [was] even more imperative that defense
counsel advocate his client’s cause in closing argument."
State v. Myles, 389 So. 2d at 31. Nevertheless, counsel
violated these principles during the guilt-innocence phase
by lamenting the "tragedy" of the trooper’s killing, une-
quivocally conceding the Petitioner’s guilt:
There’s no contradiction in the evidence as to
what happened when the police stopped the car
for a tail light missing. A tragedy occurred
because a tail light was out. And someone under
the influence of alcohol, by the name of Dalton
Prejean, killed officer Cleveland. I can’t
contradict that. It is a tragedy, and I feel
deeply. I think that I know in your heart what
the verdict’s going to be in this case. And, if
you do come in with a first-degree murder
charge, there will be a second portion to this
trial.
. Tr. 771-72. This concession of guilt breached Petition-
er’s right to effective assistance of counsel. There is
no justifiable strategic reason for conceding a verdict of
first-degree murder and thereby exposing a client to a
sentence of death.
A similar concession by defense counsel led to
the vacating of defendant’s conviction in Francis v.
Spraggins, 720 F.2d 1190 (11th Cir. 1983), cert. denied,
470 U.S. 1059 (1985). There, counsel had stated tc the
eee
171. See generally discussion in Section A(2) (a) of Claim II.
52
jury, "I think [the defendant] went in the house and I
think he committed the crime of murder... ." Id. at
1194. The Eleventh Circuit, reviewing counsel’s remarks,
concluded that "counsel not only failed to provide mean-
ingful advocacy on the issye of guilt, but actually urged
the jury to return a verdict of guilty." Id. The court
concluded:
Where a capital defendant .. . seeks a verdict
of not guilty, counsel, though faced with strong
evidence against his client, may not concede the
issue of guilt merely to avoid a somewhat
hypocritical presentation during the sentencing
phase and thereby maintain his credibility
before the jury. Even though an adverse verdict
would have the effect of precluding further
argument on the issue of guilt, counsel does not
have license to anticipate that effect and to
concede the issue during the guilt/innocence
phase simply because an adverse verdict appears
likely. As the Sixth Circuit reasoned in a
Similar case, counsel’s complete concession of
the defendant’s guilt nullifies his right to
have the issue of his guilt or innocence pre-
sented to the jury as an adversarial issue and
therefore constitutes ineffective assistance.
See Wiley v. Sowders, 647 F.2d 642, 650 (6th
Cir.), cert. denied, 454 U.S. 1091 (1981).
As in Francis, Guilbeau not only conceded that
Prejean had shot — Cleveland, but essentially
invited the jury to convict Prejean of first-degree
murder. Counsel’s concession to the jury here was even
more egregious because Louisiana law Forged the
Petitioner to plead not guilty and stand trial. See La.
Code Crim. Proc. Ann. art. 557, discussed in Claim XxI
infra. The Constitution surely cannot countenance a
system forces a capital defendant to stand trial on first-
degree murder in order to prevent him from committing
"Judicial suicide," see State v. Jett, 419 So. 2d 844, 851
(La. 1982), and then permits his attorney to do it for
him.
In sum, counsel was supine. By his own
admission, he "did not traverse the State’s witnesses at
any length," and then he conceded his client’s guilt to
first-degree murder. As counsel noted in his closing:
Ladies and gentlemen, my remarks to you will be
brief. We have not tried to give you any false
smoke screens in this case. This has been the
most honest defense that we could possibly give,
I think. The most impartial.
Tr. 772 (emphasis added). Yet counsel, by being "[t]he
most impartial" that he could be in defending the
Petitioner, failed to act as an advocate and to put the
prosecutor’s case to any meaningful test, as required by
the Constitution:
(W]hen counsel’s acts and omissions reduce his
role to one approaching that of a neutral
observer, a defendant is denied the effective
assistance of counsel.
See State v. Myles, 389 So. 2d at 31. The Petitioner’s
constitutional guarantee of effective assistance of
counsel was thus violated because the trial was not a
confrontation between adversaries. See United States v.
Cronic, 466 U.S. 648, 656-57 (1984).172
172. In United States v. Cronic, the Court said:
The adversarial process protected by the Sixth
Amendment requires that the accused have "coun-
sel acting in the role of an advocate," Anders
v. California, 386 U.S. 738, 743, 87 S. Ct.
1396, 1399, 18 L. Ed. 2d 493 (1967). The right
to the effective assistance of counsel is thus
the right of the accused to require the prosecu-
tion’s case to survive the crucible of meaning-
ful adversarial testing. When a true adver-
Sarial criminal trial has been conducted
-- even if defense counsel may have made demon-
strable errors -- the kind of testing envisioned
by the Sixth Amendment has occurred. But if the
process loses its character as a confrontation
between adversaries, the constitutional guaran-
tee is violated. As Judge Wyzanski has written:
"While a criminal trial is not a game in which
the participants are expected to enter the ring
with a near match in skills, neither is it a
sacrifice of unarmed prisoners to gladiators."
United States ex rel. Williams v. Twomey, 510
F.2d 634, 640 (CA7), cert. denied sub non.
Sielaff v. Williams, 423 U.S. 876, 96 S. Ct.
(continued...)
54
B. But For Counsel’s Failure To Provide
Effective Assistance At The Guilt-
Innocence Phase, There Is A Reasonable
Probability That The Jury Would Have
Reached A Different Verdict.
The test for prejudice is whether there is a
reasonable probability that, but for counsel’s unprofes-
sional errors, the fact finder would have had a reasonable
doubt respecting guilt. Strickland, 466 U.S. at 695. "A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. at 694. Thus,
if the ineffective assistance raised a significant doubt
about the outcome, Petitioner’s application must be
granted.
A defendant is prejudiced where, as here, a
viable defense is not pursued because of his counsel’s
failure to investigate. Goodwin v. Balkcom, 684 F.2d 794,
818-20 (llth Cir. 1982), cert. denied, 460 U.S. 1098
(1983) .173 Counsel’s unthinking (and erroneous) decision
not to investigate or raise defenses on the Petitioner’s
behalf so clearly undermined the proper functioning of the
adversarial process that the trial cannot be relied upon
to have produced a just result. See Strickland, 466 U.S.
at 687.
Counsel’s failure to investigate and raise the
provocation defense severely prejudiced the Petitioner in
172.(...continued)
148, 46 L. Ed. 2d 109 (1975).
466 U.S. at 656-57 (footnotes omitted).
173. See also Gaines v. Hopper, 430 F. Supp. 1173, 1177-79
(M.D. Ga. 1977), aff'd, 575 F.2d 1147 (5th cir.
1978) (per curiam) (counsel’s failure to learn facts
of case left petitioner with no defense; trial
without adequate preparation amounts to no trial at
all); Mauldin v. Wainwri , 723 F.2d 799, 801 (11th
Cir. 1984) (petitioner prejudiced by counsel’s
failure to investigate intoxication/insanity
defense); Walker v. Mitchell, 587 F. Supp. 1432, 1445
(E.D. Va. 1984) (writ granted where counsel’s failure
to investigate insanity/intoxication defense preju-
diced petitioner).
a manner similar to the prejudice suffered by the defen-
dant in Gaines, 575 F.2d 1147 (5th Cir. 1978) (per curiam),
aff’q 430 F. Supp. 1173 (M.D. Ga. 1977). Here, as in
Gaines, if counsel had investigated available defenses,
"rather than having the impression of a totally unprovoked
shooting, the jury would have been aware, at the least,
that some reason existed for the incident, and,
accordingly, might have returned a manslaughter rather
than a murder verdict... ." Gaines, 430 F. Supp. at
1177; see also 575 F.2d at 1149. Counsel thus failed
inexcusably to investigate and present a provocation
defense.1/74
Counsel’s failure to investigate and present an
intoxication defense also prejudiced the Petitioner.
Counsel’s ineffectiveness prevented the jury from learning
that the Petitioner consumed massive amounts of alcohol
and drugs in the hours before the crime. Exposure to this
information could have persuaded the jurors that
Petitioner was not guilty of first-degree murder because
he lacked the specific intent required by Louisiana
law.175 Any chance for a favorable verdict was finally
174. The district court in Gaines reasoned in part that
difficult decisions about what defenses to raise
"must be the product of informed professional judg-
ment which can be rendered only after proper in-
vestigation; at a bare minimum, that investigation
must include interviewing known witnesses... ."
Id. at 1178; see also 575 F.2d at 1149. Affirming
the district court, the Court of Appeals for the
Fifth Circuit declared that an "(i]nformed evaluation
of potential defenses to criminal charges and mean-
ingful discussion with one’s client of the realities
of his case are cornerstones of effective assistance
of counsel." Id. at 1149-50.
175. See Brubaker v. Dickson, 310 F.2d 30, 37-38 (9th Cir.
1962), cert. denied, 372 U.S. 978 (1963) (defendant’s
right to representation at trial violated when
counsel failed to discover and present defense that
defendant did not have specific intent required for
first-degree murder due to intoxication/mental
abnormality); but cf. Martin v. Maggio, 711 F.2d
1273, 1280 (5th Cir. 1983), cert. denied, 469 U.S.
(continued...)
destroyed by counsel’s concession in closing argument of
Petitioner’s guilt to first-degree murder.
For these reasons, had the Petitioner’s attorney
presented the provocation and intoxication defenses,
conducted informed cross-examinations, and not conceded
the Petitioner’s guilt to first-degree murder, the jury
would have had a reasonable doubt about the Petitioner’s
guilt to that offense. See Rogers v. Israel, 746 F.2d
1288, 1294 (7th Cir. 1984) (writ granted where counsel’s
failure to present expert testimony created reasonable
doubt respecting guilt on charge of first-degree murder).
Petitioner is therefore entitled to a new trial.
175.(...continued)
1028 (1984). In Martin, defendant claimed that he
received ineffective assistance of counsel when his
attorney did not pursue an intoxication or drug~
related defense, despite a psychiatrist’s recommenda-
tion that such a defense was possible. While strong-
ly suggesting that counsel’s performance was sub-
standard, see id. at 1280, the court did not decide
the issue and instead found no prejudice. The
petitioner there failed to show that such an in-
vestigation would have produced evidence that he
lacked the specific intent to kill. Id. at 1281.
CLAIM Il
PETITIONER WAS DENIED HIS SIXTH AND FOURTEENTH
AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF
COUNS A SENTENCING 0) S TRIA
The test for ineffective assistance of counsel
at the sentencing phase is whether counsel’s performance
fell below an objective standard of reasonably effective
assistance and "whether there is a reasonable probability
that, absent the errors, the sentencer .. . would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death." ickland, 466
U.S. at 668. In evaluating claims of ineffective assis-
tance in the sentencing phase, "counsel’s general duty to
investigate .. . takes on supreme importance to a defen-
dant in the context of developing mitigating evidence to
present to a judge or jury considering the sentence of
death... ." Id. at 706 (Brennan, J., concurring and
dissenting). The Louisiana Supreme Court has recognized,
"while the failure to present mitigating evidence at trial
can be reasonable if shown to be the result of tactical
decision, the failure to investigate the existence of such
evidence is ineffective assistance of counsel." Busby v.
Butler, 538 So. 2d 164, 171 (La. 1988) (emphasis in origi-
nal).
Here, as in Busby, counsel provided ineffective
assistance at sentencing by failing to investigate and
present crucial mitigating evidence, not as a result of
any informed and reasonable tactical decision, but out of
a misguided belief that no significant evidence would have
been uncovered. Counsel also presented three mitigating
factors so ineffectively that the Petitioner was deprived
of the advocate guaranteed by the sixth and fourteenth
amendments and Article I, Section 13 of the Louisiana
Constitution.
58
By virtue of counsel’s errors and omissions, the
jury was presented with a grossly incomplete and inac-
curate picture of the Petitioner. The jury was required
to decide the fate of a man who, from all appearances:
176.
Li? 4
178.
L793
180.
181.
182.
183.
(1)
(2)
(3)
What
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Tr. *54-
without provocation, had shot a state
trooper, in cold blood;
although borderline retarded, was capable
of distinguishing right from wrong and of
carrying out a plan of murder; and
had consumed some alcohol during the
evening but who "ain’t looked drunk."176
the jury did not know was that:
the Petitioner was rejected at birth by his
parents;17/7
the Petitioner was once a sweet, quiet
child who liked to attend church and to
read the Bible;178
the Petitioner had expressed a desire to be
baptized, but _was forbidden by his aunt,
Mary Aubrey ;179
the Petitioner was subjected to repeated
abuse as a childa;18°
the Petitioner was afraid of Mary Aubrey,
the woman who raised him, and would hide
under the bed in an attempt to escape her
drunken assaults;181
the Petitioner was ultimately rejected by
Mary Aubrey, who taunted the Petitioner
with the fact that she was not his real
mother ; 182
these incidents instilled in the Petitioner
a desperate yearning to be loved;183
Rose Prejean Aff. q 3.
Bryant Aff. qq 8-9
11; Deliphose Aff. || 6, 10;
,
Powers Aff. 4¢ 5-8; Stewart Aff. FF 6-7; Sentence
Report 3.
Bryant Aff. ¢ 10.
Rose Prejean Aff. 44 3, 6-7; Morris Aff. F¢ 9-17;
Bear Aff.
q 14.
Morris Aff. 4 11.
id. ¢ 17.
Bear Aff.
q 15.
59
184.
185.
186.
187.
188.
189.
Lo «
191.
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
the Petitioner consequently developed an
inseverable bond with his brother Joseph
whom he worshipped as a father figure; 84
the Petitioner would do anything to protect
his family, and particularly his brother
Joseph, from harm; 185
as a teenager, the Petitioner was diagnosed
as a schizophrenic and was given medication
for that disorder;18®
at least one psychiatrist who treated the
Petitioner recommended long-term hospital-
ization because of his mental disabili-
ties;187
the Petitioner suffered from significant
damage to the frontal and parietal lobes of
his brain, and thus, through no fault of
his own, was unable to control violent
impulses in response to perceived
threats;188
In the 16 hours before the shooting, the
Petitioner consumed a dangerous mixture of
drugs, wine, beer and gin, and his
consumption of alcohol further reduced his
already limited impulse control;
the Petitioner was only 17 years old when
he committed the crime and had the maturity
and cognitive skills of a much younger
child;189
the Petitioner shot the trooper in response
to the trooper’s abusive treatment of his
brother Joseph; 190
the Petitioner could function adequately
with medication in a structured, stable
environment, in stark contrast to the
chaotic, abusive milieu in which he was
raised;+91 and
Id. 44 15-16; Morris Aff. 44 20-22; Joseph Prejean
Aff. 44 10-13; Rose Prejean Aff. | 11; Anna
Thibodeaux Aff. | 4; Sentence Report 6.
Donna Prejean Aff. 4 5; Joseph Prejean Aff. ¢ 13;
Anna Thibodeaux Aff. | 4; Sentence Report 3.
Kuehn Report; Kuehn Aff. Exhibits B and C.
Sentence Report 5 (quoting Dowling Report).
Bear Aff. 44 11-13, 18-19.
Tr. 831; Sentence Report l.
Bear Aff. 44 17-21.
igs 4F 22-23.
60
(17) the Petitioner had friends and family who
understood his limitations, who felt that
his life had value, and who would have
taken the stand to plead for his life had
they been given the chance. 192
The Petitioner was severely prejudiced --
perhaps fatally so -- by these omissions. But for coun-
sel’s failure to uncover and present this readily
available evidence, there is a reasonable probability that
the jury would have voted to spare Dalton Prejean’s life.
Ce Counsel’s Representation At The Sentencing
Hearing Fell Far Below An Objective Stand-
ard Of Reasonably Effective Assistance.
It is the expert opinion of Gerald Block that:
counsel’s performance fell below the
minimum standards for effective assistance of
counsel guaranteed by the Sixth Amendment of the
United States Constitution because:
(a)
(b)
(Cc)
Block Aff. ¢ 9.193
counsel failed to investigate
adequately both the facts surrounding
the homicide and the background of the
Petitioner;
counsel failed to begin the
development of mitigating factors at
the guilt-innocence phase of trial;
and
counsel failed during the sentencing
. phase itself to present available
mitigation evidence.
Mr. Block elaborates as follows:
Absent a complete investigation, counsel
cannot make an informed decision as to what
defenses,
if any, are available to his client
and what mitigating evidence should be
introduced. Even if counsel decides that no
defenses are available, a complete investigation
is necessary to shape appropriate trial strategy
for both the guilt-innocence and penalty phases,
and to permit effective cross-examination of the
State’s witnesses. Finally, effective counsel’s
192. Bryant Aff. 4 14; Deliphose Aff. 4 12; Morris Aff.
q 25; Powers Aff. 4 11; Stewart Aff. | 8; Anna
Thibodeaux Aff. q 6.
193. Block’s conclusions are based, among other things,
upon a review of both the transcript of Petitioner’s
trial and the affidavits submitted as appendices to
this Application. Block Aff. | 4.
61
presentation of mitigating factors must begin
before a verdict is returned. Counsel must
consider how to educate the jury about
mitigating evidence from voir-dire through the
guilt-innocence phase of trial.
In the present case, counsel’s failure to
investigate adequately either the crime or the
defendant resulted in ineffective assistance to
the Petitioner. At the outset, counsel’s
deficient investigation precluded him from
developing an educated, integrated, and
effective trial strategy. After counsel had
made the uninformed decision to forego any
defense to the first degree murder charge in the
guilt-innocence phase and to focus his efforts
on the sentencing phase of the trial, he failed
to follow through on his decision. By not
dealing effectively with the issues of
intoxication and provocation at the guilt-
innocence phase, counsel impaired adequate
consideration of those mitigating factors by the
jury at sentencing. Finally, counsel’s
deficient investigation prevented him from
uncovering certain mitigating factors and from
presenting others effectively at sentencing.
Block Aff. 44 17-18. These conclusions are reaffirmed by
the analysis set forth below.
: Counsel’s representation was constit-
utionally deficient because he failed
to investigate and present crucial
mitigating evidence.
a. Counsel failed to investigate
and present mitigating evidence
of provocation.
Louisiana Code of Criminal Procedure, article
905.5(b) enumerates specific mitigating factors, including
evidence that the defendant acted under "extreme mental or
emotional disturbance." La. Code Crim. Proc. Ann.
art. 905.5(b) (West 1986). The statute also permits the
jury to consider "[a]ny other relevant mitigating circun-
stance." Id. art. 905.5(h).194 Accordingly, counsel
could have presented to the jury evidence that Petitioner
194. See also Lockett v. Ohio, 438 U.S. 586, 604 (1978)
(sentencer must not be "precluded from considering,
as a mitigating factor, any aspect of a defendant’s
character or record or any of the circumstances of
the offense that the defendant proffers as a basis
for a sentence less than death") (emphasis in orig-
inal).
62
was provoked and shot the trooper on impulse. Central to
this argument would have been evidence of Petitioner’s
close relationship with Joseph and Petitioner’s limited
impulse control. However, Guilbeau not only squandered an
opportunity at the guilt-innocence phase to educate the
jury about these factors, 19° he also presented no such
evidence at sentencing even though it was readily
available and of patent importance.
Counsel was aware that eyewitnesses viewed the
shooting as motivated by the trooper’s threatening
behavior towards Joseph. Counsel knew that shortly before
the crime, the Petitioner apparently cried: "I can’t
stand it he’s pushing my brother."19© In addition, as
counsel points out,
During my conversations with Dalton,
George, and Broussard, I learned that Dalton was
extremely attached to his older brother, Joseph.
I also became aware that Dalton shot the trooper
after the trooper pushed Joseph around.
Guilbeau Aff. ¢ 11. It is the expert opinion of Gerald
Block that, "had counsel conducted even a minimal
investigation .. . counsel could have further supported
what he already knew -- namely, that the Petitioner was
deeply attached to his brother Joseph and had reacted to
the trooper’s treatment of Joseph." Block Aff. | 21.
Similarly, Guilbeau acknowledges that given another
opportunity, "I would . . . establish Dalton’s attachment
to Joseph... ." Id. | 36.
That Dalton was deeply attached to Joseph would
have been beyond dispute. As Dr. Bear explains, Dalton
developed:
195. See discussion of Claim I supra.
196. Notice of Inculpatory Statements, La. Sup. Ct. Record
106.
63
an abnormal attachment to his older brother,
Joseph. Dalton was abandoned by his natural
mother, Rose Prejean, when he was still an
infant. As an adolescent, he was rejected by
both his natural mother and by the Aubreys, who
raised him. These experiences instilled in
Dalton a desperate need for family acceptance.
He consequently turned for support to Joseph,
the sole "adult" figure who seemed not to have
rejected him.
Bear Aff. 4 15.19’ These observations parallel those of
Petitioner’s family members and neighbors, all of whom
were readily accessible to Guilbeau and could have
testified at trial. Lori Morris, a close childhood friend
and neighbor of Petitioner, indicates:
Dalton and Joseph were every close; Dalton
got excited whenever he knew that Joseph was
coming to see hin.
When Joseph was visiting, he and Dalton
were inseparable. Dalton idolized Joseph. He
asked Joseph for advice about everything from
girls to football.
My brother Glen and I would get jealous
when Joseph was around. Dalton was our best
friend, but he still preferred to be with his
brother.
Morris Aff. 44 20-22. Dalton’s sister-in-law comments
that he was "especially" devoted to Joseph. 198 Anna Gail
Thibodeaux, Dalton’s sister, agrees and, like Dalton’s
mother, observes that "Dalton looked up to Joseph."199
Joseph concurs that after Dalton moved to Lafayette, they
"became very close." He says:
Dalton really looked up to me. He liked to
imitate the things I did and wear my clothes.
By the time he was fifteen, we were spending
lots of time together. Dalton still hung out
with me even after I left my mother’s house and
moved to my own place.
Joseph Prejean Aff. | 11-12.
197. See also id., Exhibit C (Thematic Apperception Test
results reflect Prejean’s desire to make contact with
others, particularly a male authority figure).
198. Donna Prejean Aff. | 4.
199. Anna Thibodeaux Aff. 4 4; Rose Prejean Aff. ¢ 11.
64
Counsel could further have demonstrated that the
Petitioner’s deep attachment to Joseph had profoundly
negative effects on the night of the shooting. As Dr.
Bear concludes:
Bear Aff.
Dalton developed such an intense attachment
to his brother that any perceived threat to
Joseph intensified Dalton’s impaired judgment
and impulsive behavior. Under these circunm-
stances, Dalton could neither control his
actions nor predict their consequences.
Dalton’s psychological deprivations
impelled him to protect Joseph once Dalton
believed that his brother was in serious danger.
Dalton’s shooting of Trooper Cleveland was the
direct result of an overwhelming impulse to |
protect Joseph that was rooted in both Joseph’s
role as the central male adult figure in
Dalton’s life and Dalton’s perception that
Joseph was the only family member who cared for
him.
qq 16, 20. Joseph’s recollection is consistent:
Shortly after pulling out of [Roger’s]
parking lot, we heard a siren. Dalton, who was
driving, brought the car to a stop.
The police officer parked his patrol car
only a couple of feet behind mine. I got out,
walked towards him, and asked him what was
wrong. He yelled "get your goddam ass against
the car." He kicked my legs apart, caught me
behind the neck, and threw me against the hood
of his patrol car.
My face was flat against the policeman’s
hood, facing my car. I could see Dalton
watching what was going on through my rear view
mirror.
The policeman was patting me down. I
noticed his gun was unclipped.
Dalton could never stand to see anyone
threaten me. When he saw what was happening, he
lost control. I heard gunshots.
Joseph Prejean Aff. 44 23-27. These events comport with
the observations and anecdotes of Dalton’s family members,
who could have testified that Dalton "would do anything
for Joseph, "200 and that "Dalton could never stand to see
200. Anna Thibodeaux Aff. | 4.
65
7 I!
anyone threaten his family members."291 tndeed, the night
of the shooting was not the first time that Dalton
interceded on Joseph’s behalf. Joseph remembers that:
Dalton tried to protect me when I was in
trouble. He once helped me when he saw someone
attack me with a "2 by 4". Dalton jumped in the
way and got hit.
Joseph Prejean Aff. ¢ 13.
Ultimately, counsel failed to substantiate
Dalton’s provocation not only by overlooking the
Petitioner’s relationship with his brother and its
effects, but also: (1) by failing to adequately
investigate Petitioner’s mental health and thereby uncover
that Petitioner had organic brain damage which made him
vulnerable to aggressive impulses and shaped his response
to the trooper’s. manhandling of his brother;29* and (2) by
failing to investigate the trooper’s disciplinary
records, although they might have supported rumors that he
"batted people around." Guilbeau Aff. 4 17. Prejean’s
response to the Trooper may also have been fueled by
paranoia. 293 Because of counsel’s deficiencies, the jury
sentenced the Petitioner to death without knowing these
important facts.
Counsel failed to uncover and present evidence
of Dalton’s provocation on the night of the shooting for
two reasons, neither of which is excusable or reasonable.
201. Donna Prejean Aff. ¢ 5. Ms. Prejean recalls, for
example, that "when Dalton’s uncle Cleveland once hit
his mother’s sister, Dalton wanted to attack his
uncle and had to be restrained." Id.
202. Guilbeau Aff. 4 29, Bear Aff. 44 17-20; see generally
discussion at Section A(1)(b) of Claim II.
203. See LTI Records, Burton Report (indicating that the
Petitioner was having trouble getting along with his
peers and describing the Petitioner as an individual
with paranoid trends); id., Dowling Report (noting
that the Petitioner was “afraid of others, including
peers and feels a constant threat of retaliation from
them"); Supp. Sam Aff. ¢ 2 (Dalton was "acting
paranoid" in Roger’s Bar the night of the shooting).
66
First, counsel was resigned to a first-degree murder
conviction and thus saw no need for conducting a searching
investigation of the Petitioner’s background. Guilbeau
Aff. ¢ 16. Counsel should have known, however, that his
refusal to investigate defenses for the guilt phase would
substantially impair his ability to plead for the
Petitioner’s life in the sentencing phase. "In a death
penalty case .. . the possible punishment is so extra-
ordinary that the defense attorney must consider from the
outset the impact that the guilt phase defense may have on
sentencing." Goodpaster, ia fe) ife: ective
Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L.
Rev. 299, 329 (1983).294 A jury cannot help but be
influenced by the vigor with which an attorney defends his
client; here, counsel’s seeming resignation to his
client’s fate, his failure to investigate important
mitigating factors and to educate the jury about them at
the guilt-innocence phase, 29° his acknowledged belief in
his own client’s guilt, and his statement to the jury that
"justice was done" when it convicted the Petitioner of
first-degree murder could only have hardened the jury
204. A copy of the Goodpaster article is filed herewith as
Appendix 42.
205. Had counsel presented a provocation defense in the
guilt-innocence phase, for example, the jury could
have considered it as a mitigating circumstance in
the sentencing phase. La. Code Crim. Proc. Ann. art.
905.2 (West 1986) (jury authorized to consider in
sentencing the evidence offered at trial on issue of
guilt). See also Goodpaster, 58 N.Y.U.L. Rev. at 329
("in order to fulfill the constitutional obligation
to ensure a meaningful penalty trial and a reliable
sentencing decision in a capital case, defense
counsel should integrate the guilt phase defense and
the penalty phase case for life, constructing and
presenting the guilt phase of the case as a
foundation for the mitigating case at the penalty trial").
67
against the Petitioner before the sentencing phase even
began. 206
Second, counsel elected not to introduce evi-
dence regarding the Petitioner’s character and devotion
to his brother because counsel fundamentally misunderstood
the legal consequences of doing so. Counsel believed that
if he introduced evidence of Petitioner’s character and
family relationships, the Court would permit the State to
introduce evidence of Prejean’s juvenile record.29’ This
belief was not only incorrect as a matter of law, but
also irrational. The trial court had ruled that evidence
of the Petitioner’s juvenile adjudications was
inadmissible for any purpose, State v. Prejean, No.
42,358 (La. 4th Jud. Dist. Ct. Oct. 25, 1977), and this
ruling was unassailable because the Louisiana Supreme
Court had established that a juvenile adjudication was
privileged information inadmissible in the capital
sentencing context. 298 See State v. Roberts, 331 So. 2d
11 (La. 1976), rev’d on other grounds, 431 U.S. 633
206. A jury imposing a sentence in a capital case is, of
course, influenced by the evidence it has just heard
in the guilt portion of the trial. See, e.g.,
Smith v. Wainwright, 741 F.2d 1248, 1255 (11th Cir.),
reh’g denied en banc, 747 F.2d 1468 (1984), cert.
denied, 470 U.S. 1087 (1985) (failure of counsel to
impeach key witness in guilt phase may have changed
the outcome of the penalty trial). See also
Goodpaster, 58 N.Y.U. L. Rev. at 328-334 (discussing
guilt phase defenses and their penalty phase effects).
207. Supp. Guilbeau Aff. 4 7.
208. Counsel indicates that apart from the two reasons
discussed in the text, the only reason he did not
present at the sentencing phase any evidence of
Dalton’s character and family relationships was that
he "did not want Mary Aubrey to testify at the
sentencing phase." Supp. Guilbeau Aff. 4 8. This
does not excuse Guilbeau’s failure to present
evidence of Petitioner’s provocation because Guilbeau
did not need Mary Aubrey to document either Prejean’s
deep attachment to his brother or Joseph’s treatment
by the trooper.
68
(1977) ;209 La. Rev. Stat. Ann. 13:1586 (West 1986) .210
Hence, due to counsel’s ineffective assistance, the jury
was precluded from considering crucial information about
the circumstances leading up to the offense.
bs Counsel failed to present mitigat-
ing evidence of the Petitioner’s
brain damage.
Evidence of brain damage and mental illness or
defect is "extraordinarily germane" to the sentencing
phase of a capital case. Newlon v. Armontrout, 693 F.
Supp. 799, 810 (W.D. Mo. 1988). As stated in Busby v.
Butler,
The totality of such evidence has the po-
tential to totally change the evidentiary
picture by altering the causal relationship
that can exist between mental illness and
homicidal behavior. Psychiatric mitigating
evidence not only can act in mitigation, it
can significantly weaken the aggravating
factors. Middleton v. Dugger, 849 F.2d
491 (llth Cir. 1988), citing Huckaby v.
State, 343 So. 2d 29, 33-34 (Fla. 1977).
538 So. 2d 164, 172-73 (La. 1988); see also La. Code Crin.
Proc. Ann. art. 905.5(b) (West 1986) ("extreme mental or
emotional disturbance" is mitigating circumstance).
209. Roberts relied in part on La. Rev. Stat. 13:1580(5)
(1974), which provided that a juvenile adjudication
shall not be deemed a "conviction." That ruling
affected what evidence could be introduced at
sentencing because the statutory aggravating
circumstances in 1977 included those in which "the
offender was previously convicted of an unrelated
murder, aggravated rape, or aggravated kidnapping."
La. Code Crim. Proc. Ann. art 905.4(c) (West 1984)
(emphasis added).
As noted in State v. Jackson, 490 So. 2d 536 (La. Ct.
App. 1986), section 13:1580 is no longer in effect.
That statute was in effect, however, at the time
Guilbeau represented Petitioner at trial and the
trial court relied upon that section when it deemed
evidence of Prejean’s juvenile record inadmissible.
210. In fact, the Louisiana Supreme Court denied the
State’s appeal from the ruling that the juvenile
adjudication was inadmissible at sentencing. State
v. Prejean, No. 60,954 (La. Nov. 23, 1977). The
State did not contest the trial court’s ruling on
the suppression of the juvenile adjudication during
the guilt-innocence phase or to impeach the accused.
69
The United States Supreme Court also has recog-
nized that evidence of brain damage and mental impairment
can play a critical role in the sentencing phase. See,
e.g., Penry v. Lynaugh, 109 S. Ct. 2934, 2947, on remand,
882 F.2d 141 (5th Cir. 1989); Eddings v. Oklahoma, 455
U.S. 104, 115-16 (1982). In Penry, for example, the
petitioner’s death sentence was vacated where the Court
could not be sure that, without appropriate instructions,
the jury was able to consider fully and give effect to
mitigating evidence that the petitioner suffered from
organic brain damage and moderate retardation, which
resulted in poor impulse control and an inability to learn
from experience. 109 S. Ct. at 2948, 2952. The Court
concluded that the eighth amendment had been violated
because a “reasonable juror" could well have believed that
there was no vehicle for expressing his view that because
of such evidence, the defendant did not deserve to die.
Id. at 2950.
Counsel provided ineffective assistance here
because, due to his inadequate invest ioation and failure
to adequately inform a competent psychologist, he failed
to uncover and present evidence that:
(1) the Petitioner’s ability to control violent
impulses is significantly limited by
neurological defects;
(2) this susceptibility to violent impulses is
exacerbated by neuropsychological defects
beyond the Petitioner’s control; and
(3) the Petitioner shot Trooper Cleveland
because of these neurological and
psychological defects.
Bear Aff. 44 6, 11-21.
70
Ls A leading psychiatric expert has
concluded that Dalton shot Trooper
Cleveland because of brain damage and
psychological defects beyond his
control.
Dr. David M. Bear, a physician who, until
recently was Chief of the Division of Neuropsychiatry at
Vanderbilt University, has conducted and supervised a
thorough neuropsychiatric examination of Petitioner. 211
Based upon this examination, two additional neurological
examinations of the Petitioner, and a comprehensive
battery of neurological and psychological tests, it is the
expert opinion of Dr. Bear that Dalton Prejean had brain
damage which, combined with psychological defects beyond
his control, precipitated his shooting of Trooper
Cleveland. Dr. Bear explains:
Taken as a whole, these tests [administered
to the Petitioner] Clearly revealed that Dalton
control, response maintenance and flexibility,
abstract thought, planning, insight and
judgment.
These abilities are coordinated at the
highest level by the frontal lobes of the brain.
Dysfunctions in these areas (which I will refer
to as "frontal lobe dysfunctions") generate
abnormal responses to situations involving
conflict. Consequently, Dalton’s impaired
judgment and impulsive behavior are predictable
in emotionally charged situations.
such as the perception, integration and decoding
of nonverbal cues which convey emotional
Significance.
Dalton’s upbringing almost certainly
aggravated the defects in impulse contro]
associated with his frontal lobe dysfunctions.
More specifically, his impulse control was
impaired by the absence from his Childhood of a
model of behavior control. kEarl Aubrey, the
uncle who raised Dalton, was an extremely
ineffectual symbol of authority. Mr. Aubrey’s
wife, Mary, the family disciplinarian, was
and qualifications is set forth in his affidavit at
71
unpredictably violent, acting lovingly one
minute and aggressively the next.
Equally damaging was Dalton’s development
of an abnormal attachment to his older brother,
Joseph . . . . Dalton developed such an intense
attachment to his brother that any perceived
threat to Joseph intensified Dalton’s impaired
judgment and impulsive behavior. Under these
circumstances, Dalton could neither control his
actions nor predict their consequences.
A reconstruction of the night that Dalton
shot Trooper Cleveland has convinced me that
Dalton’s neurological and psychological defects
substantially caused the shooting. For several
reasons [addressed below], these defects
generated and prevented Dalton from controlling
his violent reaction to Trooper Cleveland’s
aggressive treatment of Joseph.
First and foremost, Dalton’s frontal lobe
dysfunctions precluded him from controlling and
understanding the consequences of an impulse to
protect his brother at all costs.
Second, parietal lobe dysfunctions likely
contributed to the shooting by thwarting
Dalton’s efforts to decipher the Trooper’s
emotional state. In other words, Dalton
probably misread the Trooper’s aggressive
treatment of Joseph and took drastic measures he
thought were required to keep Joseph from
getting hurt.
Third, Dalton’s psychological deprivations
impelled him to protect Joseph once Dalton
believed that his brother was in serious danger.
(Finally) sleep deprivation and alcohol
ingestion would have even further reduced
Dalton’s already limited impulse control on the
night of the shooting.
Bear Aff. 4¢F 11-21.
ii. Counsel failed to uncover evidence of
Petitioner’s brain damage because
counsel inadequately investigated
Petitioner’s background and failed to
hire or adequately inform a competent
psychologist. 0
Counsel failed to uncover and present such
evidence of Petitioner’s brain damage and its tragic
consequences because, inexcusably, he inadequately
investigated Petitioner’s background and failed to hire or
adequately inform a competent psychologist.
72
It is the expert opinion of Gerald Block that
"rhjad Counsel conducted even a minimal investigation, he
would have learned that the Petitioner was brain damaged
and had severely limited control over aggressive
impulses." Block Aff. ¢ 21. Prejean’s family members and
friends -- all readily accessible to Guilbeau -- could
have told him, and in some cases did tell him, that
Petitioner was "troubled"21l2 and "did not have it
all".213 those who knew the Petitioner described him as
"strange," "mentally disturbed," impulsive,214 "easily
frustrated"215 and "‘crazy’ because he used to talk to
himself and to imaginary friends." Morris Aff. q 8. In
addition, the Petitioner was noticeably "depressed," had
trouble sleeping,?1© and when he did sleep, kept one eye
open at all times.217 His mental deficiencies were so
well known that they were the target of jokes. Morris
Aff. ¢ 8; Savoy Aff. | 4.
Even counsel’s limited investigation and
discussions with family members revealed that the
Petitioner had neurological problems that warranted
further inquiry. Mary Aubrey told counsel that Prejean
had once "hit her with a ‘jack,’" but he "made no attempt
to link this incident with any mental disease or defect
that Dalton had nor did [he] otherwise investigate this
incident."218 Mary also told counsel that the Petitioner
212. Anna Prejean Aff. | 3.
213. Sentence Report 3 (quoting Mary Aubrey); Donna
Prejean Aff. ¢ 3.
214. Anna Prejean Aff. 4F 3-4.
215. Savoy Aff. | 3.
216. Rosemary Prejean Aff. 4 9; Joseph Prejean Aff. ¢¢ 9-10.
217. Sentence Report 6.
218. Supp. Guilbeau Aff. ¢ 8.
73
was erratic, impulsive, and irrational.219 Furthermore,
when counsel spoke to Rosemary Prejean -- he waited until
four days before the trial to do so -- she told him that
her son was "‘different’ from other children and that he
was a nervous child who often talked to himself, answered
himself, and paced the floor for hours on end." Guilbeau
Aff. 44 18-19. Rosemary Prejean also informed counsel
that "once when Dalton was about 14 years old, he was
pacing the floor until 4:00 a.m. When Mrs. Prejean asked
him what was wrong, Dalton did not respond. Mrs. Prejean
then called the police. When the police arrived, and
asked Dalton what was wrong, Dalton responded that he was
going to sleep upstairs. Mrs. Prejean informed [counsel]
that they had no upstairs in their house." Id. 4 19.
Counsel had no excuse for failing to bring these
kinds of facts before the jury. 229 See, e.g., Stephens v.
Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 109 S. Ct.
189 (1988) .221 He himself admits that if he "could do it
219. Id. q 6.
220. See Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.
1989) (finding ineffective assistance of counsel
where "counsel’s failure to present or investigate
mitigation evidence resulted not from an informed
judgment, but from neglect.")
221. As a result of counsel’s failure to investigate miti-
gating evidence of defendant’s mental history and
condition in Stephens, "trial counsel learned none of
the details of defendant’s mental history until the
defendant’s mother testified briefly at the penalty
phase concerning, among other things, "several epi-
sodes of bizarre behavior" involving the defendant,
846 F.2d at 653, including the following:
About a year ago, my son -- my daughter called
me and told me to come over to her house, that
something was wrong with him, said he wasn’t
doing nothing but walking up and down the street
until midnight every night... . So -- a heap
of times I went there and talked to him down
there, and then he don’t do nothing but sit down
and stare at the wall and be quiet. I’d say,
"What’s wrong with you Kenny?" He/’d say,
"Nothing, don’t you see something up there?"
I’d say "I don’t see nothing... ." The
(continued...)
74
over again, [he] would use Rosemary .. . to show that
Dalton was mentally defective." Id. q 36.
In the opinion of Gerald Block, "equally
ineffective was counsel’s failure to obtain a complete
psychological profile of the Petitioner. Based on his
limited investigation, counsel had enough information to
warrant a full psychiatric inquiry." Block Aff. q 23.
Nevertheless, counsel proceeded to try the Petitioner’s
case without attempting to examine the Petitioner’s
records from LTI or interviewing any psychiatrist who had
evaluated the Petitioner there. Id. ¢ 25. Had counsel
reviewed Petitioner’s LTI records, he would have learned
that his client had a life-long and well documented?22
history of severe mental health problems. More
particularly, the records revealed that Petitioner:
(1) had a long history of mental illness; (2) displayed
paranoia;223 (3) showed symptoms of schizophrenia, for
which he was prescribed medication;224 and (4) had been
recommended for long-term hospitalization;?°.
221.(...continued) —
police picked him up there .. . and they said,
"Your son was walking up and down the street
just like he’s crazy." ...
Id. at 654. The bizarre conduct chronicled in
Stephens by the petitioner’s mother is disturbingly
similar to Dalton’s own inexplicable behavior.
Compare id. with Rosemary Prejean Aff. ¢ 9; Joseph
Prejean Aff. ¢ 9. The Stephens court concluded that
this evidence was so significant that counsel’s
failure to discover it had deprived the petitioner of
his right to counsel. 846 F.2d at 655.
222. Petitioner’s LTI file consists of at least 300 pages
and describes Petitioner’s history of emotional and
mental health problems in detail.
223. LTI Records, Burton Report; Sentence Report 5
(quoting Dowling Report).
224. LTI Records, Blackburn Report (Prejean was "heavily
medicated" and should be seen by psychiatrist for
medication evaluation before release); Kuehn Aff.
qq 6-7.
225. Sentence Report 5 (quoting Dowling Report).
#2
Given the available facts, an effective attorney
would have initiated a full scale psychiatric ex-
amination, which would have uncovered overwhelming evi-
dence of neurological and psychological defects.22© other
obvious avenues for investigation included the
Petitioner’s medical and psychiatric history, yet, for no
strategic reason, counsel failed to review them before
tria
1.227 As counsel concedes:
I should have hired a psychiatrist and
neurological expert to test Dalton and to
provide information about the cumulative effects
of retardation, brain damage, and youth. I |
should have reviewed and provided these experts
with Dalton’s school records, medical and mental
health records and juvenile records.
Id. at 34.228
In addition, counsel all but guaranteed that his
expert’s examination would unearth no evidence of the
Petitioner’s organic problems by providing Dr. Hawkins
with cryptic directions and, for no strategic reason,
asking the psychologist merely to test the Petitioner’s
intelligence. 229 Hawkins "was not asked to assess whether
[Petitioner] could control his actions on the night of
226.
227.
228.
229 «
Bear Aff. 44 11-13, 24; Guilbeau Aff. q{ 34. See Ake
v. Oklahoma, 470 U.S. 68, 83 (1985) (due process
guarantees a capital defendant a broad right in the
guilt and sentencing phases of trial to "access to a
competent psychiatrist who will conduct an appro-
priate examination and assist in evaluation, prepara-
tion, and presentation of the defense").
Bear Aff. 4¢ 29-30.
ee also Block Aff. ¢ 16:
Effective counsel should have his client
thoroughly evaluated by a psychiatrist or other
mental health expert. Counsel should provide
the expert with accessible information about his
client’s psychiatric history.
Guilbeau Aff. 44 31, 33; Hawkins Aff. q 4. Hawkins
testified that "(t]he lawyer supplied me the
information that he was up for a possible murder, and
he wanted some -- an I.Q. for an intellectual level
of functioning. And that’s all that was requested."
Tr. 882; Guilbeau Aff. 4 31.
76
(the shooting] or to consider how excessive consumption of
alcohol or drugs would have affected Mr. Prejean’s
behavior [{then]." Hawkins Aff. | 4.
To make matters worse, counsel, for no strategic
reason, failed to provide Hawkins with any information
about the Petitioner’s prior psychiatric or psychological
evaluations, or with any of the Petitioner’s educational,
employment, or juvenile records.*39 This was a critical
failing because, "as a matter of competent practice, a
psychologist or psychiatrist aware of the psychiatric
evaluation of Dalton contained in the Louisiana Training
Institute records should have administered [a thorough
mental status examination, which] would have revealed that
Dalton suffers from neurological and psychological
deficiencies." Bear Aff. 24,231
Furthermore, counsel did not give Hawkins basic
information about the circumstances of the shooting.
According to Hawkins,
Before I examined Mr. Prejean, Mr. Guilbeau
told me only that Mr. Prejean had killed a
policeman. Mr. Guilbeau did not tell me any of
the other circumstances of the shooting,
including: that Mr. Prejean had been drinking
and using drugs; that the shooting may have been
precipitated by what Mr. Prejean perceived to be
a threat to his brother; and that Mr. Prejean
had slept very little in the week prior to the
shooting.
Hawkins Aff. ¢ 5. Had counsel, as he should have,
informed Hawkins that the Petitioner was intoxicated,
counsel would have learned that the Petitioner’s
borderline retardation and brain damage were apt to
230. Guilbeau Aff. 44 31-33. Obviously, counsel could not
have given the psychologist copies of Dalton’s
medical, mental health or juvenile records because
counsel, for no tactical reason, had investigated
none of these things before trial. Id. 44 25, 27-30;
See also Hawkins Aff. ¢ 6.
231. Following his limited mandate, Hawkins took only a
limited history of the Petitioner. Hawkins Aff. ¢ 9.
77
diminish further his control over violent impulses when he
drank or was sleep-deprived. As Dr. Bear notes,
alcohol impairs frontal lobe functions and thus
can deprive the ingestor of his ability to
postpone ill-considered and aggressive actions.
Sleep deprivation has been shown to induce
paranoia and to diminish impulse control.
Therefore, sleep deprivation and alcohol
ingestion would have even further reduced
Dalton’s already limited impulse control on the
night of the shooting.
Bear Aff. ¢ 21.
Due to the limited purpose for which he was
retained, Hawkins conducted only a limited examination of |
the Petitioner, administering the Wechsler Adult Intel-
ligence Scale, the Stanford-Binet Vocabulary Subtest and
the Bender-Gestalt Test. Tr. 827; Hawkins Aff. { 9- Had
he been asked to do more than test Petitioner’s intelli-
gence, Hawkins would have performed a full battery of
tests, including a Rorschach test, a Thematic Apperception
Test, a Memory for Designs Test (which would have informed
Hawkins’ evaluation of the Bender-Gestalt test), and a
complete intelligence test. He also would have taken a
more detailed history of Prejean. Hawkins Aff. ¢ 9-
The limited nature of Hawkins’ examination was
particularly damaging to the Petitioner’s defense because
which is a widely used indicator of neurological deficien-
borderline retarded, he knew right from wrong and was
232. Affidavit of Dr. Mark Greenberg ("Greenberg Aff.")
(filed herewith as Appendix 43) 4 17. Dr. Greenberg
conducted a comprehensive review of the Bender-
Gestalt Test administered to Petitioner by Dr.
Hawkins. Dr. Greenberg analyzed Dalton Prejean’s
1977 test protocol using five separate techniques.
He applied: three different scoring schemes
developed by Dr. Hutt in 1960, 1969, and 1977; the
Hain system, published in 1964; and a method
developed by Drs. Pascal and Suttell in 1951. Id. 4
7 Based upon his analysis, Dr. Greenberg concluded
that Petitioner’s test results clearly revealed
organic brain damage. Id. 4 10.
capable of carrying out a plan. Tr. 828, 830-831.
Incredibly, counsel did not even consider seeking a second
opinion, Guilbeau Aff. ¢ 32. Had counsel reviewed the
Petitioner’s LTI records before trial, he would have known
that at least one other mental health professional had
drawn conclusions at odds with Hawkins’ findings.*>? In
addition, had counsel provided Hawkins with additional
information about the circumstances surrounding the
shooting, Hawkins’ own conclusion might have been
different. Hawkins Aff. q 13.
Had counsel adequately informed his own expert,
he could have presented evidence to the jury that
Petitioner is brain-damaged and was thus unable to control
violent impulses at the time of the shooting. Guilbeau
Aff. ¢ 29; Bear Aff. 14 17-21. This kind of testimony by
a competent professional would have been significant
because it bore directly on the Petitioner’s culpability
and therefore on the appropriateness of the death penalty.
cr. California v. Brown, 479 U.S. 538, 545 (1987)
(O’Connor, J., concurring).
Counsel’s haphazard and delinquent investi-
gation closely parallels that of counsel in Wilson v.-
Butler, 813 F.2d 664, 671-73, reh’g granted, 825 F.2d 879
(5th Cir. 1987), cert. denied, 108 S. Ct. 1059 (1988),
where the court held that petitioner was entitled to an
evidentiary hearing on his effectiveness claim to
determine whether counsel’s failure to investigate
evidence of mental defect was the result of a strategic
decision and whether that decision was reasonable. In so
holding, the Fifth Circuit noted that counsel "at least
ae
233. See psychiatric evaluation by Patrick Dowling, M.D.,
dated July 26, 1974, quoted in part in Sentence
Report 4-5 (concluding that Dalton showed “almost no
evidence of super ego structure" and appeared not to
"rknow] the difference between right and wrong").
79
had reason to ask (petitioner’s] parents further questions
about his problems in childhood or to communicate with the
foster home or any other institution known to have
relevant records." Id. at 671. The court further noted
that if these inquiries had suggested a mental defect,
counsel would have had reason to consult a competent
psychiatrist or psychologist. [Id.
Cs Counsel failed to present mitigating
evidence of the Petitioner’s troubled
family life and abuse by the woman
who raised him.
It is well recognized that evidence of an abused
childhood and troubled family history is particularly
compelling mitigating evidence. See, e.g., Eddings, 455
U.S. at 115 (1982) ("when defendant was 16 years old at
the time of the offense there can be no doubt that
evidence of a turbulent family history, of beatings by a
harsh father, and of severe emotional disturbance is
particularly relevant") .234 The importance of such
evidence was recently recognized by the Supreme Court in
Penry, where the Court explicitly endorsed the defendant’s
argument that "mitigating evidence of mental retardation
and childhood abuse has relevance to his moral culpability
beyond the scope of the [Texas statute] and that the jury
was unable to express its ’reasoned moral response’ to
that evidence in determining whether death was the ap-
propriate punishment." 109 S. Ct. at 2948.
234. See also Middleton v. Dugger, 849 F.2d 491, 495 (11th
Cir. 1988) (petitioner received ineffective assist-
ance of counsel and was entitled to new sentencing
hearing based on counsel’s failure to examine reform
school records chronicling "a childhood of brutal
treatment and neglect, physical, sexual and drug
abuse, low I.Q. and mental illness"); Waterhouse v.
State, 522 So. 2d 341, 344 (Fla.), cert. denied sub
nom. Dugger v. Waterhouse, 109 S. Ct. 178, and
Waterhouse v. Florida, 109 S. Ct. 123 (1988) (jurors
should have been allowed to consider mitigating
evidence of severe child abuse).
80
Had Counsel performed as an effective attorney
by seeking all available mitigating evidence, he "would
have learned ... that Mary Aubrey, who raised the
Petitioner, was an alcoholic who became violent when
drunk." Block Aff. ¢ 26. However, Counsel “neither asked
nor learned that Mary had a drinking problem," Guilbeau
Aff. ¢ 21, and he now concedes that, "[{i]f I could do it
over again, I would substantiate her abuse of Dalton."
Id. 4 37.
Here, counsel never contacted Prejean’s
childhood friends, such as Lori Morris, who could have
testified that Mary had a dangerous drinking habit.
Ms. Morris, for example, has sworn that:
Mary drank heavily. She started
immediately when she got home from work, and
drank all day on her days off. I often saw her
sitting on her porch drinking whiskey or beer.
Mary got moody and unpredictable when she
drank. She would be nice one minute, and then
violent the next. Sometimes, when Mary was
drinking heavily, she would make Dalton go to
bed without dinner. Other times, she would beat
him.
Morris Aff. 4 18-19. These observations are echoed in
the sworn statements of the Petitioner’s family members
who, if questioned, would have disclosed this information
to Guilbeau and the jury. Prejean’s mother says that
"Mary Aubrey was a heavy drinker. When drunk, Mary became
violent and would scream at Dalton."235 Donna Prejean
recalls that:
Mary was a heavy drinker who was a totally
different woman when she drank. She became
violent.
Once, in 1976, I was in Mary’s home with
Joseph and Dalton’s father, Dennis Prejean.
Mary had been drinking heavily and got into an
argument with Dennis about a watch that Joseph
had given him. Mary started to scream and told
everyone to leave her house. Before we could
leave, Mary attacked Joseph with an ice pick and
235. Rosemary Prejean Aff. q 6.
81
stabbed him in the arm. Mary then chased me
with the ice pick. I was eight months
pregnant, but I managed to avoid getting hurt by
hiding behind Dennis.
Donna Prejean Aff. qq 6-7.77°
Incredibly, although Prejean had informed his
attorney that his aunt beat him, counsel also made no
effort to determine the extent or severity of this abuse.
Guilbeau Aff. 4 21. There is simply no excuse for
ignoring compelling mitigating evidence under these
circumstances. Block Aff. | 26. Counsel could have
documented that Mary physically and psychologically abused
the Petitioner simply by interviewing family members and
neighbors.*37 As Lori Morris has stated:
I believe that Mary whipped Dalton almost
every day from the time he was in first grade
until the time he went to Louisiana in 1972. I
know this because Mary beat Dalton in her yard
and he often came over to my house after his
whippings. Dalton got welts on the back of his
neck and across his face from the beatings.
Mary needed few excuses to whip Dalton.
She would beat him when she found his bed
unmade, dishes in the sink, or things in the
yard.
Dalton often told me that he was afraid of
Mary because she whipped him so often. He would
hide under the bed when she came home from work.
Mary Aubrey would beat Dalton with whatever
was handiest at the time. Sometimes she used
branches off of the bushes in her yard,
sometimes a belt, sometimes an extension cord,
and sometimes a stick. On several occasions, I
saw her braid three branches together and wet
them before using them to beat Dalton.
When Mary beat Dalton, the neighbors could
hear him screaming and begging her to stop.
Mary would not stop until she got tired, though.
Once, when I was playing at Dalton’s house
when Mary arrived home from work, Mary whipped
Dalton right in front of me because he was not
allowed to have friends at his house. Another
time, Dalton was beaten so badly that he was
236. See also Joseph Prejean Aff. 4¢ 5-6 (describing the
ice pick incident and noting that "[({e]ver since I
have known her, Mary Aubrey loved to drink").
237. Morris Aff. 44 9-17; Guilbeau Aff. | 41.
82
embarrassed to go to school. I skipped school
with him and we hid in a nearby field.
One time, when we were around nine or ten
years old, Dalton and I found an open fire
hydrant on our way home from school. We stopped
to play in the water, but my mother found us and
made us come back to my house to dry off. My
mother was angry and told Mary Aubrey about what
Dalton and I had done. Mary then whipped Dalton
so hard that the welts on his back were open and
bleeding.
Dalton once told me, when he was around
eleven or twelve, that he thought that Mary did
not love him because she whipped him all the
time. Around this time, I believe that Dalton
also discovered that Mary and Earl Aubrey were
not his natural parents.
Mary used to taunt Dalton with the fact
that she was not his real mother. Mary told
Dalton that his family in Lafayette did not
want him. She said that Dalton was not her
responsibility and threatened to send him back
to Louisiana.
Morris Aff. ¢ 9-17. Consistent with his abuse at home,
Dalton was incredulous when he encountered close-knit
families,?38 and was deeply attached to those who cared
for him in Mary’s absence.*39 Dalton’s performance on
personality tests also reflect a history of abuse and
neglect. 249
Due to counsel’s passivity, the jury had no
knowledge of the severe and prolonged abuse that
Petitioner suffered as a child, a fact that could well
238. Avis Deliphose, a childhood friend of Dalton in
Houston, observes and could have testified that
"Dalton seemed amazed at how well my family members
got along with each other. He said he had seen such
close families only on television." Deliphose Aff.
q 7. Similarly, Avis’ mother could have testified
that she felt that Prejean liked to spend time in her
house because her family -- unlike his -- was
closeknit. "Dalton never talked about his home
situation, but [she] always suspected he had a bad
family life." Powers Aff. | 9.
239. Mrs. Johnny Stewart, who is now deceased, cared for
Dalton when he was a boy. Dalton’s attachment to the
Stewarts was obvious to those around him. Bryant
Aff. ¢ 8.
240. Bear Aff., Exhibit C (MMPI profile consistent with
history of abuse and neglect).
83
have influenced the jury’s decision whether his life
should be spared. See California v. Brown, 479 U.S. 538,
545 (1987) (O’Connor, J., concurring) ("{(E]vidence about
the defendant’s background and character is relevant
because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable
to a disadvantaged background, or to emotional and mental
problems, may be less culpable than defendants who have no
such excuse."); Thomas v. Kemp, 796 F.2d 1322, 1324-25
(llth Cir.), cert. denied, 479 U.S. 996 (1986) (counsel
was ineffective where, among other things, he failed to
present evidence of defendant’s difficult home
environment, defendant’s abuse as a child, and the
drinking problem of defendant’s mother).
d. Counsel failed to present
mitigating character evidence.
A defendant has the right to introduce virtually
any evidence in mitigation in the penalty phase, including
character evidence. See Lockett, 438 U.S. at 605;
Eddings, 455 U.S. at 112 (a capital defendant must be
permitted to present any evidence of his character,
psychological makeup, or background, or any other miti-
gating circumstances that may persuade the jury that he
should not suffer the ultimate sentence of death). This
reflects the Supreme Court’s recognition that one of the
key aspects of the penalty trial is that the sentence be
individualized, i.e., that the jury’s decision be based
on the particularized nature of the crime and the charac-
teristics of the individual defendant. Gregg v. Georgia,
428 U.S. 153, 199 (1976) (joint opinion of Stewart,
84
Powell, and Stevens, JJ.).241
It follows that:
([t]o prepare for the trial a capital case,
effective counsel must conduct a thorough
investigation of [both] the crime and the
defendant. . .
Investigation of a defendant’s background
must include consideration of his childhood,
friendships, treatment by parents and others,
education, employment, and medical and
psychiatric history.
Counsel should obtain relevant information
by reviewing records of his client maintained by
corrections facilities or other institutions,
and by interviewing parents, relatives,
friends, neighbors, clergy, teachers, and others
who may illuminate the defendant’s background.
Block Aff. 44 14-15. Here, “because counsel failed to
interview friends and family members who knew his client
well, counsel was unprepared to present a complete and
meaningful picture of the Petitioner that chronicled his
abandonment by his natural mother, lonely childhood,
churchgoing habits, and meaningful relationships." Block
Aff. ¢ 27.
Counsel now recognizes that he wasted a
valuable opportunity at sentencing to "humanize" his
client for the jury. Guilbeau Aff. 44 36-38. Rosemary
Prejean, for example, could have explained that she was
too sick to care for Dalton when he was born, and that she
consequently gave him to her sister-in-law to raise.
241. See also Goodpaster, 58 N.Y.U. L. Rev. at 321 ("Coun-
sel {for a capital defendant] will have to explore
the defendant’s past, upbringing and youth relation-
ships, treatment by adults, traumatic experiences,
and other formative influences. Counsel will have to
uncover witnesses from a possibly distant past, not
only relatives, but childhood friends, teachers,
ministers, neighbors ... ."); e.g., Harris v.
Dugger, 874 F.2d 756, 763-64 (11th Cir. 1989)
(petitioner was deprived of effective assistance of
counsel where attorney failed to introduce mitiga-
ting character testimony of petitioner’s friends and
loved ones; such evidence would have been particu-
larly beneficial as a means of showing that peti-
tioner was less reprehensible than the facts of the
crime suggested).
85
Rose Prejean Aff. 44 3-4- For that reason, Dalton grew up
in Houston and had only occasional contact with his mother
and siblings.
Counsel could have elicited important additional
information about the Petitioner’s childhood and character
if he had only contacted readily accessible people --
among them, Prejean’s caretakers, siblings, minister, and
childhood friends -- who cared deeply about the Petitioner
and would have welcomed the opportunity to speak out on
his behalf. Guilbeau Aff. 22. Guilbeau’s lack of
contact with these people was not the result of a
strategic or tactical decision. Id. ¢ 23. He simply
failed arbitrarily to investigate and present important
evidence of Dalton’s background to the jury. As counsel
acknowledges,
I did not ask a teacher, priest, or anyone
else to testify in the penalty phase of the
trial about Dalton’s churchgoing habits and
other behavior as a child. In hindsight, I
should have.
d. ¢ 38.242
Had he been asked or contacted by counsel,
Johnnie Stewart, whose wife helped care for Prejean until
he was 7 years old, would have testified that the
Petitioner was "a good boy with a sweet disposition" who
required no discipline and was considered by his wife "the
best child she had ever seen." Stewart Aff. | 7.
Reverend Bryant, the minister at the
Petitioner’s church who first met Prejean when he was a
child, would have testified that although the Aubrey’s
were not members of or active in his church, Dalton
oo ae
242. Counsel interviewed Dalton’s parents before the
trial, but that limited effort to pursue Dalton’s
background is insufficient to render counsel’s
assistance effective. See, &-G-, Blake v. Kemp, 758
F.2d 523, 534 (11th Cir.), cert. denied, 474 U.S. 998
(1985).
86
attended church regularly, "had an enthusiastic attitude
toward church activities," and on Sundays attended
sessions of both Bible School and the Baptist Training
Union. Bryant Aff. ¢4§ 8-9. Reverend Bryant could have
described how he "sent word to Mary Aubrey one Sunday that
Dalton wished to be baptized. [(However,] she would not
permit it. She sent word -- in no uncertain terms -- that
she did not want [him] to baptize Dalton. Id. 4 10.
Reverend Bryant would have characterized the Petitioner as
a quiet and considerate child "who did not draw attention
to himself," required no discipline, often volunteered to
do chores around the church" and was eager to help others.
Id. 44 11-12. In sum, "nothing about Dalton suggested
that he could ever be involved in a violent crime."
Ia. 4 13.
Avis Lanell Deliphose, a childhood friend, would
have testified that the Petitioner attended church
services with her and her family, that she "was never
scared or threatened by him in all the years that [she]
knew him," and that he was a "quiet, almost meek boy."
Deliphose Aff. 44 6, 10. Avis also would have expressed
her belief that "unless Dalton had been deeply disturbed
and greatly provoked," he would not have been involved in
the crime for which he was convicted and sentenced to
death. Id. 4411. Avis’ mother would have testified that
the Petitioner took church seriously, that he was always
quiet and well-behaved with her family, that he "never
got into an argument with anyone around [her] house, and
he never fought with any of [her] children." Powers Aff.
qq 7-8. Lori Morris would have testified that the
Petitioner was her closest childhood friend, that he
seemed so troubled as a little boy she felt protective of
him, and that when she heard that "Dalton had been
87
arrested in connection with the shooting of a highway
patrolman... - (she] could not believe that Dalton would
have done such a thing." Morris Aff. 44 5-7, 24-
Dalton’s sister Anna Marie also could have testified that
"Dalton did not fight unless he was provoked or felt
cornered." Anna Prejean q 5.
By depriving the jury of this information,
counsel inexcusably failed to humanize Prejean and to
further the jury’s understanding of his crime. Guilbeau
Aff. 44 36-38. Counsel thereby ignored the fundamental
goal that capital sentencing be individualized, focusing
on the particularized characteristics of the defendant.
Greaq, 428 U.S. at 199. It is much easier for a jury to
sentence to death an apparent outcast, rather than someone
whom the jury regards as a fellow member of society.
Counsel failed to present mitigating
evidence that Petitioner’s violent
impulses could be controlled by
medication in a structured environment
and that the crime may never have
occurred had Petitioner not been
released from LTI without the
recommended supervision. __t_—
Additional mitigating factors that counsel
inexcusably failed to develop were that: (1) the
Petitioner’s violent impulses could be controlled by
medication in a structured environment, and that the
Petitioner could thus become a productive member of a
prison population if given a life sentence; and (2) the
crime might never have occurred if the State had
restricted -- or even monitored -- Petitioner’s behavior
after his release from LTI.
Had counsel pursued even token inquiries, he
would have learned that the Petitioner, while at LTI,
received daily doses of drugs (specifically, Sinequan and
88
disorders. Kuehn Aff. ¢ 7.243 An informed professional
also could have told counsel that under appropriate
medication the Petitioner could control violent impulses.
Bear Aff. 4 22. In addition, a review of the LTI records
would have revealed to counsel that, despite episodes of
disturbed behavior outside of LTI, the Petitioner behaved
extremely well within its structured environment.?44 He
was cooperative, 24° posed no disciplinary problems, 246 and
was characterized as a model student.247 "Such evidence,
readily available but ignored, would have established that
the Petitioner’s aggressive impulses could be controlled,
that he was not unredeemable and that he could become a
productive member of a prison population if sentenced to
life." Block Aff. ¢ 28.248
243. See also LTI Records, Mental Health Consultant Report
of Dr. Frank C. Blackburn, dated June 25, 1976
("Blackburn Report"). A report dated July 31, 1974
by Dr. Patrick Dowling notes that "({m]edication is
not indicated at this time, but may be in the new
setting" -- apparently an adjustment center in
Scotlandville. Sentence Report 5 (quoting Dowling
report.)
244. Dr. Kuehn, who evaluated Petitioner at LTI, states:
"T noted in my diagnosis that with structure and
supervision, Dalton could adjust to his environment.
However, without the predictability and consistency
provided by rigid conditions, he was apt to have
problems functioning." Kuehn Aff. q 8.
245. See LTI Records, March 28, 1974 Observational Survey
of Al Malreaux (stating that Dalton is "cooperative"
and "basically a ‘good’ child" who "causes no be-
havioral problems") (filed herewith as Appendix 44);
LTI Records, January 20, 1975 letter from P.M.
Blackney, Institution Counselor, to Judge K. Saloom
(noting Dalton’s continued "positive attitudes and
behavior") (filed herewith as Appendix 45); LTI
Records, December 7, 1976 letter from Mark E. Sample,
Institution Counselor, to Judge K. Saloom (describing
Dalton’s behavior as continuing "in a positive
direction") (filed herewith as Appendix 46).
246. 10/10/72 letter from LTI Superintendent to Judge kK.
Saloom, La. Sup. Ct. Record 149.
247. Kuehn Aff. Exh. C.
248. Block Aff. 4 28. Dr. Bear states that “in any event,
Dalton could optimally control his behavior in an
| (continued...)
89
Counsel also would have learned, had he reviewed
Petitioner’s records from LTI, that a psychiatrist who
evaluated Petitioner in August 1976 had recommended that
he be considered for discharge, but only if "suitable
conditions [were] imposed to be sure that he had adequate
supervision and is going to live in a fairly stable
environment." LTI Records, Bishop Report. This doctor
further recommended that "fairly rigid probation
requirements should be made for a period of time." (Id.
Such requirements likely would have included reporting to
a probation officer, counseling, employment, and a
structured daily environment. Nevertheless, Petitioner
was unconditionally released into the custody of Mary
Aubrey -- a woman whose pattern of abuse rendered the
environment she provided anything but "stable."
Thus, counsel could have demonstrated to the
jury that Petitioner was released in error from LTI by
presenting evidence that: (1) the State failed to
restrict, or even monitor, Petitioner’s behavior after his
release; (2) these omissions breached the recommended
guidelines of the State’s own physician; and (3) without
any supervision, follow-up, or probation requirements,
Petitioner shot Trooper Cleveland in Lafayette less than
six months after his release. These facts could have
persuaded the jury that, but for his inappropriate and
unsupervised release from LTI, Petitioner may never have
killed Trooper Cleveland.
In sum, counsel’s conduct fell below an ob-
jective standard of reasonableness under prevailing
248.(...continued)
explicitly structured environment, such as a
penitentiary, where the prevailing rules are clearly
stated. Moreover, I believe that Dalton could
positively contribute to such an environment since he
has clear (though primitive) moral standards." Bear
Aff. 4 23.
90
professional norms. Strickland, 466 U.S. at 687. None of
counsel’s errors -- all of which substantiate ineffective-
ness -- can conceivably be characterized as the result of
strategic choices.
f. The Louisiana Supreme Court’s Busby
decision compels that Petitioner’s
application be granted.
This case is on all fours with the Louisiana
Supreme Court’s recent decision in Busby v. Butler, 538
So. 2d 164 (La. 1988). The Busby court vacated the
defendant’s death sentence because his attorney failed to
investigate and present mitigating evidence that Busby had
a significant history of emotional and mental problems,
had been in and out of numerous institutions, had a low
tolerance for frustration and could become suddenly
explosive, was unusually isolated from contact with other
human beings, had undergone drug therapy in an effort to
alter his behavior, and was diagnosed as suffering from an
Antisocial Personality Disorder since early childhood.
Id. at 170.
With respect to counsel’s failure to in-
vestigate, the Busby court stated, "{a]ll the documentary
evidence relied on by [the experts retained by defendant
to support his application for post-conviction relief] was
in existence at the time of trial and could have been
discovered from a reasonably competent investigation into
Busby’s background. With authorization from his client,
counsel could have obtained these records and considered
them for introduction at trial." Id. at 170. Additional-
ly, members of Busby’s family would have pled with the
jury to spare petitioner’s life had they been contacted by
counsel. Such testimony would have been important, the
court noted, "to help the jury see the troubled individual
before them as a human being whose life has value." Id.
ph
The court concluded that counsel’s representation at
sentencing "revealf[ed] no discernible strategy" and that
counsel’s failure to investigate the existence of miti-
gating evidence constituted ineffective assistance of
counsel. Id. at 171.
The parallels between Busby and this case are
striking. Here, as in Busby, petitioner had a significant
history of mental and emotional problems, had poor control
over violent impulses, had undergone drug therapy, and had
been diagnosed as having an Antisocial Personality Dis-
order dating back to childhood.?49 These mitigating
factors, coupled with evidence of the Petitioner’s in-
toxication, youth and provocation, could have established
that the shooting occurred because of the Petitioner’s
inability to control himself. Due to counsel’s omissions,
however, the picture that emerged in the sentencing
hearing was one of a person with no physiological or
psychological problems who shot down a police officer
without provocation.
Furthermore, as in Busby, there was no strategic
reason or excuse for counsel’s failure to investigate the
Petitioner’s background or to uncover readily available
mitigating evidence. See Guilbeau Affidavit || 23, 30,
33. Counsel could have requested the Petitioner’s records
from LTI. Counsel also could have interviewed and elic-
ited testimony from the Petitioner’s friends and family
members about the Petitioner’s mental limitations and
devotion to his family. Witnesses who were never con-
tacted could have explained that as a young boy, the
Petitioner was quiet, well-behaved, and attended church
regularly. They could have described how the Petitioner’s
behavior deteriorated as an adolescent.2°9 Instead, there
249. Sentence Report 5 (quoting Dowling Report).
250. Id. at 3.
92
was no one to plead for the Petitioner’s life. Thus, the
Petitioner, like Busby, was deprived of "the reasonably
competent assistance of an attorney acting as a diligent,
conscientious advocate for his life." 538 So. 2d at 173.
2s Counsel’s representation was
constitutionally deficient
because he presented three
mitigating factors ineffectively
and actually harmed Petitioner’s
case.
In addition to failing to investigate
adequately and present evidence of several compelling
mitigating factors, "counsel breached his duty to his
client at sentencing by ineffectively presenting those
mitigating factors that he introduced: intoxication,
youth, and borderline mental retardation." Block Aff.
q 34.
a. Counsel ineffectively presented
evidence of Prejean’s intoxication.
Among the statutory circumstances that Louisiana
juries must consider is that "(a]t the time of the offense
the capacity of the offender to appreciate the
criminality of his-conduct or to conform his conduct to
the requirements of law was impaired as a result of mental
disease or defect or intoxication." La. Code Crim. Proc.
Ann. art. 905.5(e) (West 1986); see Waterhouse v. State,
522 So. 2d 341, 344 (Fla.), cert. denied sub nom. Dugger
v. Waterhouse, 109 S. Ct. 178, and Waterhouse v. Florida,
109 S. Ct. 123 (1988) (jury should have been allowed to
consider mitigating evidence that petitioner was under the
influence of alcohol on the night of the murder).
Here, by counsel’s own admission, "({he] should
have hired an expert on alcohol who was knowledgeable
about its effects on the young and retarded, and [he]
should have provided that expert with details about the
73
shooting. [He] also should have tried, with additional
witnesses, to establish Dalton’s intoxication at the time
of the shooting." Guilbeau Aff. q 35- It is the expert
opinion of Gerald Block that "had counsel investigated, he
_ . could have substantiated the Petitioner’s drinking
and drug use prior to the shooting." Block Aff. q 22.
Instead, counsel provided ineffective assistance by
inadequately investigating and presenting evidence of the
Petitioner’s intoxication. The failure to substantiate
Petitioner’s intoxication was especially damaging due to
counsel’s failure to cross-examine Michael George and
Michael Broussard effectively on that point during the
guilt-innocence phase of the trial. See discussion supra
regarding Claim I.
The Petitioner had consumed large quantities of
alcohol and drugs on the night of the shooting, but his
attorney did virtually nothing at sentencing or before to
establish the extent of the Petitioner’s intoxication and
its effect on his ability to control his violent impulses.
Counsel interviewed no one who was present at The Harlem
or Roger’s, for ample, to determine how much alcohol the
Petitioner had drunk. Guilbeau Aff. 44 14(b), 20. This
did not "meet even a minimal standard of effectiveness,"
Block Aff. ¢ 22, and by virtue of counsel’s omission,
important evidence of the Petitioner’s profound
intoxication was left uncovered.
Had he been contacted by counsel, Carlton Savoy
would have disclosed that when he ran into the Petitioner
at Roger’s at approximately 1:30 a.m., he "could tell that
Dalton had been drinking. [Dalton] was usually a quiet,
withdrawn person. When [Carlton] met him that night at
Roger’s, [Dalton] was glassy-eyed, outgoing and
94
animated."2°51 Michael Sam, another patron of the bar,
would have indicated that:
While at Roger’s, I shared approximately
five fifths of Thunderbird Whiskey, four fifths
of White Port and eight quarts of beer with
Joseph, Dalton, Roland Arceneaux, and Rivers
Jackson.
I also smoked marijuana with Dalton Prejean
in the parking lot at Roger’s on several
occasions during the early morning hours of July
2, i977.
When Dalton Prejean left Roger’s at
approximately 4 a.m., he was visibly drunk. His
eyes were red and he did not walk straight.
Sam Aff. 44 4-6. Sam also could have disclosed that when.
he saw Prejean at Roger’s, he "noticed that he was acting
paranoid.
He seemed unduly concerned for his safety."
Supp. Sam Aff. | 2.
Counsel could have completed the picture of
Petitioner’s drunken state by obtaining testimony from
Joseph Prejean, as follows:
201
I first saw Dalton on July 1, 1977 when he
came to my house in Lafayette at about noon. He
arrived with his friend, Michael George.
Michael, Dalton, and I split at least 40 ounces
of beer during a two-hour period. Dalton and
Michael then left.
I next saw Dalton early in the evening of
July 1, 1977 at the house of my mother-in-law,
Velma Thibodeaux. Dalton arrived there with
Michael George, and I could tell Dalton had been
drinking. Dalton’s eyes were bloodshot, and
partially closed. He was giggling steadily,
which is something he does when he is drunk.
Dalton, Michael George, and I left my
mother-in-law’s house to go to the Harlem Bar in
Lafayette. We met Michael Broussard there at
approximately 8:30 p.m. Michael George knew the
bartender, so a lot of our drinks were free.
The four of us split at least two fifths of gin
and about two quarts of beer.
The four of us left the Harlem on foot
after we had been there about an hour. We went
to Velma Thibodeaux’s house, picked up my car
and Donna, and drove Donna home. Dalton was
still squinting and giggling, a sign that he was
drunk.
Savoy Aff. | 6.
95
After we dropped Donna off, Michael George,
Michael Broussard, Dalton, and I drove around
drinking. We stopped in a number of places for
alcohol.
We arrived at Roger’s Bar at about 1:00
a.m. on the morning of July 2, 1977. We had
been drinking steadily until then.
In the parking lot of Roger’s, we shared
some pills; I think they were "black mollies"
_ . « « Dalton and I each had between three and
five pills.
Between the time we dropped Donna off at
her mother’s house and the time we left Roger’s
at about 4:15 a.m., Michael Broussard, Michael
George, Dalton, and I split about four fifths of
gin, sixteen quarts of beer, and a bottle of
Robitussin cough syrup. Both Dalton and I
weighed about 135 pounds at that time.
Joseph Prejean Aff. qq 14-22. Thus, effective counsel
could have used readily accessible witnesses to establish
that Dalton had consumed a dangerous mixture of alcohol
and drugs around the time of the shooting. Instead,
counsel relied on the testimony of Donna Thibodeaux, who
could shed no light on the Petitioner’s intoxication at
the relevant time.
Ms. Thibodeaux testified at the sentencing
hearing that when she saw the Petitioner at midnight, five
hours before the shooting, he was under the influence of
alcohol, as evidenced by his red eyes and unclear words.
Tr. 818-24. Incredibly, that testimony was the sum and
substance of counsel’s presentation on intoxication,
although even Ms. Thibodeaux could have shed further light
on that issue by testifying that when she saw Dalton at
approximately 5:30 a.m., "Dalton still looked drunk; his
eyes were red." Donna Prejean Aff. ¢ 12. Because the
jury undoubtedly assumed that defense counsel put on all
available intoxication testimony, Thibodeaux’s lack of
relevant knowledge undermined the intoxication defense.
Additionally, although counsel’s expert, William
Hawkins, had a certificate in alcoholism, 2° counsel did
as
252. Tr. 826. ee also Hawkins Aff. 4 2-
96
examination. According to Hawkins:
I did not meet with Mr. Guilbeau prior to
Mr. Prejean’s trial to discuss my examination of
Mr. Prejean. Mr. Guilbeau never told me what
questions he would ask or what the prosecutor
would ask on cross-examination at sentencing.
Mr. Guilbeau did not ask me to testify about the
effect of alcohol on Mr. Prejean’s ability to
control his behavior.
d. ¢ 10. For these reasons, Hawkins heard for the first
intoxication on the night of the shooting, and the
consequences of this were severe. Dr. Hawkins observes:
Guilbeau asked me, during my testimony, what
effect alcohol consumption would have on an
individual of Mr. Prejean’s mental age. Since I
did not know how much alcohol or drugs Mr.
Prejean had consumed on July 2, 1977, I was not
able to testify as to the actual effect of Mr.
Prejean’s alcohol and drug consumption on his
behavior on the night of the shooting.
Id. ¢ 12. Thus, any opinion Hawkins had on how
intoxication might affect the Petitioner’s conduct, see
Tr. 829-30, was purely hypothetical and vulnerable to
cross-examination:
Q. You have made a comparison or testified
about the effect of alcohol on the results
that you found in his testing. You don’t
personally know how much, if any, alcohol
Dalton Prejean had at any particular time?
A. No.
Q. In arriving at your opinion, are [sic] you
supplied with information as to a degree of
intoxication?
A. No sir, I was not.
253. Petitioner told Hawkins that he smoked and drank
occasionally, but Hawkins did not ask and Petitioner
did not indicate whether he had consumed alcohol on
the night of the shooting. Hawkins Aff. q 8-
97
Petitioner’s right to present mitigating
evidence meant little under these circumstances.
bd. Counsel ineffectively presented
mitigating evidence of Dalton’s youth.
The youthfulness of the offender at the time of
the offense carries great weight at the sentencing phase.
See, e.g., Stanford v. Kentucky, 57 U.S.L.W. 4973 (June
26, 1989) (acknowledging that "it is .. . overwhelmingly
probable that the very considerations which induce peti-
tioners and their supporters to believe that death should
never be imposed on offenders under 18 cause prosecutors
and juries to believe that it should rarely be
imposed").2°4 As stated in Eddings, "youth is more than a
chronological fact. It is a time and condition of life
when a person may be most susceptible to influence and
psychological damage." 455 U.S. at 115. Accordingly,
Louisiana has recognized the importance of youth by
requiring this factor to be considered as a statutory
mitigating circumstance. La. Code Crim. Proc. Ann. art.
905.5(f) (West 1986).
The Petitioner was only 17 years old at the time
of the shooting, but the jury sentenced the Petitioner
without actually receiving evidence of that fact. Counsel
put on no witness or other evidence in the sentencing
phase to establish the Petitioner’s actual age at the time
of the shooting. Tr. 818-35. The Prosecutor seized upon
this omission in his closing, stating: "As for the age of
the accused, we heard Dr. Hawkins testify about the mental
254. In fact, four justices were prepared to hold execu-
tions of 17-year-old murderers per se unconstitu-
tional. See also Thompson v. Oklahoma, 108 S. Ct.
2687 (1988) (setting aside Oklahoma’s imposition of
death sentence on individual who was 15 years old at
time of the offense); Eddings, 455 U.S. at 116; Jones
v. Thigpen, 788 F.2d 1101, 1103 (5th Cir. 1986),
cert. denied, 479 U.S. 1087 (1987); Newlon v. Armon-
trout, 693 F. Supp. 799, 810 (W.D. Mo. 1988).
98
age of the accused. I might say that we have never had
any testimony about his actual chronological age." Tr.
842.2°°
Having presented no evidence of the Petitioner’s
actual age, counsel’s abbreviated argument based on
Petitioner’s youth could have no real impact. See Jones
v. Thigpen, 788 F.2d 1101 (5th Cir. 1986), cert. denied,
479 U.S. 1087 (1987) (petitioner was deprived of effective
assistance of counsel by attorney’s failure to present
mitigating evidence that petitioner was only 17 years old
and mentally retarded at the time of the offense).
é. Counsel ineffectively presented
mitigating evidence of the Peti-
tioner’s borderline mental retard-
ation.
"(JTjust as the chronological age of a minor is
itself a relevant mitigating factor of great weight, so
must the background and mental and emotional development
of a youthful defendant be duly considered in sentencing."
Eddings v. Oklahoma, 455 U.S. at 116.299 Here, counsel
ineffectively presented evidence of the Petitioner’s
limited intelligence by poorly preparing and examining his
255. The jury could have determined Dalton’s age only by
extrapolating from disjointed portions of the testi-
mony of Dr. Hawkins and others. Tr. 827 (noting
that Dalton was 17 years 11 months when he was
examined; referring to a report by Hawkins dated
November 29, 1977, with no connection made between
report and examination).
256. See also Jones v. Thigpen, 788 F.2d at 1103 (holding
that counsel’s failure to proffer evidence of defen-
dant’s mental retardation and youth constituted in-
effective assistance of counsel); Newlon v. Armon-
trout, 693 F. Supp. 799, 810 (W.D. Mo. 1988) (noting
that defendant’s youth at the time of the offense and
fact that he was "mentally slow" were "extraordinar-
ily germane" to the sentencing jury’s inquiry); La.
Code Crim. Proc. Ann. art. 905.5(e) (West 1984)
(sentencing jury must consider mitigating evidence
that at the time of the offense the capacity of the
defendant to appreciate the criminality of his con-
duct or to conform his conduct to the requirements
of law was impaired as a result of mental defect).
99
expert on this point and by failing to develop evidence
that the Petitioner’s retardation impaired his judgment
and development.
During the sentencing hearing, Dr. Hawkins
testified that the Petitioner is borderline mentally
retarded and has the mental age of a 13-year-old.
Counsel vitiated the mitigating effect of Hawkins’
testimony, however, by eliciting testimony that was
harmful to the Petitioner and undermining the doctor’s
credibility. See Tr. 825-35.
Specifically, counsel deliberately elicited
harmful and questionable testimony from Dr. Hawkins that
the Petitioner knew right from wrong and was capable of
carrying out a plan:
Os All right. Dr. Hawkins, in summary, your
intelligence tests revealed that he was
functioning at a mental age of thirteen
(13) years six (6) months. Correct?
A. Right.
Oo. Also, that he had the ability to
recognize, in your opinion, between right
and wrong?" |
A S Right é & 3
Q. And I think you concluded your report that
he was capable of carrying out a plan?
A. Yes. In that sense, as a thirteen (13) or
fourteen (14) year old he could plan
something and carry it out, or function at
that level.
Tr. 830-31. Not surprisingly, the prosecutor capitalized
on this damaging information in his cross-examination:
Q. In other words, he would have no problen,
by the test you ran, planning and intending
to kill somebody, and going about the
various maneuvers to do it?
A. If he had acted -- of, if he was planning
something he could do it at a thirteen (13)
or (14) years level, because there’s a
range there. So he is -- he is functioning
at that level. He could do it at that
level, yes.
100
Tr. 831. Guilbeau did not conduct a redirect examination
of Hawkins and thereby squandered an opportunity to
emphasize that: (1) the crime at issue was not
premeditated; (2) the planning capabilities of Petitioner,
a borderline retarded boy, were substantially less than
those of an adult; and (3) Prejean acted on impulse and
not according to plan. Guilbeau erred further by failing
to ask Hawkins
whether Mr. Prejean’s alcohol and drug
consumption, the perceived threat to his brother
Joseph, or Mr. Prejean’s lack of sleep would
have qualified his conclusion [that Petitioner
could distinguish between right and wrong and
follow through on a plan]. In fact, [Hawkins]
conclusion might have been so qualified.
Hawkins Aff. 4 13. Hence, the one helpful piece of
information presented to the jury through Hawkins -- that
the Petitioner is a borderline retarded youth with the
mental age of a 13 year old -- was largely if not
completely nullified by Hawkins’ untested conclusions that
Petitioner could formulate a plan and distinguish right
from wrong. Counsel further undermined his expert’s
credibility by exposing him to damaging cross-examination
on the effects of the Petitioner’s intoxication on the
night of the shooting. See discussion supra in Section
A(2) (a) of Claim II.
Counsel also served his client ineffectively by
failing to demonstrate that Petitioner’s relationships and
performance at school corroborated his limited cognitive
abilities and development. Because counsel never reviewed
the Petitioner’s records, the jury never learned that as a
teenager, his judgment, intellectual skills and maturity
were mired at the first grade level.2°7 cf. State v.
257. In 1971-72, Dalton was "classed as a seventh grader"
but "achieve[{d] only at second grade level." See LTI
Records, October 10, 1972 letter from LTI
Superintendent to Judge Kaliste Saloom. When Dalton
(continued...)
101
Sonnier, 380 So. 2d 1, 7-8 (La. 1979) (death sentence was
arbitrarily imposed where jury recommended death in
apparent disregard of substantial mitigating factors,
including defendant’s excitable disposition and limited
education). Family members who could have testified that
Dalton "seemed ‘slow’" and "was unable to converse on the
same level as his peers" were never contacted by Guilbeau.
Savoy Aff. q¢ 3.
These avoidable blunders left the jury with the
mistaken impression that the Petitioner’s mental defects
had no effect on his behavior the night of the shooting,
and that the Petitioner’s mental retardation had only a
limited impact on these events. Thus, while strong
mitigating evidence was readily available, counsel inef-
fectively presented it to the jury.
B. But For Counsel’s Failure To Provide
Effective Assistance At The Sentencing
Hearing, There Is A Reasonable Probability
That The Jury Would Have Voted To Spare
; ,
It is the expert opinion of Gerald Block that,
[c]Jounsel’s failure to perform at a minimally
effective level prejudiced the Petitioner.
Absent counsel’s errors, there is a reasonable
probability that the jury would have concluded
that the balance of aggravating and mitigating
circumstances did not warrant death.
Block Aff. 4 10.
Counsel’s failures to develop and present at
sentencing an accurate and complete picture of the
Petitioner’s brain damage and mental limitations were
particularly damaging. As the Louisiana Supreme Court
concluded in Busby v. Butler: "(I]f the mitigating
257.(..-.continued)
was academically tested in 1972 he was placed in an
unclassified remedial section where he worked at the
first grade level. See LTI Records, Monroe,
Louisiana Academic, Vocational, and Remedial Records
(filed herewith as Appendix 47).
102
circumstance of mental impairment had been established,
the degree of likelihood that a jury would not have
recommended a death sentence is sufficient to undermine
confidence in the outcome of this phase of trial." 538
So. 2d at 172.28 That the Petitioner was prejudiced by
his counsel’s failure to retain a competent psychiatrist
or psychologist is also made clear by recent jurisprudence
recognizing the vital importance of capital defendants
receiving competent psychiatric assistance. See Ake v-
Oklahoma, 470 U.S. 68, 83-84 (1985) (due process requires
that states provide defendants raising an insanity defense
with one competent psychiatrist in both guilt and
sentencing phases).
Counsel’s failure to explore character evidence
and present witnesses who cared for the Petitioner also
prejudiced his client and thereby violated the Petition-
er’s right to effective assistance of counsel. See, &-G-,
Thomas v. Kemp, 796 F.2d 1322, 1325 (11th Cir. 1985),
cert. denied, 479 U.S. 996 (1986) (holding that record
supported trial court’s decision that defense counsel’s
failure to present character witnesses constituted inef-
fective assistance of counsel); Vv emp, 758 F.2d
258. See also Jones V- Thigpen, 788 F.2d 1101 (5th Cir.
1986), cert. denied, 479 U.S. 1087 (1987) (counsel’s
failure to present mitigating evidence that petition-
er was 17 years old and mentally retarded at the time
of the offense deprived petitioner of effective
assistance of counsel); Evans v. Lewis, 855 F.2d 631
(9th Cir. 1988) (counsel’s failure to present evi-
dence of defendant’s mental illness, including
schizophrenia, constituted ineffective assistance of
counsel); Agan_ v. Dugger, 828 F.2d 1496, 1496-97
(11th Cir. 1987) (defendant entitled to hearing on
ineffective counsel claim based on counsel’s failure
to investigate defendant’s history of paranoid
schizophrenia and treatment with anti-psychotic
medication); Thomas Vv. Lockhart, 738 F.2a 304, 308-09
(8th Cir. 1984) (writ granted where counsel failed to
investigate the seriousness of mental problems from
which defendant suffered).
103
(1985) (holding that defense counsel’s failure to present
character evidence in mitigation constituted ineffective
assistance of counsel) .2°9
The prejudice suffered by Prejean is virtually
identical to that suffered by defendant in Brubaker v.
Dickson, 310 F.2d 30 (9th Cir. 1962), cert. denied, 372
U.S. 978 (1963). In Brubaker’s trial for first-degree
murder, a court-appointed psychiatrist examined defendant,
but failed to discover that he had organic brain damage
which caused defendant to act out in a hysterical,
impulsive manner when under the influence of alcohol. 310
F. 2d at 33 n.10, 35 n.20. Although his attorney was
aware of a history of possible beatings and his client’s
drinking the night of the shooting, he -- like counsel
here -- "made no effort to elicit appellant’s personal
history, made no inquiries of appellant’s family, friends
Or employers ...." Id. at 35. Brubaker’s counsel
called no witnesses in defense or in mitigation. Id. at
36. The court held that defendant’s fourteenth amendment
right to representation at trial had been violated, id. at
38-39, noting that "[e]vidence as to appellant’s mental
state was also relevant to the question of penalty, and
might well have been persuasive." Id. at 38.
Here, as in Brubaker, there is a reasonable
probability that the jury would have not imposed a death
259. See also Tyler v. Kemp, 755 F.2d 741, 744-46 (11th
Cir. 1985), cert. denied, 474 U.S. 1026 (1985)
(holding that defense counsel was ineffective in
failing to present testimony of defendant’s family
members in mitigation); King v. Strickland, 748 F.2d
tah 1463-64 (iss Cir. 1984), cert. denied sub nom.
Strickland v. King, 471 U.S. 1016 (1985) (holding
that counsel’s deficient performance in failing to
present available character witnesses as mitigating
evidence warranted reversal of death sentence); and
Harris v. Dugger, 874 F.2d 756, 763-64 (11th Cir.
1989) (holding that petitioner was prejudiced by
counsel’s failure to investigate and present
testimony of friends and family regarding
petitioner’s good character).
104
sentence, if only it had been apprised of important
mitigating circumstances. Indeed, there is a particularly
great likelihood that the jury would not have sentenced
Dalton Prejean to die because only one aggravating cir-
cumstance -- the killing of a police officer -- was pre-
sented in this case. See Busby, 538 So. 2d at 172-73;
Wilson, 813 F.2d at 673 (because jury’s decision in favor
of death penalty was based on only one statutory aggra-
vating circumstance, introduction of mitigating evidence
of mental impairment might have led the jury to recommend
life imprisonment instead); cf. Strickland, 466 U.S. at
699-700 (characterizing three aggravating circumstances as
"overwhelming") .269
Moreover, the facts underlying the aggravating
circumstance were not likely to have incited the jury.
Petitioner was not a rape-murderer or a torturer. Cf.
State v. Sonnier, 380 So. 2d 1 (La. 1979). Petitioner was
not resisting arrest or committing a felony. Had the jury
been afforded anything approaching a full understanding of
Petitioner’s limitations, the jury would have given the
aggravating circumstance as little weight as could be
conceivable in any capital case.
The sole aggravating circumstance here would
thus have been readily outweighed by the effective in-
vestigation and presentation of character evidence and at
least seven mitigating circumstances: (1) provocation;
(2) brain damage; (3) child abuse; (4) intoxication;
(5) youth; (6) mental retardation; and (7) control of
aggressive impulses with medication. As Judge Johnson
260. As indicated previously, the trial court ruled that
Petitioner’s prior juvenile adjudication of
delinquency for the killing of a cab driver was not
admissible at any phase of the trial. State v.
Prejean, No. 42,358 (La. 4th Jud. Dist. Ct., Oct. 25,
1977).
105
noted, "(t]he State’s pursuit of the death sentence
against Prejean rested on one factor, and one factor
alone: that the murder victim was a peace officer engaged
in his lawful duties. The factors militating in favor of
a sentence less than death were, on the contrary,
numerous ... ." Prejean v. Blackburn, 743 F.2d 1091,
1111 n.12 (5th Cir. 1984)(Johnson, J., dissenting),
modified on other grounds sub nom. Prejean v. Maggio, 765
F.2d 482 (1985), cert. denied sub nom. Prejean v.
Blackburn, 109 S. Ct. 3259 (1989).
Had the jury been given a complete picture of
Dalton Prejean, there is a reasonable probability that
they would not have sentenced a 17-year-old, brain-damaged
youth to die. Counsel’s efforts thus "fell below the
minimal constitutional standard applicable in a capital
case." Busby, 538 So. 2d at 173. Petitioner is plainly
entitled to be resentenced, or at the very least, to an
evidentiary hearing on the issue of ineffective assistance
of counsel.261
261. Similarly situated petitioners facing execution have
been granted an evidentiary hearing on the issue of
ineffective assistance of counsel. See Busby v.
Butler, 538 So. 2d 164 (La. 1988); Sawyer v. Maggio,
468 So. 2d 554 (La. 1985); Williams v. Butler, No.
33,481, (35th J. Dist. Ct. July 5, 1989); Bates v.
Butler, No. 84-0947-A, (27th J. Dist. Ct. Oct. 22,
1987).
106
CLAIM Iif
PETITIONER WAS DEPRIVED OF THE
EIGHTH AND FOURTEENTH AMENDMENT
PROTECTION AGAINST AN ARBITRARY AND
CAPRICIOUS SENTENCE WHEN, DUE TO
COUNSEL’S INEFFECTIVENESS, THE
JURY WAS PRECLUDED FROM CONSIDERING
CRUCIAL MITIGATING EVIDENCE.
Because counsel’s ineffectiveness -- regardless
of whether it rose to the level of a sixth amendment
violation -- precluded the jury from considering relevant
mitigating evidence in the sentencing phase of the trial,
Petitioner was also deprived of his rights under the
eighth and fourteenth amendments of the United States
Constitution and Article I, Section 16 of the Louisiana
Constitution to be protected against an arbitrary and
capricious sentence. See Hitchcock v. Dugger, 107 S. Ct.
1821, 1822 (1987). As observed by Judge Tate:
(W]hile the deficiency of counsel may not under
Strickland constitute unconstitutional Sixth
Amendment ineffectiveness, nevertheless it may
run afoul of Eighth Amendment concerns against
the unreliable, arbitrary, and freakish imposi-
tion of the capital sentence, condemned by the
Supreme Court over the past twelve years
Milton v. Procunier, 744 F.2d 1091, 1103 (5th Cir. 1984)
(Tate, J., concurring with holding that sixth amendment
had not been violated), cert. denied, 471 U.S. 1030
(1985).
The United States Supreme Court has repeatedly
emphasized that the eighth amendment requires an individu-
alized consideration of each defendant being sentenced for
a capital offense. Penry v. Lynaugh, 109 S. Ct. 2934,
2947, on remand, 882 F.2d 141 (5th Cir. 1989); Eddings v.
Oklahoma, 455 U.S. 104, 112 (1982); Lockett v. Ohio, 438
U.S. 586, 603-05 (1978); Woodson v. North Carolina, 428
U.S. 280, 304 (1976) (plurality opinion). Attention to
the unique circumstances of the individual is required in
order to avoid the kind of arbitrary and capricious
107
infliction of punishment that the Supreme Court condemned
in Furman v. Georgia, 408 U.S. 238, 274 (1972) (Brennan,
J., concurring), 310 (Stewart, J., concurring) .2°2
Part and parcel of this rule is the requirement
that "the sentencer may not refuse to consider or be
precluded from considering ‘any relevant mitigating
evidence.’" Hitchcock, 107 S. Ct. at 1822 (1987)
(emphasis added) (quoting Skipper v. South Carolina, 476
U.S. 1, 4 (1986)). Such evidence includes any aspect of
the defendant’s character and record and the circumstances
of the offense that might persuade the sentencer to impose
a sentence of life instead of death. Lockett, 438 U.S. at
604.263 As stated most recently in Penry:
If the sentencer is to make an individualized
assessment of the appropriateness of the death
penalty, “evidence about the defendant’s back-
ground and character is relevant because of the
belief, long held by this society, that defen-
dants who commit criminal acts that are at-
tributable to a disadvantaged background, or to
emotional and mental problems, may be less
culpable than defendants who have no such
excuse."
109 S. Ct. at 2947 (quoting California v. Brown, 479 U.S.
538, 545 (1987) (O’Connor, J., concurring) ).
It follows from this deep concern for the relia-
bility of the capital sentencing process that the eighth
262. See also Roberts v. Louisiana, 428 U.S. 325, 334
(1976) (plurality opinion) (describing Furman as
setting a requirement that procedures be established
that "safeguard against the arbitrary and capricious
imposition of death sentences"); Woodson, 428 U.S.
at 304 (1976)("the fundamental respect for humanity
underlying the Eighth Amendment requires considera-
tion of the character and record of the individual
offender and the circumstances of the particular
offense as a constitutionally indispensable part of
the process of inflicting the penalty of death")
(citations omitted).
263. See also Eddings, 455 U.S. 104 (1982) (a capital
defendant must be given the right to present any
evidence of his character, psychological makeup, or
background, or any other mitigating circumstance,
that may persuade the jury that he should not suffer
the ultimate sanction of death).
108
amendment will not tolerate the jury’s being prevented
from considering mitigating evidence by counsel’s
ineffectiveness, just as the eighth amendment does not
permit the consideration of mitigating evidence to be
restricted by a statutory sentencing scheme, 7©4 inadequate
jury instructions,?©°> or a trial judge’s refusal to
consider or allow the jury to consider such mitigating
evidence.*©© The effect of Guilbeau’s ineffectiveness was
the same: a death sentence was arbitrarily, capriciously,
and unreliably imposed because the sentencer was prevented
from considering relevant mitigating factors.
Accordingly, as Judge Tate indicated in Milton v.
Procunier, the ineptitude of a defendant’s attorney in
presenting mitigating evidence in the sentencing phase can
be violative of the eighth and fourteenth amendments, even
though counsel’s ineffectiveness does not rise to the
264. See, e.g., Lockett, 438 U.S. at 606-08 (finding
constitutionally infirm an Ohio death penalty statute
not permitting individualized consideration of
mitigating factors); Jurek v. Texas, 428 U.S. 262,
271 (1976) (plurality opinion) ("in order to meet the
requirements of the eighth and fourteenth amendments,
a capital-sentencing system must allow the sentencing
authority to consider mitigating circumstances") ;
Woodson, 428 U.S. at 303 (shortcoming of North
Carolina’s mandatory sentencing statute is that it
does not permit consideration of the character of the
individual defendant); Roberts, 428 U.S. at 333.
(striking down as violative of the eighth amendment a
Louisiana statute limiting mandatory sentence for
first-degree murder to certain categories of killings).
265. See, e.g., Penry, 109 S. Ct. at 2947-52 (setting
aside death sentence and remanding case for resen-
tencing after concluding that while petitioner was
permitted to introduce mitigating evidence of organic
brain damage, retardation, poor impulse control, and
an abused childhood, the jury instructions precluded
the jury from giving effect to that evidence).
266. See Enmund v. Florida, 458 U.S. 782, 830 (1982)
(reversing death sentence for first-degree murder
where, "(ajlthough the state statutory procedures did
not prevent the trial judge from considering any
mitigating circumstances, the trial judge’s view of
the facts, in part rejected by the state Supreme
Court, effectively prevented such consideration") ;
Eddings, 455 U.S. at 104.
109
level of a Strickland violation. 744 F.2d at 1102-07.297
See also Strickland, 466 U.S. at 706 (Brennan, J.,
concurring and dissenting) (citing Woodson and Eddings)
(rejection of ineffective assistance claim should not "be
understood to reflect any diminution in commitment to the
principle that ‘the Eighth Amendment .. . requires
consideration of the character and record of the
individual offender and the circumstances of the
particular offense as an indispensable part of the process
of inflicting the penalty of death’") .268
Under this group of cases, Petitioner is
entitled to a new sentencing hearing because, due to the
ineffectiveness of his counsel in preparing for and
presenting mitigating evidence in the sentencing hearing,
the jury imposed a death sentence without the type of
individualized consideration of mitigating factors and
"reasoned moral response" required by the eighth and
fourteenth amendments and by Article I, Section 16 of the
Louisiana Constitution. See Penry, 109 S. Ct. at 2947-52;
Lockett, 438 U.S. at 604-05 (quoting Franklin v. Lynaugh,
487 S. Ct. 2320, 2333 (1988) (O’Connor, J., concurring) ).
267. In Milton, defense counsel offered no mitigating
evidence in the sentencing phase, prompting a finding
by Judge Tate that counsel had erred. Judge Tate
concluded that the Strickland test for a sixth
amendment violation was not met, however, because he
could find no prejudice, i.e., he could not say that
"the jury probably would not have meted the death
penalty even had [the] mitigating evidence (omitted
from the trial] been presented for its considera-
tion." 744 F.2d at 1104.
268. See also Jacobs v. Wainwright, 469 U.S. 1062, 1063-66
(1984) (Marshall, J., dissenting from denial of
certiorari) (suggesting, where defendant’s counsel
failed to raise Lockett issue on appeal, that the
Constitution would not countenance a situation where
an attorney’s shortcomings take a toll on the life of
a defendant); Songer v. Wainwright, 469 U.S. 1133,
1133-42 (1985) (Brennan, J., dissenting from denial of
certiorari).
110
Counsel’s omissions in the sentencing phase
(detailed in Claim II supra) prevented the jury from
considering mitigating evidence that was indisputably
relevant to its sentencing determination. See, e.g.,
Penry, 109 S. Ct. at 2948, 2952 (jury must be allowed to
consider and express its reaction to defendant’s childhood
abuse by others) ;2°©9 Waterhouse v. State, 522 So. 2d 341,
344 (Fla.), cert. denied sub nom. Dugger v. Waterhouse,
109 S. Ct. 178, and Waterhouse v. Florida, 109 S. Ct. 123
(1988) (evidence of organic brain damage and of defen-
dant’s intoxication at time of offense is relevant) ;
Eddings, 455 U.S. at 115-16 (mental retardation and
emotional disturbance are relevant).279 tThus, even if
they did not constitute a sixth amendment violation,
counsel’s omissions constituted a violation of
Petitioner’s eighth and fourteenth amendment rights, just
as would a statute, like that in Lockett, prohibiting the
jury from considering mitigating circumstances, inadequate
jury instructions, such as those in Penry, or, as in
Eddings, a trial judge’s decision that certain mitigating
circumstances presented should not be considered. See
Eddings, 455 U.S. at 113-15.
269. See also Eddings, 455 U.S. at 115 (mitigating evide-
nce showing turbulent family history and beatings by
father is "particularly relevant"); Waterhouse v.
State, 522 So. 2d at 344 (evidence of severe abuse as
a child was relevant mitigating evidence); Newlon v.
Armontrout, 693 F. Supp. 799, 810 (W.D. Mo. 1988)
("(e]vidence of a turbulent family history is
particularly relevant and must be considered by the
sury.").
270. See also Penry, 109 S. Ct. at 2949; Dutton, 812 F.2d
at 601; Newlon, 693 F. Supp. at 810; Brown v. State,
526 So. 2d 903, 907-08 (Fla.), cert. denied, 109 S.
Ct. 371 (1988); Busby, 538 So. 2d at 173 ("[{p]sychi-
atric mitigating evidence not only can act in mitiga-
tion, it also can significantly weaken the aggra-
vating factors").
1il
CLAIM IV
PETITIONER WAS DENIED HIS SIXTH AND FOURTEENTH
AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL
IN THE PREPARATION AND SUBMISSION OF THE SENTENCE
INVESTIGATION REPORT TO THE LOUISIANA SUPREME COURT.
Under the sixth and fourteenth amendments of the
United States Constitution and Article I, Section 13 of
the Louisiana Constitution a defendant is guaranteed
effective assistance of counsel on his first appeal as of
right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). Here,
counsel failed to provide Petitioner with effective
assistance on appeal because counsel failed to prepare
for, verify, or challenge a report that the Louisiana
Supreme Court relied upon when it determined that
petitioner should die. See, e.g., Ryder v. Morris, 752
F.2d 327, 332 (8th Cir.), cert. denied, 471 U.S. 1126
(1985) (if attorney failed to avail himself of an
opportunity to review sentencing report and develop
rebuttal material, defendant may have received
ineffective assistance of counsel); cf. United States v.
Rone, 743 F.2d 1169, 1173 n.2 (7th Cir. 1984) (if defense
counsel in non-capital case was given an opportunity to
review the report and did not contest inaccuracies, his
performance might fall below minimum standards of profes-
sional competence) .271
A. Counsel’s Representation Was Constit-
utionally Deficient Because He Permitted
A Misleading And Incomplete Sentence
Investigation Report To Be Filed In The
Louisiana Supreme Court.
Rule 905.9.1 of the Louisiana Code of Criminal
Procedure requires that the Louisiana Department of
Corrections prepare a report on each criminal defendant
271. The level of performance expected of counsel here --
where a client’s life is at stake -- should be no
lower than the performance expected of counsel
reviewing a sentencing report to be used by the trial
court in imposing sentence.
112
who has been sentenced to death. The Louisiana Supreme
Court relies on this report when it conducts its mandatory
review of a death sentence.?/2
In preparing the Sentence Report relied upon
here, the Department interviewed Prejean and his rela-
tives. However, as counsel concedes,
I did not discuss with Dalton or his family the
State’s interviews for the Sentence
Investigation Report because I was unaware that
such interviews were conducted.
Guilbeau Aff. ¢ 39. Counsel also failed to direct the
Department to the many other individuals who would have
been eager to discuss matters helpful to Dalton, if only
they had been asked.?73
Once the Sentence Report was completed, counsel
should have familiarized himself with its contents,
attempted to verify the information, and challenged any
inaccuracies. Cf. United States v. Pinkney, 551 F.2d
1241, 1249-50 (D.C. Cir. 1976) (addressing presentencing
report) .274 However, counsel did absolutely nothing to
verify his report’s accuracy or to assure himself that the
Sentence Report discussed the mitigating factors addressed
previously in Claim II; instead, counsel blindly assumed
that the Sentence Report was complete and truthful.
Guilbeau Aff. ¢ 40. In addition, while the applicable
272. As previously indicated, the Louisiana Supreme
Court’s review of death sentences is informed by both
the Sentence Report prepared by the Department of
Corrections and the Capital Report.
273. Stewart Aff. 4 8; Morris Aff. ¢| 25; Deliphose Aff.
q 12; Bryant Aff. ¢ 14. See discussion in Section
A(1) (dad) of Claim II.
274. See also 3 ABA, Standards for the Defense Function,
q 8.1(b) (2d ed. 1980) ("Defense counsel should
present to the court any ground which will assist in
reaching a proper disposition favorable to the
accused. If a presentence report or summary is made
available to the defense lawyer, he or she should
seek to verify the information contained in it and
should be prepared to supplement or challenge it if
necessary.").
Lae
statute permitted counsel to file written objections to
the Sentence Report and demand an evidentiary hearing, La.
Code Crim. Proc. Ann. rule 905.9.1, § 3(c) (West 1984),
counsel did neither in this case.?279°
As a result of counsel’s laissez-faire approach
to the Sentence Report (combined with his inadequate
investigation and preparation of the case), the Sentence
Report upon which the Louisiana Supreme Court relied
omitted or distorted critical information. The Sentence
Report omitted critical evidence that Petitioner was
provoked and shot the state trooper on impulse. 2/76 The
Report also painted a wholly distorted view of Prejean’s
relationship with the aunt who raised him,*’7’ omitted any
reference to Petitioner’s brain damage, and failed to note
275. Counsel objected only to the Capital Report, which
was submitted to the Louisiana Supreme Court along
with the Sentence Report. Prejean v. Blackburn, 743
F.2d at 1096.
276. The Sentence Report acknowledges Dalton’s intense
devotion to Joseph, but does not recite facts
connecting it to the shooting. The Sentence Report
does not explain that, in full view of Dalton,
Officer Cleveland threw Joseph against the patrol
car, pressed his face against the hood, and searched
him with his gun unclipped. Joseph Prejean Aff.
qq 24-26. The Sentence Report also does not mention
that Dalton cried, "I can’t stand it he’s pushing my
brother" before shooting the trooper. Notice of
Inculpatory Statements, La. S. Ct. Record 106.
The Sentence Report also contains no information
about Dalton’s organic brain damage. It does not
explain that defects in Dalton’s frontal and
parietal lobes significantly reduced Dalton’s
ability to control violent impulses. Bear Aff.
qq 11-13. Furthermore, the Sentence Report fails to
relate Dalton’s neurological deficiencies to his
inability to control his overwhelming impulse to
protect Joseph at any cost. Id. 44 17-20. Finally,
the Sentence Report fails to mention the
exacerbating effect of alcohol and sleep deprivation
on Dalton’s already limited impulse control. Id. q 21.
277. The Sentence Report portrays Mrs. Aubrey and her
husband as making a loving home for Dalton, Sentence
Report 3, when in fact Mrs. Aubrey was an alcoholic
who severely abused him. Joseph Prejean Aff.
qq 5-6; Donna Prejean Aff. 4¢ 6-7; Morris Aff.
44 18-19; Rose Prejean Aff. | 6.
114
even the existence of several people who believed
Petitioner’s life had value.2’78 For these reasons,
counsel’s failure to monitor, review, and challenge the
Sentence Report fell well below prevailing professional
standards.
B. Petitioner Was Prejudiced By His
Counsel’s Failures To Prepare Dalton
And His Relatives For The Department
Of Corrections’ Interviews And To File
Written Objections To The Sentence Report.
Because the omitted and distorted information
was critical to showing that Prejean’s sentence was
imposed in error and was disproportionate to his offense,
he was prejudiced by his lawyer’s ineffective assistance.
It is plain from its opinion that the Louisiana Supreme
Court relied upon the Sentence Report in finding that his
death sentence was not excessive. v. ejean, 379
So. 2d 240, 247-48 (La. 1979); see also Prejean v. Black-
burn, 743 F.2d at 1105-06 (Johnson, C.J., dissenting).
Based on the incorrect and incomplete Sentence Report, the
court concluded that there was no meaningful evidence of
mitigating factors, that Prejean could be held responsible
for his actions, and that there was a "probability of
tragic repetition." State v. Prejean, 379 So. 2d 240,
248-49 (La. 1979), cert. denied, 449 U.S. 391 (1980). The
court would not have reached its conclusion had it known
-- and but for counsel’s ineffective assistance, it would
have known -- that (a) Petitioner had been provoked;
(b) Petitioner was a victim of child abuse; and
(c) Petitioner has brain damage. There is thus a
reasonable probability that if counsel had prepared for
and objected to the Sentence Report or sought an eviden-
278. See Bryant Aff. 44 9-11, 13; Stewart Aff. ¢ 7; Powers
Aff. 44 7-9; Morris Aff. 44 5-7; Deliphose Aff.
qq 6, 10.
115
tiary hearing, the Louisiana Supreme Court would have
found the death sentence excessive. See Gregg, 428 U.S.
at 190 (accurate sentencing information is an indispen-
sable prerequisite to a reasoned determination of whether
an individual will live or die) .?79
279. An uncounseled defendant is denied due process if he
is sentenced on the basis of misinformation. owns-
end v. Burke, 334 U.S. 736, 740-41 (1948). It is
axiomatic that accurate sentencing information can
be no less critical to an appellate court’s statutory
review of a death sentence.
116
CLAIM V
THE STATE’S CONTROL OVER EACH ASPECT OF
THE PROCEEDINGS DEPRIVED PETITIONER OF THE
ABSOLUTE IMPARTIALITY N A CA AL CASE.
It is axiomatic that under Article I, Section 16
of the Louisiana Constitution and the due process clause
of the fourteenth amendment to the U.S. Constitution,
Petitioner was guaranteed the right to an impartial trial.
See, e.g., State v. Cage, 337 So. 2d 1123, 1125 (La.
1976); State v. Robertson, 464 So. 2d 760, 764 (La. Ct.
App. 1984), cert. denied, 467 So. 2d 534 (La. 1985).
Indeed, impartiality was absolutely essential here, given
the "special seriousness of the risk of improper
sentencing in a capital case." Turner v. Murray, 476 U.S.
28, 37 (1986). See, e.g., Woodson v. North Carolina, 428
U.S. 280, 305 (1976).
In at least six different instances, however,
the prosecutor or the court acted to undermine or destroy
the impartiality of Petitioner’s capital trial. The State
dominated every aspect of Dalton Prejean’s charging,
trial, and sentencing, and it exercised its power ina
discriminatory fashion, so as to preclude true
impartiality. One such aspect is discussed infra at Claim
VII: the prosecution’s discriminatory use of peremptory
challenges, in direct violation of the Batson rule, to
strike all blacks from Petitioner’s jury. The
possibility of a Batson violation, by itself, mandates
that this case be remanded for a hearing.
Even aside from the Batson violation, a court
should take notice that the unconstitutional, discrim-
inatory use of peremptory challenges was but one of
several steps that the State took that "stacked the deck
against petitioner." Witherspoon v. Illinois, 391 U.S.
510, 523 (1968).
117
(1) The prosecutor arbitrarily charged
Petitioner -- a juvenile at the time with
the mental age of a thirteen-year-old -- as
an adult.
(2) The State’s prosecutor hand picked the
judge whom the prosecutor wished to hear
the case;
(3) The prosecution-picked judge, in granting a
motion for change of venue, arbitrarily
selected predominantly white Ouachita
Parish, which, at that time, had a
notorious recent history of discrimination;
(4) The prosecution-picked judge, in an
apparently unprecedented move, arranged to
keep the case despite the fact that he had
transferred it out of his parish; and
(5) The prosecutor acquired access to materials
in the judge’s files that related to
Petitioner’s trial strategy and issues
central to this case.
The combination of these factors resulted in a proceeding
that was anything but impartial. Consequently, Petitioner
is entitled to a new trial.
The stacking of the deck against Dalton Prejean
began early. Even though Petitioner was only seventeen
when arrested -- and, due to brain damage, had a mental
age of thirteen, Tr. 827 -- the prosecutor arbitrarily
chose to charge him as an adult. In holding that
sentencing a seventeen-year-old to death does not per se
constitute cruel and unusual punishment, the United States
Supreme Court relied in part on the assumption that
statutes allowing for a juvenile to be tried as an adult
"ensure individualized consideration of the maturity and
moral responsibility of . . . 17 year-old offenders
. . . ." Stanford v. Kentucky, 109 S. Ct. 2969, 2978
(1989). But in the instant case, Dalton Prejean was
charged as an adult for a capital offense without any
consideration of Petitioner’s retarded condition and
otherwise apparent immaturity. There were no reviewable
criteria for this decision to charge Dalton as an adult --
"rujnder such a system the opportunity for discrimin-
118
ation" is manifest. Whitus v. Georgia, 385 U.S. 545, 552
(1967).
Excessive prosecutorial discretion in seeking
the death penalty has been held to be a sufficient ground
to strike down a state’s death penalty statute. See
United States ex rel. Silagy v. Peters, 713 F. Supp. 1246,
1258-1260 (C.D. Ill. 1989). In Silagy, which struck down
Illinois’ capital punishment statute, the excessive
discretion rested with the prosecutor’s determination of
whether or not to seek the death penalty, a decision
depending largely, in Illinois, "upon the whim of the
individual prosecutor." Jd. at 1259. Here, the
prosecutor’s discretion was far more comprehensive. 289
The impartiality of Dalton’s trial was further
destroyed when the prosecutor in this case personally
chose Judge Brunson, who had been an Assistant District
Attorney in the prosecutor’s office, to try this case. In
fact, such control of judicial assignments by prosecutors
has been, until recently, the established procedure in
Lafayette parish. 281 No component of due process can be
280. The Louisiana statutory scheme added to the
prosecutor’s power in two respects. First, by
prohibiting guilty pleas, the statute forced
Petitioner to appear unremorseful. See discussion
supra regarding Claim XI. Second, by permitting the
prosecutor to challenge for cause all jurors
unalterably opposed to the death penalty, the
prosecutor obtained a jury more inclined to convict.
See Lockhart v. McCree, 476 U.S. 162, 173 (1986).
These factors further demonstrate the unconscionably
large number of unfair advantages exploited by the
prosecutor to obtain a death sentence in this case.
281. These assertions are partially based on the
stipulation entered into by the Office of the
District Attorney for Lafayette Parish in State v.
Simpson, No. 88-CR-55996 (La. Dist. Ct. Jan. 19,
1989). The Simpson stipulation conceded that in all
criminal cases in the Fifteenth Judicial District
Court, the State, through the District Attorney’s
Office, decides which judge will hear a given case.
Simpson Stipulation at | 4(5). In addition, the
District Attorney’s Office has admitted that it can
have a criminal case assigned to a particular judge
(continued...)
iL
more fundamental than the need for complete separation --
of both function and personnel -- between prosecutor and
court:
A situation in which an official perforce
occupies two practically and seriously
inconsistent positions, one partisan and the
other judicial, necessarily involves a lack of
due process of law in the trial of defendants
charged with crimes before hin.
Tumey v. Ohio, 273 U.S. 510, 534 (1927). Here,
prosecutorial and judicial functions merged as the
prosecutor -- with his partisan interest in having
Petitioner convicted and condemned -- personally chose the
judge to whom he would present his case. The State of
Louisiana has previously admitted that these procedures
violate a defendant’s right to due process under the
federal and Louisiana State Constitutions. 282
After he had been selected by the prosecutor to
try the case, the judge, in ordering a change of venue,
chose Ouachita, a predominantly white parish more likely
to condemn a black defendant. As courts noted around that
time, "(o]pen, flagrant, unsophisticated, purposeful
discrimination against blacks has been the long time
pattern in Ouachita Parish." Ausberry v. City of Monroe,
456 F. Supp. 460, 463 (W.D. La. 1978), appeal dismissed,
616 F.2d 565 (5th Cir. 1980) (quoting Turner v. McKeithen,
490 F.2d 191, 194 (5th Cir. 1973)). Judge Brunson also
made the apparently unheard-of decision to follow the case
from Lafayette to Ouachita Parish despite the fact that,
281.(...continued)
of the Fifteenth Judicial District Court for any
reason, including a prosecutor’s preference. Jd. at
q 4(6).
282. Simpson Stipulation at ¢ 29(b). See also Order,
State v. Simpson, No. 89-KK-0821 (La. Sup. Ct. June
16, 1989) (vacating assignment of case and remanding
for reassignment under a system where the district
attorney’s office does not select the judge) (filed
herewith as Appendix 48).
120
Pe
to remain in the case, he required a temporary appointment
from the Louisiana Supreme Court to the judicial district
to which the case was transferred. Supp. Guilbeau Aff.
qq 4-5.
Finally, the District Attorney’s improper
control over this proceeding appears to have extended
through Petitioner’s trial and beyond. Documents in the
prosecutor’s files that were recently made available to
Petitioner’s counsel indicate that the prosecutor engaged
in ex parte communications with the judge’s chambers
regarding issues central to Petitioner’s trial.
Specifically, the prosecutor has in his files copies of
memoranda prepared for Judge Brunson by prospective
judicial clerks on the admissibility of a juvenile
adjudication in a first-degree murder trial. Duhon Aff.
qq 3-4 and Exh. A; Rodriguez Aff. 44 1-2 and Exh. A.
Because these memoranda were prepared for Judge Brunson
before the judge ruled on a motion by Petitioner’s trial
counsel to suppress Petitioner’s juvenile adjudication,
they suggest that the prosecutor sought to gain an unfair
advantage by acquiring memoranda that the court almost
certainly reviewed prior to rendering a critical
ruling. 283
Similarly, District Attorney Stansbury appears
to have communicated with Judge Brunson’s office regarding
at least one claim raised by Petitioner’s counsel --
namely, that lawyers and doctors were improperly excluded
from the venire here. A document in the District
Attorney’s files indicates that the prosecutor learned of
Petitioner’s jury selection argument from Judge Brunson’s
283. Petitioner’s counsel has asked the District Attorney
to explain how he acquired these memoranda, but to
date, the prosecutor has declined to respond.
Affidavit of Andrea J. Robinson (filed herewith as
Appendix 49) 4q 4-8.
121
chambers and suggests that the prosecutor communicated
further with Judge Brunson’s chambers regarding this
issue. Affidavit of Carmen Rodriguez 44 1-2 and Exh. B.
At the very least, Petitioner is entitled to an
evidentiary hearing to establish whether the prosecutor
through ex parte contacts with the judge’s chambers,
violated Petitioner’s due process rights by acquiring
information about the judge’s analysis of arguments that
Petitioner raised.284
These factors, along with the Batson violation,
establish that the prosecutor in this case had complete |
control over the proceedings from the charging of
Petitioner until the moment he was condemned to die. This
control robbed the proceedings of the impartiality they
might otherwise have had, and to which Petitioner was
absolutely entitled. As the Supreme Court has noted,
"‘ijt is, of course, settled that a State may not entrust
the determination of whether a man is innocent or guilty
to a tribunal ‘organized to convict.’" Witherspoon, 391
U.S. at 521 (citations omitted). Accordingly, "[{ijt
requires but a short step from that principle to hold
. that a State may not entrust the determination of
whether a man should live or die to a tribunal organized
to return a verdict of death." Id. Designed and
manipulated by the prosecutor, the tribunal at issue here
was "organized to condemn," and it did so, depriving
Petitioner of due process of law.
284. Ex parte communication between a prosecutor and a
court such as that described here raises "grave
ethical issues" and "undermines the appearance of
fairness at the proceeding." In re Hancock, 67 Cal.
App. 3d 943, 136 Cal. Rptr. 901, 903 (Ct. App. 4th
Dist. 1977). In Hancock, the court vacated a
sentence where, as here, the prosecutor had selected
and communicated ex parte with the judge. Id. at 902.
122
CLAIM VI
PETITIONER’S SENTENCING INSTRUCTIONS
PROHIBITED THE JURY FROM GIVING FULL
CONSIDERATION TO H NT RE ATION.
The instructions provided during the sentencing
phase of trial prevented the jury from giving full
consideration to the Petitioner’s mental retardation as a
mitigating factor and thereby violated the eighth and
fourteenth amendments of the United States Constitution
and Article I, Section 20 of the Louisiana Constitution.
Pen Ws augh, 109 S. Ct. 2934, 2948, on remand, 882
F.2d 141 (5th Cir. 1989) (remanding to trial court for an
order complying with directions of Supreme Court).
A. The Sentencing Instructions Provided To The
Jury Failed To Permit It To Consider Fully
The Petitioner’s Retardation As A Mitigating
Factor.
i. Due process requires that capital
sentencing juries be permitted to
consider and give full effect to
mitigating evidence of retardation.
Sentencing juries in capital cases must be
allowed to consider fully all evidence of the defendant’s
background and character and the circumstances of the
offense to permit the "individualized assessment of the
appropriateness of the death penalty" that is required in
each case. Penry, 109 S. Ct. at 2947; Hitchcock v.
Dugger, 107 S. Ct. 1821, 1822 (1987); Eddings, 455 U.S. at
110; Lockett v. Ohio, 438 U.S. 586, 604 (1978). Moreover,
sentencing instructions must permit juries to give effect
to the mitigating evidence presented and "say ‘no’ to the
death penalty based on the mitigating force of those
circumstances." Penry v. Lynaugh, 832 F.2d 915, 925 (5th
Cir. 1987) (quoted in Penry, 109 S. Ct. at 2943); accord
Hitchcock, 107 S. Ct. at 1824 (jury must be allowed to
consider nonstatutory mitigating factors).
123
Be
Evidence of retardation is "extraordinarily
germane to the individualized inquiry that the sentencing
jury constitutionally is required to perform." Burger v.
Kemp, 107 S. Ct. 3114, 3139 (1987) (Powell, J., dissent-
ing); see also Jones v. Thigpen, 788 F.2d 1101, 1103 (5th
Cir. 1986), cert. denied, 479 U.S. 1087 (1987) (evidence of
retardation is a "critical matter[{] of mitigation"). As
the Supreme Court has recognized, mitigating evidence of
retardation is relevant for a broad range of reasons
including, but not limited to, the defendant’s state of
mind at the time of the crime. Retarded individuals, like
children, are less culpable than normal adults because
they are "less able than .. . normal adult[{s] to control
[their] impulses or to evaluate the consequences of
[their] conduct." Penry, 109 S. Ct. at 2949. See also
Eddings, 455 U.S. at 115 n.11. Most importantly, mental
retardation reduces a defendant’s moral culpability even
if he commits a crime deliberately. Penry, 109 S. Ct. at
2949 (death sentence set aside where court could not "be
sure" that sentencing statute permitted jury to consider
fully and give effect to mitigating evidence of
defendant’s mental retardation although statute required
jury to consider whether defendant deliberately committed
the crime); see also Eddings, 455 U.S. at 116 (even if it
"does not suggest an absence of responsibility for the
crime of murder, .. . mental and emotional development
[must] be duly considered in sentencing").
Consistent with these cases, the Louisiana
Supreme Court has recognized the importance of allowing
full consideration of mitigating evidence of mental
defects. State v. English, 367 So. 2d 815, 819 (La.
1979); Ward v. Butler, No. 89-KD-2092 (Sept. 5,
1989) (setting aside order of execution pending a
124
determination of whether Louisiana’s statutory
instructions regarding mitigating evidence of mental
defects ran afoul of the Penry case).
Zs The sentencing instructions here failed
to permit the jury to consider fully
retardation as a mitigating factor.
The instructions provided to the jury that
sentenced Prejean to death could well have prevented it
from fully considering the mitigating effect of his
retardation. The trial court’s jury instructions on
mitigation consisted of a list of the statutory mitigating
circumstances enumerated in Article 905.5 of the Louisiana
Code of Criminal Procedure and included the following:
(b) The offense was committed while the
offender was under the influence of extreme
mental or emotional disturbance; ..
(e) At the time of the offense the
Capacity of the offender to appreciate the
criminality of his conduct or to conform his
conduct to the requirements of law was impaired
as a result of mental disease or defect or
intoxication; ...
Tr. 858 (emphasis added). The jury was also instructed to
consider "[{a]ny other relevant mitigating circumstance."
Id. (emphasis added) .
These instructions would have led a reasonable
jury to conclude that Dalton’s mental retardation was
relevant only to the extent that it constituted “extreme
emotional disturbance" or impaired his ability to
appreciate the criminality of his conduct or to conform
his conduct to the requirements of law. In other words,
to the extent that Dalton’s mental retardation did not
bear on his state of mind at the time of the shooting, the
instructions appeared to characterize that retardation as
irrelevant. Thus, as in Penry, the instructions provided
to the sentencing jury here could well have led a
reasonable juror to believe that the significance of
Loo
Prejean’s mental retardation was limited to its effect on
his mental state at the time of the shooting. Conse-
quently, if the jury found that Prejean was retarded but
that the shooting of Officer Cleveland was deliberate, it
would have believed itself unable "to say ‘no’ to the
death penalty" on the basis of retardation. Penry v.
Lynaugh, 832 F.2d at 925 (quoted in Penry, 109 S. Ct. at
2943) .285
The District Attorney’s closing argument
exacerbated the prejudicial effect of this instruction.
The District Attorney argued that the death penalty was
appropriate, even given Petitioner’s retardation, because
Prejean sufficiently understood what he was doing when he
put "two slugs into the state trooper ... [b]Joth good
hits." Tr. 843. Indeed, the District Attorney’s argument
in favor of the death penalty focused almost entirely on
how Prejean’s actions on the night of the shooting
revealed "a rational functioning mind." Tr. 842; cf.
English, 367 So. 2d at 818-819. Thus, if the jury
instructions themselves left any doubt that "other
285. The jury’s instruction to consider "[{a]ny other rele-
vant mitigating circumstance" does not distinguish
this case from Penry. Of the statutory mitigating
factors that the jury received, two of them dealt
expressly with mental defects and prescribed narrow,
precise circumstances when mental retardation was
relevant in mitigation. The specificity of these
provisions would have led reasonable jurors -- laymen --
to conclude that mental retardation was relevant only
to the extent that it fell within the narrow scope of
these instructions. The "catchall" instruction to
consider “any other relevant mitigating circumstance"
cannot reasonably be read to amend the more specific
instruction on retardation so as to persuade the jury
to use any evidence of retardation in mitigation.
See State v. English, 367 So. 2d at 818-19 (Death
sentence was overturned where the jury may have been
led to believe that "mental disease or defect" under
Art. 905.5(e) included only evidence of legal
insanity. The court did not even mention the
instruction to consider "other relevant"
circumstances. )
126
relevant mitigating circumstances" did not include
retardation, the prosecution put such doubts to rest.
Against the backdrop of the District Attorney’s
argument, the sentencing instructions would have led a
reasonable jury to conclude that, so long as Petitioner
committed the shooting deliberately, his retardation
ceased to be relevant as a mitigating factor. The jury
therefore could not consider the extent to which
Petitioner’s retardation contributed to his difficult and
unhappy childhood. Removing these considerations from the
sentencing jury’s province made the "individualized |
assessment of the appropriateness of the death penalty" an
impossibility. Penry, 109 S. Ct. at 2947.286
B. The Sentencing Instructions Provided
To The Petitioner’s Jury Were Highly
Prejudicial.
As the foregoing demonstrates, the sentencing
instructions were extremely prejudicial. The defense
introduced evidence through Dr. William Hawkins that
Prejean was borderline mentally retarded. Tr. 827-28.
Dr. Hawkins testified that Petitioner had an I.Q. of 76
and a mental age of 13 years and 6 months. Id. Dr.
Hawkins also testified, however, that Dalton knew the
difference between right and wrong and was capable of
carrying out a plan. Tr. 830-31; cf. English, 367 So. 2d
at 819.
A reasonable jury could have concluded, on the
basis of Dr. Hawkins’ testimony, that Prejean’s
retardation did not rise to the level of an “extreme
mental disturbance," and that his retardation did not
impair his ability to appreciate the criminality of his
286. This "individual assessment" was critical to the
Court’s decision that executions of retarded
offenders is constitutional. See Penry, 109 S. Ct.
at 2947-52.
127
conduct or to conform his conduct to the standards of
society. Thus, if the jury followed the obvious
implications of the sentencing instructions, it would have
concluded that Prejean’s retardation counted for nothing
in mitigation.
The prejudice arising from these unconstitution-
al instructions is easily shown. Had the jury known that
it could give weight to the fact that Petitioner was a
mentally retarded 17-year old at the time of the crime, it
would have concluded what should be obvious in a civilized
society: mentally retarded juveniles are not fit objects
for retribution. Petitioner’s retardation may well have
been the most compelling fact that counsel tried to put
before the jury. Under Penry and English, the jury’s
actual and/or perceived inability to consider this fact
requires that the death sentence be vacated.
128
CLAIM Vil
BATSON v. KENTUCKY APPLIES TO PETITIONER’S
CASE AND REQUIRES THAT HE BE GRANTED A HEARING
TO DETERMINE WHETHER BLACKS WERE IMPROPERLY
EXCLUD FROM THE JURY THAT SENTENC HIM TO DEATH.
When the District Attorney in this case
deliberately used his peremptory challenges to obtain an
all-white jury to condemn Petitioner, he violated both
Petitioner’s equal protection rights under Batson v.
Kentucky, 476 U.S. 79 (1986) and the absolute prohibition
against race discrimination in Article 1, Section 3 of the
Louisiana Constitution of 1974.28’ The prosecutor’s
discriminatory use of his challenges created an
intolerable risk that racial bias would play a role in the
sentencing of this black defendant convicted of killing a
white victim. This constitutional violation also
destroyed the reliability of the jury’s decision as a
reflection of the community’s conscience. See Caldwell v.
287.
La. Const. art. I, §3 states:
No person shall be denied the equal protection
of the laws. No law shall discriminate against
a person because of race or religious ideas,
beliefs, or affiliations. No law shall
arbitrarily, capriciously or unreasonably
discriminate against a person because of birth,
age, sex, culture, physical condition, or
political ideas or affiliations. Slavery and
involuntary servitude are prohibited, except in
the latter case as punishment for crime.
La. Constitution of 1974, art. 1, §3. The authors of
that section suggested that the State constitution be
construed more broadly than the fourteenth amendment.
See State of Louisiana Constitutional Convention of
1973 Verbatim Transcripts Aug. 30, 1973 at 3 ("The
authors believe that there is absolutely no basis for
discrimination of any sort on the basis of, on
account of race .. . .") (emphasis added); see also
State v. Eames, 365 So. 2d 1361, 1369 (La.
1979) (Dennis, J., concurring) ("by absolutely
prohibiting racially discriminatory state action, our
state declaration of the right to individual dignity
goes beyond the decisional law construing the
fourteenth amendment... .")
129
Mississippi, 472 U.S. 320, 333 (1985). Petitioner must
therefore be resentenced in a constitutional manner. 288
A. Petitioner Has Alleged And Is Entitled
To An Evidentiary Hearing To Prove A
Batson Violation.
It is undisputed that the District Attorney used
his peremptory challenges to strike all four blacks from
the petit jury. At the close of jury selection, Petition-
er’s counsel objected to the jury on the ground that the
District Attorney had used his peremptory challenges ina
racially discriminatory manner. Tr. 468. The Court
rejected this challenge, Tr. 477, on the ground that
Petitioner had not met his burden of showing that the
District Attorney had engaged in systematic discrimination
in a wide range of cases as was then required under Swain
v. Alabama, 380 U.S. 202 (1965) .289
While Petitioner’s petition for certiorari from
the denial of his federal habeas corpus petition was
pending, the Supreme Court decided Batson v. Kentucky, 476
U.S. 79 (1986). In Batson, the Supreme Court overruled
Swain and held that a defendant could show a violation of
his rights under the equal protection clause based solely
on the prosecutor’s discriminatory use of peremptory
288. Consistent with Allen v. Hardy, 478 U.S. 255 (1986),
Petitioner does not seek to reopen his conviction on
this ground, only his sentence.
289. Because the venue of the trial had been changed
from Lafayette to Monroe, Guilbeau did not have
available the court records he needed to make
the necessary showing of systematic exclusion of
blacks from juries. Tr. 474-75. The court did
not grant Guilbeau any time, however, in which
to review the appropriate records and develop
his prima facie case. Justice Calogero,
concurring with the Louisiana Supreme Court’s
affirmance of Petitioner’s conviction and
sentence, suggested that Petitioner was entitled
to make a showing that his equal protection
rights were violated. See State v. Prejean, 379
So. 2d at 249.
130
challenges in the defendant’s own case.*99 once a
defendant has established a prima facie case, the burden
shifts to the prosecutor to show "a neutral explanation"
that is "clear and reasonably specific." Batson, 476
U.S. at 98 & n. 20.291
Under Batson, Petitioner has made out an ample
prima facie case. Petitioner is "a member of a cognizable
racial group," 476 U.S. at 96, while the prosecutor’s use
of four peremptory challenges to create an all-white jury
does indeed "raise an inference that the prosecutor used
that practice to exclude the veniremen from the petit jury
290. The Batson court specifically rejected the Swain
standard as a "crippling burden of proof." Id. at
92. Seven years prior to Batson, three justices of
the Louisiana Supreme Court had termed the burden of
proof adopted in Swain "too heavy to allow a
defendant to enforce his right to equal protection
except in the rarest of cases." State v. Eames, 365
So. 2d 1361, 1369 (La. 1979) (Dennis, J., concurring).
That Louisiana has a strong public policy against the
discriminatory use of challenges is made clear by
article 795(B) of the Louisiana Code of Criminal
Procedure, adopted in 1976 by the Louisiana
legislature, which states: "A peremptory challenge
by the state shall not be based solely on the race of
the juror." La. Code Crim. Proc. Ann. art.
795(B) (West Supp. 1989).
291. The Louisiana courts follow Batson’s rule and allow
defendants to establish a prima facie case of a
violation without a showing of systematic exclusion
of blacks. See, e.g., State v. Mims, 505 So. 2d 747,
751 (La. Ct. App. 1987) (remanding for evidentiary
hearing and holding that defendant made a prima facie
showing of racial discrimination when three of the
four blacks in the venire were excused by the
prosecutor peremptorily while the fourth was excused
by the court); State v. Williams, 516 So. 2d 150, 153
(La. Ct. App. 1987) (remanding for evidentiary hearing
and holding that defendant made out a prima facie
case under Batson when state peremptorily excluded
three of five black venirepersons from the jury of a
black defendant accused of raping a white victin,
fourth black was excluded for cause, and fifth was
accepted); State v. Johnson, 511 So. 2d 873 (La. Ct.
App. 1987) (remanding for a hearing to allow the state
an opportunity to explain the exclusion of a black
juror during jury selection). The courts have also
relied upon the U.S. Supreme Court for guidance
regarding the retroactive application of the Batson
rule. See, e.g., State v. Mims, 505 So. 2d 747, 750-
51 (La. Ct. App. 1987).
Lad
on account of their race." d.292 petitioner is
therefore entitled to a hearing to establish a violation
of his equal protection rights under Batson. See, e.q.,
United States v. Clemons, 843 F.2d 741 (3d Cir.
1988) (challenge to two black potential jurors made out
prima facie case); United States v. Cloyd, 819 F.2d 836
(8th Cir. 1987) (challenge to sole black potential juror
made out prima facie case); Jones v. Butler, No. 89-KD-
2020 (La. 1989) (remanding for evidentiary hearing where
State used peremptory challenges to exclude three black
potential jurors); Stanley v. State, 542 A.2d 1267 (Md.
1988) (same) (citing cases).
B Batson Applies Retroactively To Juries’
Capital Sentencing Decisions.
1. Retroactivity under Teaque v. Lane.
The U.S. Supreme Court has considered the retro-
active applicability of Batson to a jury’s factual deter-
mination of guilt or innocence, but not to a jury’s
subjective decision on behalf of the community to impose a
death sentence. This term, in Teaque v. Lane, 109 S. Ct.
1060 (1989), the Supreme Court created a new test for
292. Importantly, the four stricken black venirepersons --
Mr. Cole, Mr. Burks, Mr. Watson and Ms. Gipson --
possessed the same essential qualities as the white
venirepersons who were ultimately chosen by the
State to serve on the petit jury. Like the white
jurors, each of the black venirepersons responded to
questions of defense counsel by stating that he would
accept alcohol and youth as mitigating factors, hold
the State to its burden of proof, draw no negative
inferences from the defendant’s failure to testify,
return individualized verdicts, and be fair and
impartial. Tr. 259-65, 372-78, 400-03, 456-60.
Further, none of the black venirepersons who were
asked had friends or relatives in law enforcement or
in Lafayette Parish. Tr. 261-62, 373-74, 401.
Finally, none of the venirepersons indicated an
inability to impose the death penalty. Tr. 244-47,
368-69, 399, 455. Of the black jurors peremptorily
struck, Stansbury singled out only Gipson for
specific questions. Tr. 454-56. She later indicated
that the Petitioner’s race would be irrelevant to her
duties as a juror. Tr. 457.
132
retroactivity that, correctly applied, requires applica-
tion of Batson to jury capital sentencing decisions on
collateral review.293
Under Teague, which was not a capital case, a
new constitutional rule of criminal procedure will be
retroactively applied on collateral review if the rule
either: (1) places certain kinds of private individual
conduct "beyond the power of the criminal law-making
authority to proscribe," id. at 1075 (quoting MacKey v.
United States, 401 U.S. 667, 692 (1971) (Harlan, J.); or
(2) is one "without which the likelihood of an accurate
conviction is seriously diminished." Id. at 1077.
In Penry v. Lynaugh, 109 S. Ct. 2934 (1989), the
Supreme Court held that Teaque’s analysis of retroactivity
applies to the collateral review of capital sentences.
Id. at 2945. The Penry court recognized, however, that
the Teaque analysis should be flexibly construed in that
context. Id. at 4965 (first prong of Teague retroactivity
test covers "not only rules forbidding criminal punishment
of certain primary conduct but also rules prohibiting a
certain category of punishment [i.e., a death sentence]
for a class of defendants because of their status or
offense").
Teagque’s concern for "the likely accuracy of
convictions" plainly finds its logical capital sentencing
analogue in the pervasive concern for the reliability of
the capital sentencing process. “74 Indeed, because of
293. Some judges had expressed the view that Batson should
be given full retroactive application to even non-
capital cases under collateral attack. See, e.g.,
Caldwell v. State, 517 So. 2d 1360, 1361-64 (Miss.
1987) (Robertson and Sullivan, JJ., dissenting). Of
course, the case for retroactivity is substantially
magnified where a defendant’s life is at stake.
294. Capital sentencing decisions are in some sense
analogous to the "accurate convictions" at the heart
(continued...)
Los
the irrevocable consequences of imposing a death sentence,
the effect of a constitutional violation on a capital
jury’s decision should be subjected to even greater
scrutiny in determining whether retroactive application is
appropriate. Cf. Woodson v. North Carolina, 428 U.S. 280,
305 (1976) (Because of the "qualitative difference"
between the death penalty and a sentence of imprisonment,
however long, "there is a corresponding difference in the
need for reliability in the determination that death is
the appropriate punishment in a specific case"). See also
State v. Myles, 389 So. 2d 12, 30 (La. 1980).29° Thus,
just as new procedures that safeguard the accuracy of
convictions are applied retroactively under Teague, so
must new procedures be applied retroactively if they
promote the reliability of capital sentencing decisions.
294.(...-continued)
of the second Teague exception. See, e€.qd.,
=
Bullington v. Missouri, 451 U.S. 430, 438 (1981)
(because the sentencing proceeding at petitioner’s
first trial was like the trial on the question of
guilt or innocence, the protection afforded by the
double jeopardy clause to one acquitted of a crime
applied to one sentenced to life imprisonment after a
capital sentencing hearing.)
295. The compelling need for reliability in the capital
sentencing process has moved the U.S. Supreme Court
to hold that more stringent procedural safeguards
apply in capital cases than in others. See, e.gq.,
Caldwell v. Mississippi, 472 U.S. 320, 329-30, on
emand, 481 So. 2d 850 (Miss. 1984) (reversing death
sentence where sentencer was told that its decision
would be automatically reviewed); Eddings v.
Oklahoma, 455 U.S. 104, 114 (1982) (sentencer may not
refuse to consider, as a matter of law, relevant
mitigating evidence); Beck v. Alabama, 447 U.S. 625,
638 (1980) (jury must be allowed to hear lesser
included offense instructions); Lockett v. Ohio, 438
U.S. 586, 604-05 (1978) (jury must be allowed to
consider mitigating evidence); Gardner v. Florida,
430 U.S. 349, 357-62 (1977) (plurality opinion) (sen-
tence may not be based on information which defendant
had no opportunity to deny or explain).
134
2. Batson promotes the reliability of
capital sentencing determinations
by curtailing racially discriminatory
jury selection.
There are at least two obvious ways in which the
prosecutor’s decision deliberately to select an all-white
jury here, in violation of Batson, destroyed the
reliability of the jury’s sentencing determination.
The first pernicious impact of the prosecutor’s
decision was the one identified in Batson: the
intolerable risk that racial bias affected the jury’s
subjective decision here -- whether to impose a death
sentence. 476 U.S. at 86 & n.8. Racially biased jury
selection procedures introduce an arbitrary element into
the capital sentencing decision by increasing the
probability that a decision will be based on racial
prejudice rather than the "particularized circumstances of
the crime and the defendant." Greqg v. Georgia, 428 U.S.
153, 199 (1976) (plurality opinion). The risk is
alarmingly great in a capital case because of the
extraordinary discretion that a capital jury must
exercise:
In a capital sentencing proceeding before a
jury, the jury is called upon to make a
highly subjective, unique, individualized
judgment regarding the punishment that a
particular person deserves.
* * *
Because of the range of discretion entrust-
ed to a jury in a capital sentencing hear-
ing, there is a unique opportunity for ra-
cial prejudice to operate but remain unde-
tected.
Turner v. Murray, 476 U.S. 28, 33-35 (1986).°9© Given
296. This enormous discretion distinguishes sentencing
decisions from a jury’s factual determination of
guilt or innocence, as to which Batson does not apply
retroactively on collateral review under Allen v.
Hardy, 478 U.S. 255 (1986). It is plausible that, in
this case, a juror could set aside racial bias in
finding facts. It is not plausible that a biased
(continued...)
135
that discretion, a biased juror may be unable to evaluate
properly aggravating and mitigating circumstances, or the
juror may be affected by a fear of blacks.*97 Id. at 35.
As Justice White further noted in Turner, “there is some
risk of racial prejudice influencing a jury whenever there
is a crime involving interracial violence." Id. at 36
n.8.
Furthermore, the very process of excluding
blacks -- witnessed by the whole venire -- stigmatizes
them as unfit to pass judgment. It acts as "a stimulant
to that race prejudice which is an impediment to securing)
. . equal justice." Batson, 476 U.S. at 88 (quoting
Strauder v. West Virginia, 100 U.S. 303, 308 (1880)). The
selection of all-white juries also fosters an "us against
them" mentality and draws upon whatever racial tensions
are present in the community.
The second destructive effect of the
prosecutor’s Batson violation was that it sabotaged the
constitutional goal that the sentencing jury represent, as
accurately as possible, the conscience of the community in
deliberating on defendant’s fate. dwe vy.
Mississippi, 472 U.S. at 333; Witherspoon v. Illinois, 391
U.S. 510, 519-20 (1968). By definition, a sentencing jury
296.(...continued)
juror could have set aside bias in deciding what
weight to give to the mitigating circumstances pre-
sented by a black, mentally retarded, juvenile of-
fender.
297. A prejudiced juror might, therefore, impermissibly
have treated Petitioner’s mental retardation as an
aggravating rather than a mitigating factor, for
example. Indeed, in a recent panel discussion
sponsored by the ABA, Supreme Court Justice Antonin
Scalia "suggested that an all-white jury that is
allowed to consider the accused’s poverty, upbringing
or lack of education might sympathize with a white
defendant. ‘It’s much easier to sympathize and
understand the difficulties of someone from your same
background than someone who is quite different.’"
Too Tender Mercies, A.B.A. J. Oct. 1989 at 41
(emphasis added).
136
cannot reliably reflect the moral judgment of the whole
community if a significant portion of that community has
been deliberately excluded for discriminatory reasons. A
prosecutor’s fashioning of an all-white jury intentionally
"compromis(es] the representative quality of the jury."
Batson, 476 U.S. at 86 n.8. Here, due to the District
Attorney’s discriminatory actions, the sentencing decision
became the judgment of the white sub-community on a black
defendant, not the judgment of the community as a whole.
Moreover, the District Attorney’s discriminatory
acts compromised the quality of the jury’s deliberations.
The unlawful exclusion of any segment of the community
"den{ies] criminal defendants the benefit of the common
sense of the community." Lockhart v. McCree, 476 U.S.
162, 174-75 (1986). As the lead opinion explained in
Peters v. Kiff, 407 U.S. 493, 503 (1972):
When any large and identifiable segment of
the community is excluded from jury ser-
vice, the effect is to remove from the jury
room qualities of human nature and varie-
ties of human experience the range of which
is unknown and perhaps unknowable. It is
not necessary to assume that the excluded
group will consistently vote as a class in
order to conclude, as we do, that its ex-
clusion deprives the jury of a perspective
on human events that may have unsuspected
importance in any case that may be present-
ed.
Peters was a non-capital case. The insidious effect of
discrimination is immeasurably magnified by the discretion
given to capital sentencing juries.298
A recent Supreme Court decision illustrates how
the prosecutor’s conduct eviscerated the reliability of
298. There can be no doubt that Louisiana capital
sentencing juries exercise the wide discretion that
Turner acknowledged renders decision-making
particularly vulnerable to the influence of racial
bias. The jury has absolute discretion to recommend
death once a single statutory aggravating factor has
been proven. La. Code Crim. Proc. Ann. art. 905.3
(West 1984). The trial judge has no authority to
alter the jury’s recommendation. Id. at art. 905.8.
Los
the jury’s sentencing decision here. In Penry, 109 S. Ct.
at 2958, Justice O’Connor cast the deciding vote in favor
of the proposition that execution of mentally retarded
offenders is not per se cruel and unusual punishment
because she presupposed that "an individualized
determination of whether ’death is the appropriate
punishment’ can be made in each particular case." Justice
O’Connor thus relied on the jury’s ability to separate the
cases where a mentally retarded offender should be held
morally responsible for his actions from the (probably
larger number of) cases where he should not. The
fundamental assumptions that underlie the capital
sentencing system thus disintegrate when the prosecutor so
obtains "a tribunal organized to return a verdict of
death."299 Witherspoon, 391 U.S. at 521.3090
Bs The Supreme Court’s pre-Teaque
decisions further demonstrate why
Batson must be applied retroactively
to juries’ capital sentencing decisions.
The Court’s pre-Teague decisions also compel
retroactive application of Batson to Petitioner’s claim.
The most important decision is Witherspoon v. Illinois,
391 U.S. 510 (1968). There, the Court held that veniremen
299. Because the prosecutor’s misconduct undermined the
reliability of the jury’s sentencing determination,
his violation of Batson was also a violation of
Petitioner’s eighth amendment right not to suffer
cruel and unusual punishment. We are not aware of
any case that failed to give full retroactive
application to a decision defining a defendant’s
rights under the eighth amendment.
300. The prosecutor’s comprehensive manipulation of the
entire trial-sentencing process, see discussion
supra regarding Claim V, provides additional
justification for the retroactive application of
Batson. In the context of this manipulation, the
putative Batson violation makes the jury’s sentence
even more questionable. In light of the
extraordinary reliability demanded of a death
sentence, Woodson, 428 U.S. at 305, Batson must be
applied retroactively at least in this special case.
138
could not be excluded from juries in capital cases "simply
because they voiced general objections to the death
penalty or expressed conscientious or religious scruples
against its infliction." Id. at 522. Because the exclu-
sion of such veniremen "necessarily undermined ’the very
integrity of the .. . process’ that decided the petition-
er’s fate" and produced the death verdict, id. at 523 n.22
(quoting Linkletter, 381 U.S. at 639), the Court held that
its decision applied retroactively to cases on both direct
and collateral review. Cf. Songer v. Wainwright, 769 F.2d
1488, 1489 (11th Cir. 1985) (en banc), cert. denied, 481
U.S. 1041 (1987) (applying retroactively Lockett v. Ohio,
438 U.S. 586 (1978)).
The Supreme Court’s earlier noncapital retro-
activity decisions also mandate full retroactivity here.
If a decision finding a constitutional violation "raises
serious questions about the accuracy of guilty verdicts in
past trials," Hankerson v. North Carolina, 432 U.S. 233,
241 (1977) (quoting Williams v. United States, 401 U.S.
646, 653 (1971)), or “goes to the heart of the truth
finding function, [it has been] consistently held to be
retroactive." Solem v. Stumes, 465 U.S. 638, 645 (1984).
A Batson violation undeniably "raises serious questions"
about the reliability of a jury’s decision to impose the
death penalty. By injecting racial bias into the
sentencing process and excluding a significant portion of
the community, a Batson violation "goes to the heart" of
the reliability of the capital sentencing function.
In Petitioner’s case, the prosecutor used his
peremptory challenges to exclude all four black veniremen
from the petit jury. As a result, Petitioner, a black
youth, was sentenced to death by an all-white jury. To
ensure that the process by which he was sentenced was
Lae
sufficiently reliable, Teague demands that Petitioner be
given the opportunity to establish that under Batson the
selection of his jury violated the equal protection clause
and Article I, Section 3 of the Louisiana Constitution.
140
CLAIM VIII
PETITIONER IS ENTITLED TO A HEARING
TO DETERMINE WHETHER HIS SIXTH
AMENDMENT RIGHT TO A FAIR TRIAL WAS
VIOLATED BY THE PROSECUTOR’S USE OF
C LY MOTIV R ORY C NGES.
The State’s deliberate use of peremptory
challenges to exclude all blacks from the jury in this
racially-charged case violated not only the equal
protection clause under Batson, but also Petitioner’s
right to an impartial jury under the sixth amendment and
Article 1, Section 16 of the Louisiana Constitution.
Indeed, the U.S. Supreme Court has granted certiorari in
Holland v. Illinois, No. 88-5050 (U.S. Feb. 27, 1989), to
decide "whether the State’s use of peremptory challenges
to remove black prospective jurors on grounds of race
violates the Sixth Amendment right to trial by jury."
Petition for certiorari at 1. The granting of certiorari
in Holland is the inevitable result of the now numerous
cases holding that the State cannot use peremptory
challenges to accomplish what it could not do by statute:
exclude blacks from petit juries because of their race or
Simply because the State deems all-white juries to be
desirable in difficult cases where the defendant is black.
see, e.g., Roman v. Abrams, 822 F.2d 214 (2d Cir. 1987),
- denied, 109 S. Ct. 1311 (1989); Booker v. Jabe, 801
F.2d 871 (6th Cir. 1986), cert. denied, 479 U.S. 1046
Q
:
ct
(1987); Fields v. People, 732 P.2d 1145, 1155 (Colo.
1987); Seubert v. State, 749 S.W.2d 585, 588 (Tex. Ct.
App. 1988), review granted, S.W.2a (Tex. Feb.
22, 1989).
The constitutional underpinnings of Petitioner’s
claim are readily shown. To be constitutionally adequate,
a petit jury must "provide a fair possibility for
obtaining a representative cross-section of the
141
community." Williams v. Florida, 399 U.S. 78, 100 (1970).
See, e.g., Duren v. Missouri, 439 U.S. 357, 358-59 (1979);
Taylor v. Louisiana, 419 U.S. 522, 533 (1975). Even ina
non-capital case, the "fair-cross section rule," Taylor,
419 U.S. at 533, is of paramount importance because the
"counterbalancing of various biases is critical to the
accurate application of the common sense of the community
to the facts of any given case." Ballew v. Georgia, 435
U.S. 223, 234 (1978).
Under the sixth amendment, the State therefore
may not exclude cognizable groups from jury service.
Taylor and Duren dealt with the exclusion of women.
Blacks are, of course, a well-defined group, e.g., Peters
v. Kiff, 407 U.S. 493, 503 (1972), whose exclusion
constitutes an obvious breach of the rule.
The rule against deliberately excluding blacks
applies to the petit jury no less than to the selection of
the venire. E.q., McCray v. Abrams, 750 F.2d 1113, 1128-
29 (2d Cir. 1984), vacated and remanded, 478 U.S. 1001
(1986).391 «It certainly makes no sense to allow the State
to circumvent the fair cross-section rule by waiting until
the peremptory challenge stage to create, intentionally,
an all-white jury. The Supreme Court has itself applied
the sixth amendment to the petit jury in determining that
a five-person jury was too small to comply with the fair
cross-section rule.392 Ballew v. Georgia, 435 U.S. 223
301. McCray was remanded in light of Batson. The Second
Circuit reinstated its sixth amendment analysis in
Roman v. Abrams, 822 F.2d 214 (2d Cir. 1987), cert.
denied, 109 S. Ct. 1311 (1989).
302. Petitioner is not making the impracticable argument
that his jury should have had any particular racial
makeup. As the cases cited in Claim VII, supra,
establish, the violation lies in the State’s
affirmative actions to exclude blacks, thereby
deliberately rendering the jury less representative
on racial grounds. See Teague v. Lane, 109 S. Ct.
(continued...)
142
(1978). Moreover, the sixth amendment speaks of an
"impartial jury," while Section 16 of the Louisiana
Declaration of Rights mandates an "impartial trial."
These propositions are obvious and straight-
forward. Since 1978, the courts have concluded that
discriminatory use of peremptory challenges deprives the
defendant of an impartial trial by jury under either the
sixth amendment,293 state constitutional provisions
comparable to Section 16 of the Louisiana Declaration of
Rights, 2794 or both.2795 Where courts have refused to find.
a sixth amendment violation, they have often placed |
significant or complete reliance on the Supreme Court’s
equal protection analysis in Swain v. Alabama, 380 U.S.
202 (1965), which held that unconstitutional discrimina-
tion could not be shown through a prosecutor’s actions in
a single case.39© of course, Swain was overruled in
Batson, so that these contrary decisions have lost their
302.(...continued)
1060, 1079 n.1 (1989) (Stevens, J., concurring) ;
Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985), vacated
and remanded, 478 U.S. 1001, aff’d on reconsidera-
tion, 801 F.2d 871 (6th Cir. 1986), cert. denied, 479
U.S. 1046 (1987). Cf. Lockhart v. McCree, 476 U.S.
162 (1986) (holding that petit juries are not
required to have any particular makeup).
303. See Roman v. Abrams, 822 F.2d 214 (2d Cir. 1987),
cert. denied, 109 S. Ct. 1311 (1989); Booker v. Jabe,
801 F.2d 871 (6th Cir. 1986), cert. denied, 479 U.S.
1046 (1987); Seubert v. State, 749 S.W.2d 585, 588
(Tex. Ct. App. 1988), review granted, S.W.2d
(Tex. Feb. 22, 1989).
304. See State v. Gilmore, 511 A.2d 1150, 1160-61 (N.J.
1986), cert. denied, 478 U.S. 1022 (1986); Riley v.
State, 496 A.2d 997, 1012 (Del. 1985), cert. denied,
478 U.S. 1022 (1986); State v. Neil, 457 So. 2d 481,
486 (Fla. 1984); Commonwealth v. Soares, 387 N.E.2d
499, 515 (Mass.), cert. denied, 444 U.S. 881 (1979).
305. See Fields v. People, 732 P.2d 1145, 1155 (Colo.
1987); People v. Wheeler, 583 P.2d 748, 761-62 (Cal.
1978).
306. See United States v. Leslie, 783 F.2d 541 (5th Cir.
1986) (en banc), vacated and remanded, 479 U.S. 1074,
on rehearing, 813 F.2d 658 (5th Cir. 1987); United
States v. Whitfield, 715 F.2d 145 (4th Cir. 1983).
143
vitality. Now, state courts have begun to hold that
Batson requires a decision that the deliberate exclusion
of blacks also violates the sixth amendment. See Fields
v. People, 732 P.2d 1145, 1154-55 (Colo. 1987); Seubert v.
State, 749 S.W.2d 585, 588 (Tex. Ct. App. 1988).
While the fair cross-section rule is critical to
accurate jury decisions in any case, Ballew v. Georgia,
435 U.S. at 240-41, it is an absolute prerequisite to a
competent decision by a jury to sentence a defendant to
death. As noted in the previous section, the sole
function of the sentencing jury is to express the
conscience of the community in deciding whether a capital
defendant (here, a mentally-retarded, brain-damaged
juvenile offender) should live or die. See Caldwell v.
Mississippi, 472 U.S. 320, 333 (1985). The sentencing
jury successfully fulfills its awesome responsibility only
if it reflects the conscience of the whole community. A
petit jury deliberately made unrepresentative cannot by
definition carry out its function.
Moreover, because the sentencing jury makes "a
highly subjective, ‘unique, individualized judgment
regarding the punishment that a particular person
deserves,’" Turner v. Murray, 476 U.S. 28, 33 (1986)
(citation omitted), it becomes truly imperative that the
jury express the commonsense judgment of society, Lockhart
v. McCree, 476 U.S. 162, 174 (1986), not its racial
prejudices. See Turner v. Murray, 476 U.S. at 35. A jury
contrived by the State to express the judgment of only a
portion of society -- in this instance, the white
residents of Ouachita Parish in 1978 -- is unacceptable
under any standard.
Certainly as to a capital jury’s sentencing
decision, full retroactivity is required. Indeed, the
144
Second and Sixth Circuits’ decisions in McCray, Roman, and
Booker vacated convictions on collateral review. As
argued in Section VI supra, the entire purpose of a
jury’s sentencing decision is to reflect accurately the
conscience of the community. E.q, we Vv.
Mississippi, 472 U.S. at 333. The fair cross-section
rule, aS applied to sentencing decisions, mandates the
same requirement -- that the jury’s decision be an
"accurate application of the common sense of the community
. . -" Ballew v. Georgia, 435 U.S. 223, 234 (1978).
Because the accuracy of the jury’s sentencing decision is
"substantially impaired," full retroactive application is
required.3297 state v. Sanders, 523 So. 2d 209, 212 (La.
1988).
307. By limiting full retroactive application to capital
sentencing decisions alone, the court’s decision
"will not substantially affect the administration of
justice." Sanders, 523 So. 2d at 212.
145
CLAIM
PETITIONER’S DEATH SENTENCE MUST BE VACATED
BECAUSE THE PROSECUTOR’S DISCRIMINATORY USE
OF PEREMPTORY CHALLENGES TO CREATE AN ALL~-WHITE
JURY VIOLATED PETITIONER’S EIGHTH AMENDMENT RIGHTS.
Article I, Section 20 of the Louisiana
Constitution and the eighth amendment of the United States
Constitution, as applied to capital sentencing, prevent
the State from undermining the reliability of a capital
jury’s sentencing decision. "[{B]jecause there is a
qualitative difference between death and any other
permissible form of punishment, ‘there is a corresponding
difference in the need for reliability in the
determination that death is the appropriate punishment in
a specific case.’" Zant v. Stephens, 462 U.S. 862, 884-85
(quoting Woodson v. North Carolina, 428 U.S. at 305), on
remand, 716 F.2d 276 (5th Cir. 1983). Under cases such as.
Caldwe v. Mississippi, 472 U.S. 320, 341, on remand, 481
So.2d 850 (1985), Caldwell v. State, 517 So. 2d 1360
(Miss. 1987), and Lockett v. Ohio, 438 U.S. 586, 601
(1978), a constitutional violation leading to an
unreliable death sentence cannot stand.
Discriminatory punishment is unreliable punish-
ment. It is well-settled that a death sentence violates
the eighth amendment and Article 1, § 20 of the Louisiana
Constitution whenever it is imposed through procedures
that inherently discriminate on the basis of race. See,
e.g., Turner v. Murray, 476 U.S. 28, 35 (1986); Furman v.
Georgia, 408 U.S. 238, 310 (1972) (Stewart, J.,
concurring) (racially motivated imposition of the death
penalty violates the eight amendment) . 398 The State may
neither discriminate itself nor attempt to exploit any
308. "Those who wrote the Eighth Amendment knew what price
their forebears had paid for a system based, not on
equal justice, but on discrimination." Furman v.
Georgia, 408 U.S. at 255 (Douglas, J., concurring).
146
discriminatory attitudes that jurors may have towards
defendants of a different race. See Turner v. Murray, 408
U.S. at 310. Here, when the State used its peremptory
challenges intentionally to fashion an all-white jury to
condemn a black juvenile, it transgressed not only the
equal protection clause and sixth amendment of the United
States Constitution, but the eighth amendment as well.
A. The State’s Discriminatory Selection Of
The Sentencing Jury Violated The
Petitioner’s Eighth Amendment Rights.
In recommending life or death, a Louisiana
sentencing jury does not sit to find facts; it sits with
the "awesome responsibility" to make a moral judgment on
behalf of the community. See Caldwell, 472 U.S. at 330-
331; Witherspoon v. Illinois, 391 U.S. 510, 519 (1968).
In this case, the State acted intentionally, and without
any justification,2799 to manufacture a jury
unrepresentative of the community. Having been rendered
unrepresentative, the jury’s moral judgment cannot
reliably reflect the community’s moral judgment. 319
While logic alone dictates that the Petitioner’s
death sentence —e" stand, analogous Supreme Court case
law also demonstrates why the State’s actions constitute
a fundamental constitutional violation. To be reliable, a
State’s procedures must ensure that the sentencing jury
"not be precluded from considering, as a mitigating
309. The State’s desire to win at any cost is no
justification under the equal protection clause, see
Batson, or the eighth amendment, cf. Witherspoon v.
Illinois, 391 U.S. 510, 521 (1968)("a State may not
entrust the determination of whether a man should
live or die to a tribunal organized to return a
verdict of death").
310. The point here, as in Batson, is not that Petitioner
was entitled to a jury with a specified racial
makeup, but that the State could not act
intentionally (a) to make the jury unrepresentative
and (b) to stigmatize blacks -- Petitioner as well as
the challenged veniremen.
147
factor, any aspect of a defendant’s character or record
and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than
death." Eddings v. Oklahoma, 455 U.S. 104, 110 (1982)
(quoting Lockett, 438 U.S. at 604). Accord Penry v.
Lynaugh, 109 S. Ct. 2934, 2947 (1989); Lockett v. Ohio,
438 U.S. 586, 604 (1978).
The Supreme Court has never hesitated to enforce
this guarantee that all mitigating circumstances be
considered. Yet, the guarantee is rendered meaningless if
the State may, at will, select an all-white jury based on-
the hope that, because of racial affiliation, the jury
will not give proper weight to important mitigating
circumstances simply because the defendant is black.
Here, the State’s selection of an all-white jury has only
one plausible explanation -- the prosecutor assumed "that
black jurors as a group [would] be unable impartially to
consider the state’s case against a black defendant,"
Batson, 476 U.S. at 90, and this is exactly what the equal
protection clause forbids. Id.
The hope that an all-white jury will give less
weight to a black defendant’s mitigating factors leads to
the second, independent ground for finding an eighth
amendment violation. The eighth amendment’s requirement
of reliability in capital sentencing is violated once
there is a risk that racial bias will affect the jury’s
sentencing decision.311 Under such circumstances, it
becomes impossible for the jury to reflect accurately the
community’s moral sense as required by the eighth
amendment. Quite to the contrary:
311. Such risks also violate Article I, § 20 of the
Louisiana Constitution since they invariably preclude
the jury from rendering a rational and nonarbitrary
Sentence. See State v. Brogqdon, 457 So. 2d 616 (La.
1984), cert. denied, 471 U.S. 1111 (1985).
148
By compromising the representative quality of
the jury, discriminatory selection procedures
make “juries ready weapons for officials to
oppress those accused individuals who by chance
are numbered among unpopular or inarticulate
minorities."
Batson, 476 U.S. at 86 & n.8 (citations omitted).
It must be remembered that capital sentencing
decisions are peculiarly vulnerable to conscious or
unconscious racial animus, no matter how well-intentioned
the juror. "Because of the range of discretion entrusted
to a jury in a capital sentencing hearing, there is a
unique opportunity for racial prejudice to operate but
remain undetected." Turner v. Murray, 476 U.S. 28, 35
(1986). Furthermore, "(t]he risk of racial prejudice
infecting a capital sentencing proceeding is especially
serious in light of the complete finality of the death
sentence." Id. To add even more to this generalized
risk of jury bias, that this case involves a black
defendant and a white victim makes the threat of biased
sentencing too great to ignore. See Turner, 476 U.S. at
36 & n.8 ("Once rhetoric is put aside, it is plain that
there is some risk of racial prejudice influencing a jury
whenever there is a crime involving interracial
violence"). When viewed in its entirety, the risk that
the Petitioner was sentenced to death on account of his
race is one that the eighth amendment does not tolerate
and one that requires that his sentence be vacated.
B. Eighth Amendment Decisions Must Be Given
Full Retroactive Application -- The State
Is Not Entitled To One Last Cruel And
Unusual Punishment.
Under Teague v. Lane, 109 S. Ct. 1060 (1989) and
Pen v, maugh, 109 S. Ct. 2934 (1989), on remand, 882
F.2d 141 (5th Cir. 1989), as discussed supra, the U.S.
Supreme Court has created a two-prong test for determining
whether a new constitutional rule should be given full
149
retroactive application to cases on collateral review. As
a practical matter, it is impossible to conceive of an
eighth amendment decision on death sentencing that would
not be fully retroactive. The State is never entitled to
one last cruel and unusual punishment.
In any event, eighth amendment violations in
capital cases, by definition, fit one of the Teague/Penry
exceptions. A substantive violation of the eighth
amendment occurs if a defendant belongs to a class of
defendants that cannot be executed. See, e.g., Ford v.
Wainwright, 477 U.S. 399 (1986) (eighth amendment
prohibits executions of the insane). Under the first
Teaque/Penry exception, a constitutional rule is fully
retroactive for that reason. See Penry, 109 S. Ct. at
2952 (citing Ford v. Wainwright, 477 U.S. at 410).
Similarly, a procedural violation of the eighth
amendment is itself unconstitutional precisely because it
calls the reliability of the jury’s sentencing decision
into question. E.g., Caldwell v. Mississippi, 472 U.S. at
330-31; Lockett v. Ohio, 438 U.S. at 604. Under the
second exception, as described in Teaque, new procedural
rules must be made fully retroactive if "without [them]
the likelihood of an accurate conviction is seriously
diminished." 109 S. Ct. at 1077. Teaque was a non-
Capital case. In a capital case, the analogous test must
be whether the likelihood of an accurate sentencing
decision which reflects the moral judgment of the
community “is seriously diminished." To hold otherwise
would, without any cause, read Teague to overrule the
Supreme Court’s earlier decisions that have applied
procedural eighth amendment decisions retroactively to
cases on collateral review. See, e.q., n v. Murra
(federal habeas petition); Tucker v. Kemp, 474 U.S. 1001
190
(1985), on remand, 802 F.2d 1293 (11th Cir. 1986)
(vacating and remanding federal habeas petition in light
of Caldwell v. Mississippi); Bowden v. Francis, 470 U.S.
1079, on remand, Bowden v. Kemp, 767 F.2d 761 (11th Cir.
1985) (vacating and remanding federal habeas petition in
light of Ake v. Oklahoma, 470 U.S. 68 (1985)).
Thus, finding a procedural violation of the
eighth amendment is equivalent to a finding that full
retroactivity is required under the second Teague prong
because the violation by definition destroys the
reliability of a jury’s decision that the defendant stautd
be executed. It cannot seriously be contended that
unreliable death sentences should be carried out.
Retroactivity is usually discussed in abstract
terms. However, Petitioner’s case demonstrates in the
most concrete way imaginable the very purpose that the
retroactivity doctrine was meant to serve -- to prevent
the infliction of an unreliably imposed death sentence.
Petitioner, at the time of the offense, was a minor,
inebriated, and a borderline retardate. He was also
black. The all-white Ouachita Parish jury?! chose to
disregard all of those mitigating factors (however badly
presented) based on a single aggravating factor. This is
assuredly not a case where a death sentence was
inevitable.
In short, the retroactivity doctrine does not
permit executions that constitute cruel and unusual
312. As previously noted, the U.S. District Court for the
Western District of Louisiana took judicial notice of
the prevalence of racial discrimination in Ouachita
Parish at the time that Petitioner was tried. See
Ausberry v. City of Monroe, 456 F. Supp. 460, 463
(W.D. La. 1978), appeal dismissed, 616 F.2d 565 (5th
Cir. 1980) (quoting Turner v. McKeithen, 490 F.2d
191, 194 (5th Cir. 1973))("Open, flagrant,
unsophisticated, purposeful discrimination has been
the long time pattern in Ouachita Parish").
Lod
punishment to be carried out. The eighth amendment, in
turn, forbids prosecutors to contrive all-white juries
that are both incapable of rendering reliable decisions
and that are designed to be susceptible to racial
discrimination. Petitioner’s death sentence should be
vacated. .
152
CLAIM X
UNDER SWAIN V. ALABAMA, PETITIONER’S
DEATH SENTENCE MUST BE VACATED BECAUSE
THE PROSECUTOR SYSTEMATICALLY EXCLUDED
BLACKS FROM PETIT JURIES OVER A PERIOD OF TIME
Even if this court does not give Batson v-
Kentucky retroactive application to Petitioner’s case,
Petitioner is nonetheless entitled to a hearing to
demonstrate that under the standards enunciated in Swain
vy. Alabama, 380 U.S. 202, 228 (1965), the prosecution
violated the equal protection clause and Article I,
section 3 of the Louisiana Constitution. Petitioner is
entitled to an opportunity to establish that the State
systematically excluded blacks from petit juries over a
period of time, an opportunity that was improperly denied
him at trial. Once a petitioner has established this
prima facie case under Swain, the State will bear the
burden of proving that its systematic exclusion was
nondiscriminatory. State v. Bias, 354 So. 2d 1330, 1331
(La. 1978).
The Louisiana Supreme Court has twice overturned
convictions because of the systematic exclusion of black
prospective ‘knee: In State v. Brown, the court found
that a prosecutor in the Parish of East Baton Rouge
engaged in “a systematic exclusion, a continual and
conscious rejection of blacks" from petit juries. 371 So.
od at 754. In State v. Washington, a case involving the
same prosecutor, the court again found "a systematic
exclusion .. . of blacks." 375 So. 2d 1162, 1165 (La.
1979). In neither instance was the prosecution able to
offer an adequate nondiscriminatory explanation for the
exclusion. Brown and Washington establish that, even
under Swain, the "federal and state constitutions do not
permit state discrimination on the basis of race alone as
Lao
a systematic and extended basis for excluding jurors."
Washington, 375 So. 2d at 1164.
Petitioner is entitled to a hearing to establish
that District Attorney Stansbury engaged in the systematic
exclusion of blacks from juries in a number of cases
extending over a period of time in violation of the Swain
standard. Swain, 380 U.S. at 223. The evidence that
Prejean will present in support of this claim will include
(a) the race of the jurors excluded in this case; (b) the
number of strikes exercised by the prosecutors against
blacks in the parish in which the prosecutor practices and
in which Prejean was tried; and (b) testimony from
attorneys who have appeared in cases in which the
prosecutor used his peremptory strikes to eliminate blacks
from the jury. The proven racially discriminatory
practices of the authorities and citizenry generally
within Ouachita Parish, see Ausberry v. City of Monroe,
456 F. Supp. 460, 463 (W.D. La. 1978), appeal dismissed,
616 F.2d 565 (5th Cir. 1980), also provide a basis for
meeting the burden imposed by Swain. See also State v.
Brown, 371 So. 2d 751 (La. 1979) (discussing racial
prejudice in the selection of juries in the East Baton
Rouge Parish).
At the close of jury selection, Petitioner’s
trial counsel objected to the all-white jury on the basis
that the prosecutor had used his peremptory challenges to
exclude all blacks on the venire.713 Because the case had
been transferred from Lafayette Parish to Ouachita Parish,
Guilbeau did not have available the records necessary to
demonstrate systematic exclusion of blacks from juries as
required by Swain.314 The next morning, Guilbeau sought
313. Tr. 469.
314. Tr. 474.
154
an opportunity to review the Lafayette Parish records but
the court denied this request, ruling that Petitioner had
not established a prima facie case of an equal protection
violation under Swain.?1>
The court wrongly denied Petitioner’s Swain
claim without providing him any opportunity to develop the
extensive records that are required by Swain. In State v.
Bias, 354 So. 2d 1330 (La. 1979), the Louisiana Supreme
Court held that a court may not deny a defendant’s Swain
motion without hearing any evidence. The Bias court ruled
that a trial court had "erroneously denied defendant the
opportunity to prove the systematic exclusion of black
jurors through the use of peremptory challenges by the
State over a period of time" without taking any testimony
or permitting defendant to develop his claim. Id. at
1332.
On direct appeal, the Louisiana Supreme Court
stated only that there was no evidence to meet the Swain
burden. 379 So. 2d at 244. This is not surprising as
Petitioner had no opportunity to present such evidence at
trial. At no time since has Petitioner been afforded an
occasion to introduce evidence in support of his Swain
claim.
As in Brown and Washington, the equal protection
clause, no less than the Louisiana State Constitution,
demands that Dalton Prejean be accorded a new sentencing
hearing untainted by the discriminatory exclusion of black
jurors.
315. Tr. 476-477.
Loo
CLAIM X
LOUISIANA’S PROSCRIPTION OF GUILTY PLEAS IN
CAPITAL CASES PERMITS ARBITRARY AND CAPRICIOUS
PUNISHMENT AND COMPELS CAPITAL DEFENDANTS TO
TESTIFY IN VIOLATION OF THE U.S. CONSTITUTION
AND ARTIC OF THE UIS A_CON ON.
From the outset, it was obvious to counsel that
the State had overwhelming evidence that Prejean killed
Officer Cleveland. In response, Guilbeau failed to mount
a defense during the guilt phase of his client’s trial,
preferring instead to characterize his client’s act as "a
tragedy." Tr. at 772,316
Article 557 of the Louisiana Code of Criminal
Procedure prevented Prejean from entering a guilty plea
that, under these circumstances, might well have led the
sentencing jury to spare his life.31’ Prejean -- without
regard to the dictates of his conscience or his lawyer’s
advice -- was compelled by force of law to plead not
guilty. This state-imposed plea violated Petitioner’s
rights as guaranteed by the fifth, eighth and fourteenth
amendments of the United States Constitution and Article
I, Sections 16 and 20 of the Louisiana Constitution.
A. The State-Imposed Plea Of Not Guilty
Violated Petitioner’s Eighth Amendment
Rights.
Louisiana’s statutory mandate that all capital
defendants must plead not guilty violated Petitioner’s
rights under the eighth amendment and Article I, Section
316. As previously indicated, counsel failed to consider
arguments that Petitioner was guilty of a lesser
offense than first-degree murder. See generally
discussion regarding Claim I.
317. Article 557 of the Louisiana Code of Criminal Proced-
ures provides:
A court shall not receive an unqualified plea
of guilty in a capital case. If a defendant
makes such a plea the court shall order a
plea of not guilty for hin.
La. Code Crim. Proc. Ann. art. 557 (West 1981).
156
20 of the Louisiana Constitution by unfairly manipulating
the sentencing jury’s perceptions of him in two ways.
First, the plea requirement forced Petitioner to inflame
the jury by protesting his innocence despite powerful
evidence of his guilt. Second, the plea requirement
prevented Petitioner from admitting his guilt and thereby
expressing remorse that could have been considered at
sentencing as a mitigating circumstance. Thus, although
Petitioner had no absolute constitutional right to have a
guilty plea accepted, Santobello v. New York, 404 U.S.
257, 262 (1971), depriving him of the right to enter that .
plea in the context of a capital case?18 effectively
denied him the informed, reasoned and dispassionate
sentencing decision to which he is entitled under the
eighth amendment. Eddings v. Oklahoma, 455 U.S. 104, 118-
119 (1982) (O’Connor, J., concurring) .319
Le The eighth amendment requires that
a person convicted of a capital
offense be permitted to offer all
mitigating evidence during sentencing.
It is fundamental that the death penalty may not
be imposed in an arbitrary or capricious manner. Furman
v. Georgia, 408 U.S. 238, 274 (1972) (Brennan, J.,
318. United States v. Jackson, 390 U.S. 570, 583-85 (1968)
is consistent with this analysis. The Jackson Court
noted in dicta that a criminal defendant has no
absolute right to have his guilty plea accepted by
the court. However, it squarely rejected, as overly
burdensome on the constitutional right to a jury
trial, a federal statutory scheme that forced a
criminal defendant to choose between entering a plea
of guilty and thereby avoiding the possibility of
execution under the statute, or pleading not guilty
and facing the possibility of execution if he select-
ed a jury trial.
319. See also Beck v. Alabama, 447 U.S. 625, 637-38
(1980); Gardner v. Florida, 430 U.S. 349, 358 (1977)
(plurality opinion); Roberts v. Louisiana, 428 U.S.
325, 334 (1976) (plurality opinion); Penry v.
Lynaugh, 109 S. Ct. 2934, 2952 (1989), on remand, 882
F.2d 141 (5th Cir. 1989).
Lor
) ,320
concurring), 310 (Stewart, J.-, concurring
Recognizing that the death penalty is "profoundly
different from all other penalties," Lockett v. Ohio, 438
U.S. 586, 605 (1978) (plurality opinion), the Supreme Court
has delineated a series of constitutionally based
principles that serve the twin goals of “measured,
consistent application and fairness to the accused."
Eddings, 455 U.S. at 111.321.
Thus, the Supreme Court has consistently in-
sisted that in a capital case, "\the sentencer .. - not
be precluded from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of the
circumstances of the offense. .- - ./" Eddings, 455 U.S.
at 110 (quoting Lockett, 438 U.S. at 604) (emphasis in
original). This principle both minimizes the possibility
that a death sentence might be imposed as a result of
"whim, passion, prejudice or mistake," 455 U.S. at 118,
and insures that each capital defendant receives "an indi-
vidualized assessment of the appropriateness of the death
penalty." Penry, 109 S. Ct. at 2947. Only by considering
every mitigating aspect of the capital defendant’s
character and record can a jury give effect to the "funda-
mental respect for humanity underlying the Eighth Amend-
ment." Woodson, 428 U.S. at 304. As the Lockett Court
stated:
639-43; Franklin v. Lynaugh, 108 S. Ct. 204
109 S. Ct. at 2951.
under a statute that precluded consideration of
relevant mitigating factors); eqg v. Ge ia, 428
U.S. 153, 206-07 (1976) (joint opinion of Stewart,
Powell and Stevens, JJ.) (upholding Georgia statute
requiring jury to find one aggravating circumstance
and to review “any mitigating circumstances" prior to
imposing death); Woodson Vv. North Carolina, 428 U.S.
280, 305 (1976) (plurality opinion) (striking as
unconstitutional mandatory death sentencing statute).
158
There is no perfect procedure for deciding in
which cases governmental authority should be
used to impose death. But a statute that
prevents the sentencer in all capital cases from
giving independent mitigating weight to aspects
of the defendant’s character and record and to
circumstances of the offense proffered in
mitigation creates the risk that the death
penalty will be imposed in spite of factors
which may call for a less severe penalty. When
the choice is between life and death, that risk
is unacceptable and incompatible with the
commands of the Eighth and Fourteenth Amend-
ments.
438 U.S. at 605.
2% Capital defendants must be permitted
to enter a guilty plea because such
a plea reflects character evidence
relevant to mitigation.
Lockett and the cases following it have made clear
that all evidence relevant to mitigation must be
available to the sentencing jury. Because a guilty plea
is frequently interpreted as reflecting a defendant’s
remorse and thus as reflecting favorably on his character,
the eighth amendment does not permit the states to prevent
the entry of such a plea in a capital case.
Courts have widely recognized the relevance of
remorse (or its absence) to sentencing determinations at
capital trials. See State v. Summit, 454 So. 2d 1100,
1108 (La. 1984), cert. denied, 470 U.S. 1038 (1985)
("*(Ljack of remorse is a relevant factor for the
sentencing jury’s consideration.’"); State v. Smith, 673
P.2a 17, 24 (Ariz. 1983), cert. denied, 465 U.S. 1074
(1984); People v. Teron, 588 P.2d 773, 782 (Cal. 1978). A
plea of guilty entered prior to the commencement of a
Capital trial is perhaps the clearest concrete expression
of honesty, remorse and repentance that a defendant can
express. °22
322. Cf. Skipper v. South Carolina, 476 U.S. 1, 3 (1986).
In Skipper, the Court reversed a death sentence
because evidence of the defendant’s conduct while
(continued...)
159
The fact that an uncoerced admission of guilt
has been entered is thus critical to a sentencing jury’s
consideration of a defendant’s character and is therefore
essential to mitigation. The ABA’s Standards for Criminal
Justice provide:
It is proper for the court to grant charge
and sentence concessions to defendants who
enter a plea of guilty or nolo contendere
when consistent with the protection of the
public, the gravity of the offense, and the
needs of the defendant... .
3 ABA, Standards for Criminal Justice § 14-1.8 (2d ed.
1980). The Supreme Court and others have also recognized ©
the direct relationship between a defendant’s decision to
enter a guilty plea and the potential for a lesser punish-
ment created thereby. See, e.g., North Carolina v.
Auford, 400 U.S. 25, 37-38 (1970) (recognizing validity of
pleading guilty to avoid death penalty); Brady v. State,
397 U.S. 742, 752 (1970) ("For a defendant who sees slight
possibility of acquittal, the advantages of pleading
guilty and limiting the probable penalty are obvious --
his exposure is reduced [and] the correctional process can
begin... ."); Note, The Influence of the Defendant’s
Plea on Judicial Determination of Sentence, 66 Yale L.J.
204, 206 (1956) (overwhelming number of judges acknowledge
that defendant’s plea was relevant to sentencing).
Notwithstanding this recognized nexus between a
defendant’s decision to enter a guilty plea and the
322.(...continued)
incarcerated had been improperly excluded from the
jury during sentencing deliberations. In so doing,
the Skipper majority made clear that the holdings of
Lockett and Eddings extend beyond evidence that
lessens the defendant’s criminal culpability to
encompass any post-arrest character evidence that
would be "‘mitigating’ in the sense that [it] might
serve ‘as a basis for a sentence less than death.’"
Skipper, 476 U.S. at 4-5 (quoting Lockett, 438 U.S.
at 604). A guilty plea constitutes post-arrest
character evidence that is mitigating in precisely
this sense.
160
likelihood that he will be given a lesser punishment as a
result, the Supreme Court of Louisiana, in State v.
Watson, 423 So. 2d 1130, 1134 (La. 1982) (per curiam),
rejected the argument that Article 557’s prohibition of
guilty pleas prejudices a capital defendant during the
penalty phase of the trial on the ground that defense
counsel can explain the proscription to the jury during
the penalty phase. The court noted that defense counsel
could have "argued that the only issue from the outset was
life or death, pointing out that he was required by law to
plead not guilty in the first phase in order to contest
that issue in the penalty phase." Id. The court thus
concluded that "there is no prejudice in the statutory
scheme which requires that a plea of not guilty be entered
in a capital case." Id.
Watson did not involve a constitutional
challenge to Article 557. Furthermore, the Louisiana
Supreme Court failed to consider the full value of a
guilty plea offered during the guilt phase of the trial.
Even if a defendant asserts at the penalty phase that he
would have pleaded guilty if it had been legally
permissible, the jury has no concrete expression, and thus
no proof, of the defendant’s remorse. The jury might
instead conclude that faced with his conviction and the
possibility of capital punishment, the defendant is making
false protestations of remorse in order to avoid the death
penalty. There is also a possibility that ineffective
counsel might, as here, fail to apprise the jury of
Article 557’s effect. Article 557 thus prejudices the
defendant by denying him the ability concretely to
demonstrate his remorse.
161
3. Louisiana improperly precluded
Petitioner from expressing
potentially mitigating aspects
of his character by preventing
him from entering a guilty plea.
In violation of the Supreme Court’s command that
a sentencing jury be allowed to "consider and give effect
to any mitigating evidence relevant to a defendant’s
character, or the circumstances of the crime," Penry, 109
S. Ct. at 2951, Article 557 severely constrained Peti-
tioner’s ability to express potentially mitigating aspects
of his character by preventing him from entering a guilty
plea. In so doing, the statute directly contravened the
eighth amendment’s mandate that a capital defendant be
given the right to present the jury with all mitigating
character evidence, including evidence of his remorse. 273
The prejudice to Petitioner was exacerbated by
the trial court. The court failed to instruct the jury
that Petitioner’s plea could not be interpreted as an
indication of unrepentance or dishonesty, and Petitioner’s
plea was the product of compulsion rather than choice.
Indeed, by instructing the jury that "the accused has
pleaded not guilty" without elaboration, Tr. 774, the
court’s charge misled the jury by implying that Petitioner
voluntarily sought to defend himself in the face of the
overwhelming evidence against him. 224
I
323. Similarly, a state would undeniably violate the
Constitution if it were to pass legislation prevent-
ing capital defendants from presenting evidence in
mitigation derived from birth certificates, psycho-
logical testing, prison records, or family history.
324. Although counsel made a cryptic reference to the tact
that he "could not even plead [petitioner] guilty and
plea bargain with the judge," Tr. 847, this statement
is wholly insufficient to cure the prejudice suffered
by Dalton. Plea bargaining is, if anything, in
public disfavor. Counsel thus not only failed to
present viable defenses, he was also ineffective in
explaining why he did not present a defense.
162
Only if Petitioner’s degree of remorse has no
bearing on his moral culpability or character -- and thus
on the sentencing determination of a single juror -- can
this court allow the imposition of the death penalty
without ever permitting Petitioner to express his remorse
in the most tangible and effective way possible: by
offering a plea of guilty. See La. Code Crim. Proc. Ann.
art. 905.8 (West 1984) ("If the jury is unable to
unanimously agree on a recommendation, the court shall
impose a sentence of life imprisonment without benefit of
probation, parole or suspension of sentence.") ,325
325. The Louisiana Supreme Court has stated that the
prohibition against pleading guilty in a capital case
was to prevent a person from bringing about his own
death: "There is a well founded legislative policy
against a person accomplishing judicial suicide."
State v. Jett, 419 So. 2d 844, 851 (La. 1982). See
also State v. Clark, 389 So. 2d 1335, 1336 (La. 1980)
(Dennis, J., concurring in part and dissenting in
part), cert. denied, 449 U.S. 1103 (1981). This
justification does not further a demonstrably
compelling state interest and thus is not sufficient
to outweigh a capital defendant’s eighth amendment
rights.
Moreover, Louisiana may guard, and indeed does guard,
against capital sentences brought about by the
suicidal inclinations of a defendant through other,
constitutionally permissible, means. For example,
Louisiana currently prohibits the imposition of a
death sentence unless the jury finds beyond a
reasonable doubt that at least one statutory
aggravating circumstance exists. La. Code Crim.
Proc. Ann., Article 905.3 (West 1984). This
requirement provides substantial protection against a
sentence based on nothing more than the self-
destructive impulses of the defendant. Additional
protection could be provided by a statute, similar to
the one currently in effect in California,
prohibiting a guilty plea in a capital case without
the consent of the defendant’s counsel. See Cal.
Penal Code Sec. 1018.
163
B. The Prohibition On Guilty Pleas In
Capital Cases Impermissibly Burdened
Petitioner’s Right To Remain Silent
Guaranteed By Article I, Section 16
Of The Louisiana Constitution And
The Fifth And Fourteenth Amendments
To The United States Constitution.
The fifth amendment provides that no person
"shall be compelled in any criminal case to be a witness
against himself." U.S. Const. amend. v.3?26 this privi-
lege against self-incrimination not only guarantees the
criminal defendant’s right to remain silent, but also
prevents the defendant from being penalized for exercising
this right. Carter v. Kentucky, 450 U.S. 288, 305 (1981);
Griffin v. California, 380 U.S. 609, 615 (1965); Malloy v.
Hogan, 378 U.S. 1, 8 (1964).
Article 557 is unconstitutional because it
forces a criminal defendant to face a Hobson’s choice
between: (1) exercising his right to remain silent --
thus saying nothing about his desire.to enter a guilty
plea and express his remorse -- and allowing the jury to
render a decision without such testimony; and (2) waiving
his privilege against self-incrimination and taking the
stand to testify about his wish to enter a guilty plea.
In effect, then, Article 557’s denial of a criminal
defendant’s right to plead guilty coerces the defendant
who is confronted with the possibility of execution to
forego his right to remain silent and to testify about his
wish to enter a guilty plea. This compulsion is anathema
to the privilege against self-incrimination, particularly
in the context of a capital case.
326. Similarly, Article 1, § 16 of the Louisiana
Constitution provides that "{n]o person shall be
compelled to give evidence against himself."
164
Li The privilege against self-incrimination
requires that a defendant pay no price
or its exercise.
The privilege against self-incrimination is a
reflection of
many of our fundamental values and most
noble aspirations: our unwillingness to
subject those suspected of crime to the
cruel trilemma [sic] of self-accusation,
perjury or contempt; .. . our fear that
self-incriminating statements will be
elicited by inhumane treatment and abuses;
our sense of fair play which dictates ‘a
fair state-individual balance by requiring
the government... . in its contest with
the individual to shoulder the entire
load’; .. . our distrust of self-
deprecatory statements; and our realization
that the privilege, while sometimes a
‘shelter to the guilty,’ is often ‘a
protection to the innocent.’
Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1964) (cita-
tion omitted). Extrapolating from these basic prin-
ciples, the Court, in Griffin v. California, 380 U.S.
609, 613-15 (1965), held that a jury could not draw an
unfavorable inference from a defendant’s failure to
testify and concluded that allowing such an inference
would "[{cut] down on the privilege by making its assertion
costly." Id. at 614. Griffin thus "stands for the
proposition that a defendant must pay no... price for
the exercise of his constitutional privilege not to
testify." Carter, 450 U.S. at 301.
The analysis employed by the Fifth Circuit in
Gholson v. Estelle, 675 F.2d 734, 739-42 (5th Cir. 1982),
is fully applicable here. In Gholson, two capital
defendants were forced, during the sentencing phase of
their trial, to undergo psychiatric evaluation to
determine future dangerousness. When both refused to
admit their guilt, the evaluating psychiatrists testified
that neither exhibited remorse and that this lack of
remorse reflected sociopathic personality disorder.
Defendants argued that their decision not to incriminate
165
themselves was constitutionally protected and could not be
used aS aggravating evidence during sentencing. Both the
district court and the Fifth Circuit agreed, the latter
characterizing the state’s argument as placing the
defendants ina "heads-I-win, tails-you-lose" position.
Id. at 742. Section 557 similarly compels defendants to
show no remorse by forcing them to contest guilt and thus
burdens their opportunity to demonstrate remorse in the
sentencing phase.
A is Article 557 works an unconstitutional
hardship by extracting a steep price
for defendants’ exercise of their fifth
amendment privilege.
A capital defendant in Louisiana finds himself
in an untenable position when he is forced to choose
between maintaining his silence in the face of a compelled
plea of not guilty, or taking the stand to express his
remorse. As was true in Gholson, expression of remorse
for purposes of mitigation is possible only when the
defendant waives his privilege against self-incrimination.
Thus, under Louisiana law, a capital defendant who is
prohibited from entering a guilty plea may -- as in the
present case -- pay the ultimate price for exercising his
privilege not to testify because his failure to testify
leaves the jury with uncontroverted and powerful evidence
of guilt and a plea of not guilty in spite of that
evidence. This inhibits the defendant’s expression of
remorse and thereby creates an intolerably greater risk of
execution.
Moreover, by placing pressure on the defendant
to testify to his guilt so as not to bear the risk of
presenting a potentially inflammatory not guilty plea to
the jury, the state raises the likelihood that it will be
permitted to introduce prior criminal conduct as a result
166
of the defendant’s decision to testify. The penalties
that flow from the decision to maintain one’s silence
despite a state-compelled plea of not guilty are wholly
incompatible with the edict that "the state proposing to
execute an individual must produce the evidence against
him by some means other than his choosing to exercise his
constitutional right to remain silent." Gholson, 675 F.2d
at 742.
If a capital defendant were permitted to enter a
guilty plea, no such burden would exist. 327 By entering a
guilty plea, the defendant would obviate the need to
testify as to his remorse or as to the inconsistency
between his plea and the evidence against him. He could
thus remain silent without suffering any penalty, as is
mandated by the constitution. Because there is no more
extreme penalty than execution, "it necessarily follows
that the decision to exercise the constitutional privilege
to remain silent should not serve as the foundation for
sentencing the decision maker to die." Gholson, 675 F.2d
at 742.
327. A plea of guilty constitutes a waiver of the right to
remain silent. See, e.g., Boykin, 395 U.S. at 243.
It is generally agreed, however, that the waiver does
not take effect until the defendant has been
sentenced and that a defendant who pleads guilty
cannot be compelled to testify where his testimony
could be used to enhance his punishment. United
States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th
Cir.), cert. denied, 439 U.S. 1005 (1978); United
states v. Houghton, 554 F.2d 1219, 1222 (1st al sh»
cert. denied, 434 U.S. 851 (1977); United States v.
Wilson, 598 F. Supp. 138, 142 (E.D. Pa. 1984). See
also Estelle v. Smith, 451 U.S. 454, 462-63 (1981).
167
CLAIM XIl
THE EXECUTION OF A MENTALLY
RETARDED AND BRAIN-DAMAGED
JUVENILE OFFENDER IS CRUEL,
UNUSUAL, AND EXCESSIVE PUNISHMENT.
As shown below, conventional eighth amendment
analysis demonstrates that the execution of mentally
retarded or seriously brain-damaged juvenile offenders is
cruel and unusual punishment. That analysis is unneces-
sary, however, because Petitioner’s sentence is patently
"barbarous." State v. Donahue, 408 So. 2d 1262, 1267 (La.
1982) (construing La. Const. Art. 1, § 20). As a matter of
common sense, a mentally retarded or brain-damaged |
juvenile like Dalton Prejean cannot have been sufficiently
responsible for his actions to merit the death penalty.
His death sentence accordingly violates Article 1, Section
20 of the Louisiana Constitution as well as the eighth and
fourteenth amendments to the United States Constitution.
A. Petitioner’s Death Sentence Serves No Leg-
itimate Goal Of Punishment And Is Almost
Certainly The Product Of Illegitimate
Factors Such As Race.
A death sentence is unconstitutional if it
"makes no measurable contribution to acceptable goals of
punishment and hence is nothing more than the purposeless
and needless imposition of pain and suffering... ."
See Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality
opinion). See also Penry, 109 S. Ct. at 2955-56
(O’Connor, J.); id. at 2963 (Brennan & Marshall, JJ.,
concurring in part and dissenting in part). The death
penalty can be imposed only if it "measurably
contributes" to at least one of two permissible goals of
punishment: retribution or deterrence. Enmund v. Flori-
da, 458 U.S. 782, 798 (1982) (citing Greqg v. Georgia, 428
U.8. 193, i183 €1976)). ee Stanford v. Kentucky, 109 S.
Ct. 2969, 2979 (1989) (plurality opinion). Because neither
168
goal is legitimate where a mentally defective juvenile is
involved, Petitioner’s death sentence cannot stand.
a The goal of retribution cannot be
served by executing a brain-damaged
and retarded youth.
There are constitutional limits on society’s
right to retribution. Retribution is acceptable only if
the defendant is morally culpable for the harm that he
causes. Enmund, 458 U.S. at 800. Because a death
sentence is the ultimate penalty, it cannot be appropriate
unless the defendant can be held fully responsible for his
actions. The Supreme Court in Enmund vacated the death
sentence of an accomplice who did not participate in a
murder; a substantial basis for the Court’s decision was
its conclusion that the accomplice was not fully
responsible for what ensued.
The notion that mentally retarded or brain-
damaged juveniles can be fully responsible for their
crimes refutes itself. Juveniles, as a matter of law, are
presumed to be incapable of taking responsibility for
their actions.
Reprehensible acts by juveniles are not
deemed the consequence of mature and
malevolent choice but of environmental
pressures (or lack of them) or of other
forces beyond their control.
McKeiver v. Pennsylvania, 403 U.S. 528, 551-52 (1971)
(White, J., concurring) (emphasis added). See, e.g.,
Thompson v. Oklahoma, 108 S. Ct. 2687, 2698 (1988) (plu-
rality opinion) ("Thus, the Court has already endorsed the
proposition that less culpabil .ty should attach to a crime
committed by a juvenile than to a comparable crime
committed by an adult."); Schall v. Martin, 467 U.S. 253,
265 (1984) (Rehnquist, J.) ("Children, by definition, are
not assumed to have the capacity to take care of
themselves."); Eddings v. Oklahoma, 455 U.S. 104, 116
169
(1982); Belotti v. Baird, 443 U.S. 622, 635 (1979). See
also State v. Stone, 535 So. 2d 362, 364 (La. 1988).
Louisiana, of course, recognizes this fact in setting 18
as the minimum age for, among other things, the right to
serve on a jury, La. Code Crim. Proc. Ann. art. 401A(2)
(West Supp. 1989); the right to marry without parental
consent, La. Rev. Stat. Ann. 9:21A (West Supp. 1989); and
even the right to drive without parental consent. La.
Rev. Stat. Ann. § 32:407C (West Supp. 1989). Indeed,
Petitioner could not have witnessed his own execution at
the time that the crime occurred. La. Rev. Stat. Ann.
§ 15:570 (West 1981).
In theory, there might be an unusually
responsible 17-year-old who could "achieve sufficient
maturity to be held fully responsible for murder." See
Stanford, 109 S. Ct. at 2978. However, mentally retarded
and brain-damaged 17-year-olds are, by definition, not the
mature adolescents whose executions are contemplated in
Stanford.?728 They, instead, belong to the category of
juveniles, who, as a matter of law, must be held incapable
of taking responsibility for their actions due to "other
forces beyond their control." McKeiver, 403 U.S. at 552
(White, J., concurring). The mentally retarded adult
defendant is "less able than a normal adult to control his
impulses or to evaluate the consequences of his conduct."
328. At his trial, testimony established Petitioner’s I.Q.
as 76. Tr. 828. According to that score, Petitioner
was a borderline retardate. Prejean v. Blackburn,
379 So. 2d 240, 248 (La. 1979), cert. denied, 449
U.S. 891, rehearing denied, 449 U.S. 1027 (1980). As
demonstrated by the affidavit of Dr. Bear,
Petitioner, at the time of the offense, suffered from
additional mental and psychological defects,
including damage to the frontal and parietal lobes of
his brain. Bear Aff. 44 5-21. These mental defects
preclude any claim that Petitioner could be
considered a "mature" or "responsible" juvenile.
170
Penry, 109 S. Ct. at 2949. The effect of mental retarda-
tion:
is found in every dimension of the indi-
vidual’s functioning, including his lang-
uage, communication, memory, attention,
ability to control impulsivity, moral
development, self-concept, self-perception,
Ssuggestibility, knowledge of basic informa-
tion, and general motivation. Among the
many substantial intellectual impairments
resulting from mental retardation, the most
serious occur in logical reasoning, strate-
gic thinking, and foresight. The ability
to anticipate consequences is a skill
requiring intellectual and developmental
ability. ,
* * *
Moral development is also affected by
mental retardation. It is widely accepted
by researchers that moral reasoning ability
develops in stages, incrementally over
time, and is dependent on an individual’s
intellectual ability and developmental
level. Thus, mental retardation limits the
ability of individuals to reach full moral
reasoning ability.
Brief for American Association on Mental Retardation
("AAMR Brief") as Amicus Curiae (filed herewith as
Appendix 50) at 6, 8 (citations to scholarly works
omitted); Penry, 109 S. Ct. at 2934.329
Given the limited ability of a mentally retarded
adult to take responsibility for his actions, a mentally
retarded or brain-damaged juvenile defendant cannot
plausibly be expected to control his impulses or to
evaluate the consequence of his conduct. The facts of
this case, in which the trooper’s rough treatment of
Petitioner’s brother incited Petitioner, prove as much.
Trying and executing Petitioner as though he were a
responsible adult is thus a cruel fiction unsanctioned
329. In Penry, a majority of the Court treated the AAMR
brief as authoritative in its description of the
nature and effects of mental retardation. See 109 S.
Ct. at 2957 (O’Connor, J.); id. at 2961 (Brennan &
Marshall, JJ.); id. at 2963 (Stevens & Blackmun, JJ.)
(urging that executions of any mentally retarded
persons be held unconstitutional on the basis of the
arguments set forth in the AAMR’s brief).
171
either by the eighth amendment or by the Louisiana
Constitution.
2. The goal of deterrence cannot be
served by executing a brain-damaged
and retarded youth who killed some-
one as a juvenile.
It is absurd to speak of deterrence in the case
of a brain damaged, retarded youth. Deterrence, after
all, presumes a cost-benefit analysis whereby a potential
offender decides that the penalty resulting from the crime
exceeds the gratification he expects from committing the
crime. See Thompson v. Oklahoma, 108 S. Ct. at 2700.
While the most mature juveniles are undoubtedly
capable of engaging in such an analysis, brain-damaged or
mentally retarded juveniles assuredly cannot do so --
through no fault of their own. In addition to the
intellectual limitations noted above, two additional
consequences of mental retardation make deterrence
impossible:
The problems caused by a mentally retarded
defendant’s substantial intellectual defi-
cits are aggravated by intellectual rigid-
ity, which is often demonstrated by an im-
paired ability to learn from mistakes and a
pattern of persisting in behaviors even
after they have proven counterproductive or
unsuccessful. One feature of this rigidity
is that a person who has mental retardation
often cannot independently generate in his
mind a sufficient range of behaviors from
which to select an action appropriate to
the situation he faces (particularly a
stressful situation).
A related consequence of mental retardation
is impairment in the ability to control
impulsivity. This appears to be related to
problems that people with mental retarda-
tion encounter in attention span, attention
focus, and selectivity in the attention
process. Such an impairment in the area of
impulsivity is, of course, directly rele-
vant to the level of an individual’s abili-
ty to conform his conduct to the law’s re-
quirements and therefore to the degree of a
defendant’s culpability.
AAMR Brief at 8.
Even if Petitioner were a juvenile of average
mental ability, deterrence would be an inapplicable
concept.
The likelihood that the teenage offender
has made the kind of cost-benefit analysis
that attaches any weight to the possibility
of execution is so remote as to be virtual-
ly nonexistent. And, even if one posits
such a cold-blooded calculation by a 15-
year-old, it is fanciful to believe that he
would be deterred by the knowledge that a
small number of persons his age have been
executed during the 20th century.
Thompson, 108 S. Ct. at 2700.
Petitioner is not a juvenile of average mental
ability, however. As with retribution, it would be a
cruel pretense to justify his execution on the ground that
it will deter others like him who, as a matter of prece-
dent and common sense, cannot be deterred.
a» Two impermissible factors --
especially race -- may have
played a role in Petitioner’s case.
Not only are the legitimate goals of punishment
not applicable in this case, but there is every reason to
believe that two improper and highly objectionable consi-
derations played a role in Petitioner’s death sentence:
race and eugenics.
Race may well have played an important role in
this case. Petitioner, who is black, was charged with the
murder of a white victim. In violation of Batson v.
Kentucky (as demonstrated supra), the prosecutor
deliberately selected an all-white jury to facilitate
Petitioner’s execution. Given the realities of race
relations in Ouachita Parish in 1978 when Petitioner was
tried,?39 it is all too likely that the conscious or
330. That same year, the U.S. District Court took judicial
notice that "open, flagrant, unsophisticated, pur-
poseful discrimination against blacks has been the
long time pattern in Ouachita Parish." Ausberry v.
(continued...)
a 173
eee
unconscious racial attitudes of the white jurors may have
caused them to discount Petitioner’s retardation and youth
as mitigating factors and to have considered Petitioner’s
race or the other factors described below in imposing
sentence.
Petitioner is thus caught ina bind. In
Stanford and Penry, the Supreme Court held that executions
of 17-year-old offenders and mentally retarded adult
offenders, respectively, are not unconstitutional in
substantial part because the defendant is given
individualized consideration. See Stanford, 109 S. Ct. at
2978 (Scalia, J.); Penry, 109 S. Ct. at 2957 (O’Connor,
J.). Individualized consideration enables the jury to
separate the unusually mature and capable defendants
belonging to these groups from the larger number who do
not merit the death penalty. Cf. Stanford, 109 S. Ct. at
2977 (Scalia, J.) (unusually low numbers of juveniles
sentenced to death suggests that juries are properly
determining that death sentence is usually inappropriate
for juveniles). Because the prosecutor successfully
selected a jury unrepresentative of the community and
susceptible to bias against Petitioner, it is all too
likely that Petitioner was denied a fair opportunity for
individualized consideration. |
Eugenics may also have played a role. There is
widespread (however unjustified) public skepticism that a
life sentence in fact means that a defendant will spend
the rest of his life in prison. As a result, the jury
could have feared that Petitioner would be released from
jail and would father similarly retarded children. See
330.(...continued)
City of Monroe, 456 F. Supp. 460, 463 (W.D. La.
1978), appeal dismissed, 6165 F.2d 565 (5th Cir.
1980) (quoting Turner v. McKeithen, 490 F.2d 191, 194
(Sth Cir. 1973)).
174
Streib, supra at 639. This is not an acceptable goal of
punishment.
B. The Execution Of Mentally Retarded Or
Brain-damaged Juvenile Offenders Violates
Contemporary Standards Of Decency.
No state legislature has specifically authorized
the execution of mentally retarded or brain-damaged
juvenile murderers, and there is no reason to believe that
any legislature would ever be willing to do so. Because
such executions therefore do not comport with the "‘evolv-
ing standards of decency that mark the progress of a
maturing society,’" Penry, 109 S. Ct. at 2953 (quoting
Trop v. Dulles, 356 U.S. 86, 101 (1958)), Petitioner’s
sentence must be invalidated on this separate ground.
In determining contemporary standards of decen-
cy, a majority of the Supreme Court has looked to two
primary indicators: statutes and actual jury verdicts.
=>
See Thompson, 108 S. Ct. at 2708 (O’Connor, J.); Enmund v.
Florida, 458 U.S. 782, 794-96 (1982). Not only does no
statute explicitly authorize such executions, but the only
state to address the issue of executing mentally retarded
defendants following the publicity regarding the execution
of a mentally retarded adult prohibited such executions in
the future. See Ga. Code Ann. § 17-7-131(j) (1988 Supp.) ;
Georgia to Bar Executions of Mentally Retarded Killers,
N.Y. Times, Apr. 12, 1988, at A26, col. 4. The absence
of legislative sanction may be, of itself, a sufficient
reason to invalidate Petitioner’s sentence. See Stanford,
109 S. Ct. at 2975-76.
The statistics on actual death sentences equally
suggest public unwillingness to execute mentally deficient
juveniles. From 1982 through 1988, only 2.1% of death
sentences were imposed on juveniles aged 16 and 17 (45 out
of 2106), Stanford, 109 S. Ct. at 2977, even though
Lia
juveniles were arrested for a much greater proportion of
nonnegligent homicides (9.3%).331
Those are the statistics for all juveniles.
While no one has yet compiled statistics regarding mental-
ly retarded juvenile defendants, it is easy to show that
the disparity would be even greater for them. Approxi-
mately 3% of the population can be classified as mentally
retarded.732 Even if we assume that juvenile offenders on
death row are ten times as likely to be mentally retarded
as other juveniles, only .6% of death row inmates would be
retarded juvenile offenders. Put another way, if 30% of
all juvenile offenders sentenced to death were mentally
retarded, there would be 12 on death row out of the 2106
sentenced between 1982 and 1988. Even making the dubious
assumption that none of these sentences was tainted by
improper factors, that is an infinitesimal number that
demonstrates that society does not tolerate this type of
execution.
Neither Stanford nor Penry sanction this type of
execution. Both of these cases rejected the respective
challenges made as overbroad. Both of these cases rest on
the assumption that, within the groups of juveniles and
the mentally retarded, there are members sufficiently
mature and intelligent as to be fully culpable for their
actions; the system of individualized consideration serves
to identify such defendants. See Stanford, 109 S. Ct. at
2978;333 penry, 109 S. Ct. at 2957-58. Where a defendant
331. See Bureau of Justice Statistics, U.S. Dep’t of
Justice, Source Book of Criminal Justice Statistics-
1982, 398, 403 (1983) (1980 statistics).
332. Appendix A at 5.
333. Stanford, moreover, rested on the number of state
statutes validating death sentences for 17- and 16-
year-olds by setting a younger minimum age for execu-
tions. There are no comparable statutes here that
validate executions of mentally deficient juveniles.
176
Be ee a
is both mentally retarded and a juvenile, he is a fortiori
among the least responsible members of both groups. Not
only is his death sentence on its face grossly
disproportionate, but the risk that improper factors
influenced the sentence is unacceptably high.
Death sentences that serve no acceptable penal
goal and enjoy no demonstrable acceptance in Louisiana or
elsewhere only undermine the credibility of the capital
punishment system. Petitioner’s death sentence is such a
sentence, and should therefore be set aside on either
ground.
177
CLAIM XIII
PETITIONER’S DEATH SENTENCE WAS IMPOSED
ARBITRARILY AND CAPRICIOUSLY BECAUSE IT IS
UNCLEAR THAT THE LOUISIANA LEGISLATURE
INTENDED THAT MINOR OFFENDERS COULD BE
SUBJECT TO CAPITAL PUNISHMENT.
In Thompson v. Oklahoma, 108 S. Ct. 2687 (1988),
Justice O’Connor cast the deciding vote invalidating a
death sentence on the ground that there was serious
ambiguity as to whether Oklahoma had intended that 15-
year-old offenders could be subject to the death penalty.
See 108 S. Ct. at 2709-10 (O’Connor, J., concurring).
Louisiana’s statutory scheme is even more ambiguous than
Oklahoma’s as to whether it is intended that anyone under
18 be subject to execution.2734 Given that ambiguity,
Petitioner’s death sentence was imposed arbitrarily and
capriciously in violation of Article 1, Section 20 of the
Louisiana Constitution and the eighth amendment.
In deciding that the Oklahoma legislature’s
intention to permit Thompson’s execution was ambiguous,
Justice O’Connor relied solely on Oklahoma’s failure to
specify whether minors of any age were subject to capital
punishment. See 108 S. Ct. at 2710-11. Because of that
fact,
there is a considerable risk that the
Oklahoma legislature either did not realize
that its actions would have the effect of
rendering 15-year-old defendants death-
eligible or did not give the question the
serious consideration that would have been
reflected in the explicit choice of some
minimum age for death-eligibility.
Id. at 2711.
Similarly, the Louisiana statutory scheme fails
to specify a minimum age for death-eligibility. Thus, the
Legislature "did not give the question the serious
334. Under La. Civ. Code Ann. art. 37 (West 1987), the age
' of majority was 18 at the time that Petitioner was
tried for a crime committed when he was 17.
178
consideration that would have been reflected in the
explicit choice of some minimum age for death-eligibi-
Lity si"
The greater ambiguity of the Louisiana statutory
scheme stems from two additional facts. First, unlike
Oklahoma, Louisiana does not require a judicial finding of
any kind before a minor may be tried as an adult and thus
rendered death-eligible. La. Rev. Stat. Ann. § 13:1570
(West 1983). As the Louisiana Supreme Court noted in
State v. Stone, 535 So. 2d 362, 364 n.5 (La. 1988), in
vacating a 15-year-old offender’s sentence under Thompson:
In fact, it can be argued that Louisiana
provides less consideration as to the ma-
turity of a person under the age of sixteen
to be tried as an adult. Whereas Oklahoma
provides for a procedure to have the child
certified as an adult, in Louisiana the
single act by the district attorney in
charging the defendant with one of the
enumerated crimes subjects the defendant to
trial and punishment as an adult.
Indeed, at the time that Petitioner was transferred to the
jurisdiction of the District Court, there was no require-
ment that the Juvenile Court even consider whether the
transfer was appropriate so long as there was probable
cause that the juvenile committed the crime.335 See La.
Rev. Stat. § 13:1571.1 (West 1983).
Given the procedural protections afforded
capital defendants, 226 it would be odd to assume that the
Legislature gave district attorneys complete and unfet-
tered power to make minors death-eligible off-handedly in
335. The present requirement that the Juvenile Court make
an individualized determination that "there is no
substantial opportunity for rehabilitation through
facilities available to the juvenile court" was added
in 1980. See Acts 1980, No. 482, § l.
336. "The restrictions that we have required under the
Eighth Amendment (in capital cases] affect both
legislatures and the sentencing authorities respon-
sible for decisions in individual cases." Thompson,
108 S. Ct. at 2710 (O’Connor, J.).
179
a statute that applied to several serious crimes. The
existence of statutes in other jurisdictions setting
minimum ages for execution makes it all the less likely
that Louisiana’s legislature intended to authorize the
execution of minors through Sections 1570 and 1571.1.
Further ambiguity is created by La. Rev. Stat.
§ 15:570 (West 1981), which provides that "no person under
the age of eighteen years shall be allowed within said
execution room during the time of execution." The lan-
guage of the statute makes no exception for the capital
defendant himself, which suggests that the Legislature did
not envision that minors would be executed.
Underlying this ambiguity is the lack of any
other evidence that the execution of minors is acceptable
in Louisiana.°22’ Next to statutes, jury sentences are the
most significant indication of "the evolving standards of
decency that mark the progress of a-maturing society."
See Thompson, 108 S. Ct. at 2706 (O’Connor, J.) (quoting
Trop v. Du s, 356 U.S. 86, 101 (1958)). To Petitioner’s
337. The recent decision in Stanford v. Kentucky, 109 S.
Ct. 2969 (1989), that the execution of minors is not
per se cruel and unusual punishment does not under-
mine Petitioner’s claim. First, Petitioner’s claim
turns on the interpretation of Louisiana’s specific
statutory scheme, which is more ambiguous than that
involved in Thompson. Second, Stanford turns on in-
terpretation of national standards. The existence
of statutes in other states authorizing the execu-
tions of minors does not help resolve the ambiguity
in Louisiana’s own scheme. Third, there was appar-
ently a barely sufficient number of juvenile capital
offenders on death row throughout the nation that
the Court was willing to allow their executions to
proceed as not "unusual." Given Louisiana’s sizeable
death row, the presence of only a single juvenile
offender facing a real possibility of death in the
thirteen years after Gregg v. Georgia, 428 U.S. 153
(1976), suggests at least great uncertainty whether
Louisiana in fact tolerates the execution of such
offenders.
180
knowledge, he is the only Louisiana minor in the post-
Gregg era who stands in actual risk of execution. 338
It is therefore unclear that the Legislature has
intended that minors be executed or that the Legislature
would enact a minimum age under eighteen were it required
to face the issue. Given the uncertainty, Petitioner’s
death sentence should be vacated and the case remanded for
imposition of a life sentence. If, despite the absence of
death sentences for minors, the Court has erred, the
Legislature can easily rectify the error. If Petitioner’s
sentence were erroneously carried out, we would confront
an error that could not be rectified.
338. The only other minor on death row in Louisiana, Troy
Dugar, was fifteen when he committed his crime and
thus will have his sentence vacated under State v.
Stone. See State v. Dugar, 532 So. 2d 1387 (La.
1988) (Watson, J., concurring).
181
CLAIM XIV
RULE 905.9.1 OF THE LOUISIANA CODE OF
CRIMINAL PROCEDURE VIOLATES THE SIXTH AMEND-
MENT RIGHT TO A PUBLIC TRIAL BECAUSE IT MANDATES
THE SEALING OF SENTENCING REPORTS IN EVERY CASE
WITHOUT REGARD TO LESS RESTRICTIVE ALTERNATIVES.
Rule 905.9.1 of the Louisiana Code of Criminal
Procedure (Louisiana Supreme Court Rule 28) (the "Rule")
requires the Louisiana Supreme Court to review every death
sentence to determine, among other things, whether it "is
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant."339 The
Court reviews both a Capital Report and the Sentence
Report (collectively the "sentencing reports") to guide
its determination. See La. Code Crim. Proc. Ann. rule
905.9.1, § 3(a) (West 1984). Notwithstanding their
fundamental role in the sentencing process, both sentenc-
ing reports are mandatorily sealed from the public.
The sixth amendment provides that "(ijn all
criminal prosecutions the accused shall enjoy the right to
a. . . public trial." Article I, Section 16 of the
Louisiana Constitution similarly requires "a .. . public
- . trial." The public trial right extends to
sentencing reports, like those in the present case, that
are integral to the implementation of death sentences.
Access to such reports is required because it furthers the
"aims and interests" of the public trial right.
Rule 905.9.1 of the Louisiana Code of Criminal
Procedure violates Petitioner’s sixth amendment rights
because Louisiana’s interest in confidentiality cannot
justify the blanket sealing of sentencing reports in every
339. The Rule additionally requires the Court to determine
whether "the sentence was imposed under the influence
of passion, prejudice or any other arbitrary fac-
tors," and whether "the evidence supports the jury’s
finding of a statutory aggravating circumstance."
La. Code Crim. Proc. Ann. rule 905.9.1 (Supreme Court
Rule 28), § 1 (West 1984).
182
case in which the death penalty has been imposed. The
Rule is also unconstitutional because it does not require
the Louisiana Supreme Court to consider alternatives less
restrictive than sealing reports in their entirety, and
because it does not require specific findings justifying
the need for curtailing public access. For these reasons,
Petitioner’s death sentence should be vacated.
A. The Underlying Purposes Of The Right To
A Public Trial Demand That The Right
Attach To Reports Integral To The Capi-
tal Sentencing Process.
Public trials are an essential component of a
fair, effective criminal justice process. The Supreme
Court has determined that the sixth amendment right to a
public trial extends to those proceedings that implicate
the "aims and interests" of that guarantee. Waller v.
Georgia, 467 U.S. 39, 46 (1983).
The "aims and interests" test was developed in
Waller, where the Court held that the public trial right
applied to more than "the actual proof at trial," id. at
44, and specifically determined that the right to a public
trial prohibited the closing of a suppression hearing.
Id. at 40. After observing that the access right was
designed to enhance fact-finding and to avoid judicial and
prosecutorial misconduct, the Court concluded that "these
aims and interests" are implicated in a hearing to sup-
press wrongfully seized evidence. Id. at 46. Waller
thereby established that the purposes of the sixth amend-
ment determine the context in which it applies. Id. at
46; cf. Press-Ente ise Co. v. Superior Court Cal., 478
U.S. 1, 7 (1986) ("Press-Enterprise II") (public access
inquiry "cannot be resolved solely on the label we give
the event, i.e., ‘trial’ or otherwise .. .").
183
Li The "aims and interests" underlying
the public trial guarantee are impli-
cated by sentence reports submitted
in capital cases.
No reported decision has considered whether the
sixth amendment extends to sentencing reports submitted in
the capital sentencing context. However, the application
of the "aims and interest" test adopted in Waller es-
tablishes that these reports are so protected. Senten-
cing reports implicate each of the purposes underlying the
public trial right. 349
First, access would enhance fact-finding by
encouraging witnesses to come forward and by discouraging
perjury. See Waller, 467 U.S. at 46.341 Accurate fact-
finding is especially critical in capital cases, where the
finality of the punishment creates a greater need for re-
liability "in the determination that death is .. . appro-
priate .. . ina specific case." W on v. No
Carolina, 428 U.S. 280, 305 (1976) .342
340. The purposes of the public trial guarantee are
illuminated by the objectives of the related first
amendment right of access. See Press Enterprise II,
478 U.S. at 7 ("‘explicit Sixth Amendment right of
the accused is no less protective of a public trial
than the implicit First Amendment right of the press
and public’") (quoting Waller v. Georgia, 467 U.S.
39, 46 (1983)). The distinction between the two
guarantees is partially one of standing; the sixth
amendment right is personal to the defendant, while
the first amendment right inheres in the public and
press. Rovinsky v. McKaskle, 722 F.2d 197, 199 (5th
Cir. 1984). ,
341. See also Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 569 (1980); Rovinsky v. McKaskle, 722 F.2d
197, 199 (5th Cir. 1984).
342. Capital cases, for example, are the sole exception to
the general rule permitting the sentencer to exercise
unbridled discretion within a permissible statutory
range. See Furman v. Georgia, 408 U.S. 238 (1972).
Similarly, otherwise harmless state procedural rules
may violate the fourteenth amendment if employed in
Capital cases. See, e.g., Green v. Georgia, 442 U.S.
95 (1979) (due process clause was violated where
testimony "highly relevant" to a critical issue in
the sentencing phase was excluded under hearsay rule).
184
Second, access to sentencing reports in capital
cases ensures that reviewing courts will perform their
duties responsibly. See Estes v. Texas, 381 U.S. 532,
588-89 (1965) (Harlan, J., concurring) (public access
"embodies a view of human nature. .. that judges, law-
yers, witnesses and jurors will perform their respective
functions more responsibly in an open court than in secret
proceedings") .343 Rigorous public scrutiny guarantees a
defendant that a court will carefully consider all of his
social and economic circumstances before it recommends the
most irreversible of punishments. See In re Oliver, 333
U.S. at 270 (public opinion acts as restraint upon pos-
sible judicial abuse).
Third, applying the sixth amendment to capital
sentencing reports assures the public that the decision to
impose the death penalty is informed by adherence to fair
procedures. See Press-Enterprise Co. v. Superior Court
Cal., 464 U.S. 501, 508 (1984) (" s-Ent is al
"Fairness and the appearance of fairness" is an objective
of both the sixth amendment and of procedures governing
the imposition of the death penalty. See Waller, 467 U.S.
at 4614 (sixth amendment public trial guarantee ensures
fair trial); Woodson v. North Carolina, 428 U.S. 280, 305
(1976) (compelling need for reliable procedures in capital
cases). As the United States Court of Appeals for the
Ninth Circuit noted in United States v. Schlette, 842 F.2d
1574 (9th Cir. 1988), where it extended the common law
right of access to a sentence report in a non-capital
case, "public examination, study, and comment is essential
343. See also In re Oliver, 333 U.S. 257, 270 (1949)
("(tjhe knowledge that every criminal is subject to
contemporaneous review in the form of public opinion
is an effective restraint on possible abuse") ;
Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1978)
(open trial ensures defendant "‘public may see he is
fairly dealt with and not unjustly condemned’").
185
aa
if the corrections process is to improve." Id. at 1583
(quoting CBS v. United States Dist. Court, 765 F.2d 823,
826 (9th Cir. 1985)).
Fourth, public access to Rule 905.9.1 sentencing
reports will permit a capital defendant effectively to
show that his death sentence is "disproportionate to the
penalty imposed in similar cases, considering both the
crime and the defendant." See Rule 905.9.1, section 1.
Access to other capital sentencing reports is critical to
enable a capital defendant to compare his background and
crime with the background and crimes informing other death
sentences. See Rule 905.9.1, section 3(b).344
B. Rule 905.9.1 Of The Louisiana Code Of
Criminal Procedure Violates The Sixth
Amendment Public Trial Guarantee.
Because the sixth amendment guarantee attaches
to sentencing reports, this Court must then consider
whether that right has been violated. The applicable test
is set forth in Waller v. Georgia:
344. Judicial decisions to seal sentencing reports have
historically been based upon the perceived need for
confidentiality. See ite ates v. Cha
indus., 711 F.2d 1164, 1172-74 (2d Cir. 1983);
United States v. Walker, 491 F.2d 236, 238 (9th
Cir.), cert. denied, 416 U.S. 990 (1974). Several
courts have, however, recently questioned the need
for secrecy in assuring the quality of sentencing
reports. See Schlette, 842 F.2d at 1580 (discussing
revision of Federal Rule Crim. P. 32(c)); Berry v.
Department of Justice, 733 F.2d 1343, 1355 (9th Cir.
1984).
Louisiana makes its sentencing reports available to
defendants despite the attendant compromise to
confidentiality. Whatever the marginal cost to
confidentiality of extending the access right to
others, it is outweighed by the benefits of
subjecting capital sentence reports to the public
trial guarantee. See discussion supra. Indeed,
the Court of Appeals for the Ninth Circuit, in
holding a sentence report discoverable, noted that
because Fed. R. Crim. P. 32(c) already mandates
disclosure of significant portions of the report to
the defendant, "({i]f any chilling of sources were to
occur, this disclosure would certainly [have]
trigger(ed] it." Berry, 733 F.2d at 1355.
186
The presumption of openness may be overcome only
by an overriding interest based on findings that
closure is essential to preserve higher values
and is narrowly tailored to serve that interest.
The interest is to be articulated along with
findings specific enough that a reviewing court
can determine whether the closure order was
properly entered.
467 U.S. at 45 (emphasis added) (quoting Press-Enterprise
i, 464 U.S. at 510); see also Jones v. Henderson, 683 F.
Supp. 917, 923 (E.D.N.Y. 1988) (citing Waller factors). A
party need not demonstrate specific prejudice to obtain
relief for a sixth amendment violation. Waller, 467 U.S.
Li Louisiana’s interest in confident-
iality does not justify a per se
rule sealing sentencing reports in
every capital case.
Although Louisiana may have an interest in
maintaining the confidentiality of sentencing reports,
that interest cannot justify a per se rule sealing reports
in every case in which the death penalty has been imposed.
The Supreme Court has repeatedly held that the public
right to access proscribes the imposition of blanket
closure rules. In ! obe Newspaper v. Superior Court, 457
U.S. 596, 602-03 (1982), the Court considered whether a
Massachusetts statute which excluded members of the
general public from trials of specified sexual offenses
violated the first amendment public access right. The
Court acknowledged that Massachusetts’ asserted interest
for the exclusion -- to safeguard the physical and
345. See also Rovinsky, 722 F.2d at 201; Douglas v.
Wainwright, 714 F.2d 1532, 1542 (11th Cir. 1983),
vacated on other grounds, 486 U.S. 1206 (1984);
United States v. Kobli, 172 F.2d 919, 921 (3rd Cir.
1949). The Court of Appeals for the Third Circuit
has noted that a prejudice requirement "would in most
cases deprive (the defendants] of the [public trial]
guarantee, for it would be difficult to envisage a
case in which he would have evidence available of
specific injury." Bennett, 419 F.2d at 608; accord
Waller, 467 U.S. at 49 n.9.
187
psychological well-being of a minor -- was a compelling
one. Id. at 607. However, that interest could not
justify a mandatory closure rule because "it is clear that
the circumstances of the particular case may affect the
significance of the interest." Id. at 608. Of critical
importance, the Court added that a "trial court can
determine on a case-by-case basis whether closure is
necessary... ." Id.
Similarly, in Press-Enterprise I, 464 U.S. at
510-11, the Supreme Court rejected a state court’s
reliance upon a juror’s privacy interest to justify a six-
week closure of voir dire proceedings. It noted that
absent a showing that an open proceeding in fact threate-
ned the asserted interest, it was "not possible to con-
clude that closure was warranted." Id.
Finally, in United States v. Schlette, 842 F.2d
1574, 1583 (9th Cir. 1988), the Court of Appeals for the
Ninth Circuit applied the common law access right in
ordering disclosure of a sentencing report. Noting that
the state’s interest in confidentiality did not apply to
the case before it, the court asserted that "confidential-
ity is not some talismanic utterance that can justify a
refusal to disclose the contents of a presentence report
when a sufficient showing supporting disclosure has been
made." Id. The court concluded that "‘rijf the reasons
for maintaining [confidentiality] do not apply at all ina
given case, or apply only to an insignificant degree, the
party seeking disclosure should not be required to de-
monstrate a compelling need.’" Id. (quoting U.S. Indus.
v. United States Dist. Court, 345 F.2d 18, 21 (9th Cir.)
cert. denied, 382 U.S. 814 (1965)).
Rule 905.9.1 violates Petitioner’s sixth amend-
ment right to a public trial guarantee because it fails to
188
require an inquiry as to whether Louisiana has an "over-
riding interest" in confidentiality that is implicated in
each particular case. Cf. Globe Newspaper, 457 U.S. at
607. Instead, the rule impermissibly mandates the sealing
of sentencing reports in every case regardless of whether
closure is necessary to serve the state’s interest. Cf.
id. at 608.
The impropriety of a blanket rule is demon-
strated by the present case, where Louisiana does not have
an overriding interest in confidentiality sufficient to
overcome Petitioner’s public trial right. Petitioner’s
sentencing report contained a summary of his juvenile
record, a short biography, excerpts from psychological
evaluations, and portions of interviews with him and his
family. His assertion of his public trial right defeats
any interest Louisiana might have in maintaining the
confidentiality of interviews, psychiatric examinations,
and biographic information pertaining to him.
Because the state’s interest in confidentiality
cannot justify the sealing of sentencing reports in every
capital case, Rule 905.9.1 is unconstitutional.
Zs Rule 905.9.1 is not narrowly tail-
ored to serve the State’s interest.
Rule 905.9.1 is a per se rule, one not narrowly
tailored to achieve Louisiana’s interest in confidential-
ity. Therefore, it fails to meet the second Waller
condition for curtailing access.
The public access guarantee prohibits rules like
905.9.1, absent consideration of less restrictive
alternatives to blanket closure. For example, in Globe
Newspaper, the trial court struck down a Massachusetts
statute that did not provide courts with an opportunity to
consider whether closure was required. 457 U.S. at 609.
189
The Supreme Court affirmed, concluding that "§ 16A cannot
be viewed as a narrowly tailored means of accommodating
the State’s asserted interest." Id. It added:
That interest could be served just as well by
requiring the trial court to determine on a
case-by-case basis whether the State’s legiti-
mate concern for the well-being of the minor
victim necessitates closure. Such an approach
ensures that the constitutional right of the
press and public to gain access to criminal
trials will not be restricted except where
necessary to protect the State’s interest.
Id. Similarly, the Press-Enterprise I Court declared the
trial court’s blanket closure of voir dire proceedings to
be unconstitutional based in part upon the court’s failure
to consider whether alternatives were available to protect
the privacy interests of prospective jurors. 464 U.S. at
Sil.
Thus, because it does not require the Louisiana
Supreme Court to consider alternatives less restrictive
than the sealing of sentencing reports in their entirety,
Rule 905.9.1 is unconstitutional.
<i Rule 905.9.1 does not require the
Louisiana Supreme Court to make find-
ings explaining the need for a sealed
sentence report.
The final Waller criterion requires a court to
make written findings sufficient to justify the curtail-
ment of the public trial right. Waller, 467 U.S. at 48.
Because Rule 905.9.1 fails to require such written
findings, it is unconstitutional.
190
CONCLUSION
For the foregoing reasons, Petitioner prays:
1. That he be granted a stay of execution
pending:
(a) a full evidentiary hearing on the factual
allegations contained in his Application for Post-
Conviction Relief; and
(b) final disposition of this matter;
2. That he be granted an evidentiary hearing on
the factual allegations contained herein and that Bruce
Lynn, Secretary of the Department of Corrections, State of
Louisiana, and/or Larry D. Smith, Warden, State Prison,
Angola, Louisiana, be ordered to produce the body of
Petitioner, Dalton Prejean, in this court at the hour and
the date fixed for hearing in this matter;
3. That the State of Louisiana, through J.
Nathan Stansbury, District Attorney, Parish of Lafayette
and the Department of Corrections, through Bruce Lynn,
show cause on a date and hour fixed by this court why:
(a) the judgment of conviction should not
be set aside and vacated and Petitioner be given a
new trial;
(b) the sentence of death imposed upon
Petitioner as a result of the jury recommendation and
trial and Louisiana Supreme Court affirmance should
not be abolished, vacated, and expunged and a new
capital sentencing hearing ordered; and
192
4. That the court grant Petitioner all other
relief to which he may be entitled.
—e eee
3/16 / BF
Date/Month/Year
Respectfully submitted,
John H. Hall
Andrea J. Robinson
DEBEVOISE & PLIMPTON
875 Third Avenue
New York, New York
10022
(212) 909-6000
Mitchell A. Karlan
200 Park Avenue
New York, New York
10166
(212) 906-7900
Ken Wile
Mayer Brown & Platt
190 South Lasalle St.
Chicago, Illinois
60603
Attorneys for Petitioner
Dalton Prejean
Of Counsel:
Samuel S. Dalton
2001 Jefferson Highway
Jefferson, Louisiana 70121
L933
DALTON PREJEAN,
DOCKET No.
Petitioner,
FOURTH JUDICIAL DISTRICT COURT
V.
LARRY D. SMITH, PARISH OF OUACHITA
ee ee ee ee eee ee ee ee eee”
Respondent. STATE OF LOUISIANA
PEE RPERESESE SE ESE SESE SESE SESE SESE SESE ERE EERE SEE EEE REL E SE ES
ROPOSED ORD NG
PETITIONER DALTON PREJEAN’S
APPLICATION FO -CONVICTION
F_ AND FOR S O H
GREAT WRIT OF HABEAS CORPUS AND FOR
EVIDENTIARY HEARING AND STAY OF EXECUTION
Considering the above and foregoing Application
for Post-conviction Relief and for Issuance of the Great
Writ of Habeas Corpus and for Evidentiary Hearing and Stay
of Execution of the sentence of death imposed upon
Petitioner by the Fourth Judicial District Court (Ouachita
Parish) of the State of Louisiana on May 11, 1978 and
scheduled for October 20, 1989, between the hours of 12:00
a.m. and 3:00 a.m.,
IT IS ORDERED THAT the Application for a Stay
of Execution is hereby granted, and that Petitioner’s
execution is hereby stayed pending a full evidentiary
hearing on the claims set forth in Petitioner’s
Application for Post-Conviction Relief and final
disposition of this matter.
IT IS FURTHER ORDERED THAT Petitioner be granted
an evidentiary hearing on the factual allegations
contained in his Application for Post-Conviction Relief.
IT IS FURTHER ORDERED THAT Petitioner remain in
the custody of the Warden of the Louisiana State
Penitentiary at Angola, Louisiana, pending further order
of this Court.
IT IS FURTHER ORDERED THAT Bruce Lynn, Secretary
of the Department of Corrections, State of Louisiana,
and/or Larry D. Smith, Warden, State Prison, Angola,
Louisiana, be ordered to produce the body of Petitioner,
Dalton Prejean, in this court at the hour and the date
fixed for hearing in this matter.
IT IS FURTHER ORDERED THAT the State of
Louisiana, through J. Nathan Stansbury, District Attorney,
Paris of Lafayette and the Department of Corrections,
through Bruce Lynn, show cause on a date and hour fixed by
this court why: (a) the judgment of conviction should not
be set aside and vacated and Petitioner be given a new
trial; and (b) the sentence of death imposed upon
Petitioner as a result of the jury recommendation and
trial and Louisiana Supreme Court affirmance should not be
abolished, vacated, and expunged and a new capital
sentencing hearing ordered.
IT IS FURTHER ORDERED THAT the Clerk shall give
immediate telephonic and telegraphic notice to Bruce
Lynn, Secretary, Louisiana Department of Corrections; to
William J. Guste, Jr., Attorney General of the State of
Louisiana; and to Buddy Roemer, Governor of the state of
Louisiana, that the Petitioner’s execution is stayed by
order of this Court; and that a certified copy of this
order shall be subsequently served upon these persons.
Lafayette, Louisiana this ____ day of October,
1989.
AFFIDAVIT OF PETITIONER DALTON PREJEAN
STATE OF LOUISIANA
PARISH OF WEST FELICIANA
~—” @¢@¢ =
Dalton Prejean, being first duly sworn, says that he has
read the foregoing application for post-conviction relief and
swears or affirms that all of the information therein is true and
correct.
ayy Fine, re
Signature of’ Petitioner
SWORN TO AND SUBSCRIBED before me on this 3
day of C4 IZ, . if 9
or the State of
lic in and
Louisiana.
CERTIFICATE OF SERVICE
I hereby certify that on October Ss, 1989, a
copy of the foregoing Petitioner’s Application For Post-
Conviction Relief and for Issuance of the Great Writ of
Habeas Corpus and for Evidentiary Hearing and Stay of
Execution was served, via by Federal Express, upon the
following:
J. Nathan Stansbury, Esq.
Court House Building
Lafayette, Louisiana 70501
Larry D. Smith, Warden
Louisiana State Penitentiary
Angola, Louisiana
In addition, a courtesy copy was sent, via
Federal Express, to the chambers of The Honorable Hugh E.
Brunson, Judge for the Fifteenth Judicial District
(Go
ANDREA J. ROBINSON
(Lafayette Parish).
Dated: October 3, 1989
