JEFFREY DEVAN LEONARD,
Petitioner,
v.
THOMAS SIMPSON,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI
MARGUERITE NEILL THOMAS DONALD B. VERRILLI, JR.*
DEPARTMENT OF PUBLIC ADVOCACY IAN HEATH GERSHENGORN
100 Fair Oaks Lane, Suite 301 JOSHUA M. SEGAL
Frankfort, KY 40601 SHARMILA SOHONI
(502) 564-3948 JENNER & BLOCK LLP
601 Thirteenth Street, N.W.
KATHLEEN KALLAHER SCHMIDT Washington, DC 20005
SCHMIDT LAW OFFICE (202) 639-6000
P.O. Box 218
Shepherdsville, KY 40165
(502) 955-6014
April 2, 2007 * Counsel of Record
CAPITAL CASE
QUESTION PRESENTED
All of the federal judges below concluded that
petitioner’s counsel performed in a constitutionally deficient
manner at petitioner’s capital sentencing hearing. A divided
panel of the Sixth Circuit nonetheless reversed the district
court’s grant of habeas relief on the ground that petitioner
had failed to demonstrate prejudice under Strickland v.
Washington. The Sixth Circuit then reached “a seven to
seven stalemate” regarding the petition for rehearing en banc.
The question presented is as follows:
Whether, as the Sixth Circuit has repeatedly held in
conflict with the decisions of at least three other Circuits, a
habeas petitioner cannot show prejudice under Strickland
unless the evidence that competent counsel would have
presented differs in a substantial way - in strength and
subject matter - from the evidence actually presented at
sentencing, so that the failure to present a constitutionally
adequate mitigation case is excused because the jury heard
aspects of that case in skeletal form, principally from the
defendant himself.
ii
PARTIES TO THE PROCEEDING
Pursuant to Supreme Court Rule 24.1(b), the following
identifies all of the parties before the United States Court of
Appeals for the Sixth Circuit:
Jeffrey Devan Leonard was the appellee and cross-
appellant below. In the proceedings thus far, Mr. Leonard
was mistakenly identified as James Earl Slaughter, which is
not his real name. Phil Parker, Warden for the Kentucky
State Penitentiary, was appellant and cross-appellee below.
Thomas Simpson is now the Warden for the Kentucky State
Penitentiary, and thus he is named as respondent here.
ili
TABLE OF CONTENTS
QUESTIONS PRESENTED ......sesssessssesssseessseesseeessesessesesneeess i
PARTIES TO. THE PROCEEDING ....scsssssrsessesosnsssesnvvsresoensedl
TABLE OF CONTENTS jssssssesssssvsscveissvsosevsssnvvevesieoversevesrees Ll
TABLE OF AUTHORITIES
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW..
JURISDICTION...
CONSTITUTIONAL AND STATUTORY
PROVISIONS ..
STATEMENT OF THE CASE..
A. Introduction
B. Trial and Sentencing Proceedings.
C. State Post-Conviction ProceedingS .........cessesseseeeeseene 5
1, The Evidetitiary: Hearing eeesccsssssssrarersnsrenenss 0
2. The Decision of the State Post-Conviction
Trial Court... sesuisewwes sasvceseresewsiseeeD
3. The Kenly Supreme C Court Post-Conviction
Decision... anne sesseeessesesseessseessseessee LO
D. District Court Proceedings. coveocrevavasasantosvesusetsosusenievseets 11
E. Sixth Circuit Proceedings
REASONS FOR GRANTING THE PETITION
CONCLUSION \vsssessssreresrseuctsenpsacuereenceny
iv
Appendix A.
Opinion, Slaughter v. Parker, No. 01-6359 eth
Cir. June 13, 2006)... seeeseeseeneene seteetesteeenee LO
Appendix B
Memorandum Opinion and Order, Slaughter v.
Parker, No. 3:00CV-P227-C (W.D. . Ky. Sept
27, 2001)... sages sane 008
Appendix C
Memorandum Opinion, Slaughter v. Kentucky,
96-SC-49-MR (Ky. April 22, 1999)... sess 2068
Appendix D
Findings and Conclusions, Kentucky v. Slaughter,
NO. 83CR0387 (D. Ky. Jefferson Cir. Ct.
June 22, 1995) ... . 225a
Appendix E
Opinion, Slaughter v. Kentucky, No. 84-SC-272-
MR (Ky. Nov. 5, 1987) ...ceceeesecsesseesseeseesennes 231a
Appendix F
Denial of Rehearing, Slaughter v. Parker, No. 01-
6359 (6th Cir. Nov. 1, 2006) .....eeessecseeseereene 2038
Appendix G
Constitutional and Statutory Provisions Involved...... 259a
Vv
TABLE OF AUTHORITIES
CASES
Anderson v. Sirmons, 476 F.3d 1131 (10th Cir. 2007) .....24
Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998).............24
Broom v. Mitchell, 441 F.3d 392 (6th Cir. 2006), cert.
denied, 127 S. Ct. 1376 (2007) wesc 14, 18, 26
Brown v. Myers, 137 F.3d 1154 (9th Cir. 1998) .......0...25
Buckner v. Polk, 453 F.3d 195 (4th Cir. 2006), cert.
denied, S.Ct.__, 2007 WL 73617 (U.S. Mar. 19,
Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003)............26
Clark v. Mitchell, 425 F.3d 270 (6th Cir. 2005).......... 14, 18
Clemons v. Mississippi, 494 U.S. 738 (1990) .....ceeeeeeee 27
Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005),
petition for cert. filed, 75 U.S.L.W. 3457 (U.S. Feb.
14, 2007) (No. 06-1142) ssccsssisssssscsseesesssssvecsevorsevieseeeces 27
Douglas v. Woodford, 316 F.3d 1079 (9th Cir. 2003) ......24
Eddings v. Oklahoma, 455 U.S. 104 (1982)............... 19, 27
Foster v. Johnson, 293 F.3d 766 (5th Cir. 2002) .............21
Hall v. Head, 310 F.3d 683 (11th Cir. 2002) ween 22
Hill v. Mitchell, 400 F.3d 308 (6th Cir. 2005), cert.
denied, 126 S. Ct. 744 (2005) oes 14, 18, 28
Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006
Jacobs v. Horn, 395 F.3d 92 (3d Cir. 2005), cert.
denied, 126 S. Ct. 479 (2005) os esssecsseecssesenneesneesseenee 23
Jermyn v. Horn, 266 F.3d 257 (3d Cir. 2001)... ee 23
vi
Marshall v. Cathel, 428 F.3d 452 (3d Cir. 2005), cert.
denied, 126 S. Ct. 1587 (2006) ..
Mathis v. Dretke, 124 Fed. Appx. 865 (5th Cir. 2005),
cert. denied, 545 U.S. 1131 (2005) vce 21
Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001).. 23, 26
McHone v. Polk, 392 F.3d 691 Lo Cir. bal cert.
denied, 126 S. Ct. 94 (2005) ... rane ween 20
Moody v. Polk, 408 F.3d 141 a Cir. 2005, cert.
denied, 126 S. Ct. 1060 (2006) ... veeseceseestveveaveeweae 2A
Moore v. Parker, 425 F.3d 250 Gie Cir. ) cert.
denied, 127 S. Ct. 557 (2006) ....esesseessseerseesneeess 14, 18
Neal v. Puckett, 286 F.3d 230 (5th Cir. 2002)..... wwe DL
Outten v. Kearney, 464 F.3d 401 (3d Cir. 2006)... wi Dd
Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated on
other spon yA Atkins v. me Ningint 536 U.S. 304
(2002)... esses esses . 19, 27
Rompilla v. Beard, 545 U.S. 374 (2008)... vee iy, 18, 28
Skipper v. South Carolina, 476 U.S. 1 (1986) . . 16, 25
Smith v. Mitchell, 348 F.3d 177 (6th Cir. 2003) .18
Smith v. Mullin, 379 F.3d 919 (10th Cir. 2004)... wie 24
Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004).....23
Strickland v. BASS 466 U.S. 668
(1984)... osc ss ..3, 4, 10, 11, 17
Tennard v. Dretke, 542 U.S. 274 4 (2004)... seg hl
United States v. Gleason, 616 F.2d 2 Od ci Cir. 1 1979) oo
Wiggins v. Smith, 539 U.S. 510 (2003).......... 13, 16, 17, 28
Williams v. Taylor, 529 U.S. 362 (2000) ..12, 16, 18, 28, 29
vii
STATUTES
28'U:S.6. § 1254(1) sssssssessssnvsasnsneinnasennennarety 1
28 U‘S.C:§ 2254(d) assassin 11, 12,13
MISCELLANEOUS
Andrew Wolfson, Radolovich to Give Up License:
Perjury Charge Came in Death-Penalty Case, The
Courier-Journal, Feb 6, 2007, at http:// www.courier-
journal.com/apps.pbcs.dll/article?A ID =20077020606
0446 icsssssesccewsscesvsexsvesnvoceavesenvevevcavevaseeccasucevareinseseestveeaty 6
PETITION FOR WRIT OF CERTIORARI
Petitioner Jeffrey Devan Leonard respectfully requests
this Court to issue a writ of certiorari to review a decision of
the United States Court of Appeals for the Sixth Circuit.!
OPINIONS BELOW
The decision of the Sixth Circuit is reported at 450 F.3d
224, and is reprinted in the Appendix to the Petition (“Pet.
App.”) at 1a. The Sixth Circuit's order denying rehearing
and rehearing en banc is reported at 467 F.3d 511, and is
reprinted at Pet. App. 253a. The decision of the U.S. District
Court for the Western District of Kentucky is reported at 187
F, Supp. 2d 755, and is reprinted at Pet. App. 50a.
JURISDICTION
The Sixth Circuit issued the decision denying rehearing
and rehearing en banc on November 1, 2006. Pet. App. 253a.
Justice Stevens extended the time for filing the petition for
certiorari to March 31, 2007 (No. 06A716). The jurisdiction
of the Court is invoked pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
The relevant constitutional and statutory provisions are
reproduced at Pet. App. 259a.
STATEMENT OF THE CASE
A. Introduction.
This petition seeks review of what five judges of the
Sixth Circuit decried as a “new chapter in our death penalty
1 Petitioner was tried below under the name James Earl Slaughter. His
real name is Jeffrey Devan Leonard, a fact that his trial counsel failed to
discover. The petition refers to Mr. Leonard by his real name throughout.
2
jurisprudence,” Pet. App. 254a: a case in which “a 20-year
old, African American male with no prior violent felony
history was sentenced to death by a jury that did not know
his true background, family and social history, or even his
true name.” Pet. App. 196a.
The federal judges below all agreed that petitioner Jeffrey
Leonard received shockingly inadequate representation at his
capital sentencing hearing. Leonard's trial counsel admitted
that he did nothing to prepare for sentencing beyond making
a single phone call to one of Leonard’s distant relatives. The
entire mitigation case comprised testimony from a state-
appointed psychologist (who had examined Leonard not for
purposes of aiding the defense but at the request of the trial
court to assess his competency to stand trial) and from
Leonard — himself. State post-conviction proceedings
revealed, however, that a powerful mitigation case was
readily available had counsel made even minimal efforts to
develop it. At the state post-conviction hearing, Leonard’s
mother, brothers, and other relatives - none of whom counsel
had contacted for trial - described a nightmarish childhood of
physical abuse and privation, and provided passionate pleas
to spare Leonard’s life. In addition, independent mental
health experts provided testimony establishing both that the
State’s psychologist’s negative evaluation of Leonard was
medically insupportable and that Leonard suffered from a
cognitive disorder due to a childhood brain injury, as well as
a paranoid personality disorder resulting from his difficult
upbringing. On the basis of the evidence that Leonard's trial
counsel failed to develop and introduce, the federal district
court granted habeas relief on Leonard’s Sixth Amendment
claim and ordered a new sentencing proceeding.
A divided Sixth Circuit panel reversed. The panel
unanimously held that trial counsel’s performance was
woefully inadequate under the standards for attorney
3
performance set forth in Strickland v. Washington, 466 U.S.
668 (1984), and that the contrary decision of the Kentucky
courts was unreasonable. Pet. App. 12a-13a. In the Sixth
Circuit, however, for a petitioner to demonstrate Strickland
prejudice, he must present evidence that differs in a
substantial way - in strength and subject matter - from the
evidence presented at the flawed sentencing hearing.
Because the sentencing jury leamed some of Leonard’s
personal history from Leonard himself, and because the state-
appointed competency expert testified about Leonard’s
mental and emotional condition, the panel majority held that
Leonard failed to demonstrate prejudice.
Leonard then sought panel and en banc rehearing.
Rehearing en banc was denied because the Sixth Circuit
reached a “seven to seven stalemate regarding the en banc
petition.” Pet. App. 254a. Dissenting from the denial of
review, Judge Cole (joined by four other judges) stated:
We are uneasy about executing anyone sentenced to
die by a jury who knows nearly nothing about that
person. But we have allowed it. We are also uneasy
about executing those who commit their crime at a
young age. But we have allowed that as well. We are
particularly troubled about executing someone who
likely suffers brain damage. We rarely, if ever, allow
that - especially when the jury is not afforded the
opportunity to even consider that evidence. Jeffrey
Leonard, known to the jury only as “James
Slaughter,” approaches the execution chamber with
all of these characteristics. Reaching this new chapter
in our death-penalty history, the majority decision
cannot be reconciled with established precedent. It
certainly fails the Constitution.
Id.
4
Plenary review is manifestly appropriate. The Sixth
Circuit’s insistence that the new evidence offered to
demonstrate prejudice differ not just in degree but in kind
from the evidence previously presented squarely conflicts
with the law of at least three other Circuits, and reflects a
persistent confusion in the Circuits regarding the proper
analysis of prejudice under Strickland. The fate of Jeffrey
Leonard should not depend on the happenstance of the
Circuit in which he must raise his Sixth Amendment claims.
Moreover, this is the time and the case for review. Because
the deficient performance of trial counsel is manifest, the
prejudice issue is squarely presented and, as the seven-to-
seven stalemate in the Sixth Circuit suggests, the facts of this
case provide an especially egregious illustration of the
consequences of the Sixth Circuit’s flawed standard.
B. Trial and Sentencing Proceedings
Jeffrey Leonard was convicted of capital murder and
robbery in the first degree for a stabbing committed when he
was 19 years old (he was 20 years old at the time of trial).
He had no prior record of criminal violence. Pet. App. 196a.
At sentencing, the jury heard only testimony from
Leonard himself and from Dr. Phillip Johnson, an employee
of the Commonwealth who had previously prepared a court-
ordered competency evaluation of Leonard. Trial counsel
introduced Dr. Johnson’s testimony even though Dr. Johnson
had concluded in his earlier written report that petitioner
suffered from borderline personality disorder (BPD) with
antisocial traits, was prone to violence, and was an unlikely
candidate for rehabilitation.
In his testimony during the sentencing hearing, Leonard
sought to explain that he had acted only as an accomplice,
that there had been no plan to murder the victim, and that the
actual killing had been done by another person (whom
petitioner identified as “Red”). Pet. App. 62a. He was,
5
however, unable to provide any corroborating information
regarding the identity of this person. Pet. App. 160a-161a.
Leonard also testified about his life history, stating that he
had left home at age twelve to escape beatings by his mother,
that he dropped out of school in the seventh grade, and that
he had used illegal drugs for a long period of time prior to the
murder. He also testified that he had led the nomadic
existence of a drifter, supporting himself (and his drug habit)
through purse snatching and car theft. Pet. App. 61a-62a.
Relying on the evaluations he had previously conducted
to determine whether Leonard was competent to stand trial,
Dr. Johnson testified that Leonard had BPD with antisocial
traits. His assessment was that Leonard is predisposed to
violence, is prone to gross errors in judgment resulting from
a failure to appreciate the relationship between cause and
effect, and has limited prospects for rehabilitation. Overall,
Dr. Johnson described Leonard as a person who led a
nomadic, lawless lifestyle who was likely to commit violence
in the future. Pet. App. 62a-63a.
The jury found the existence of only a single aggravating
factor - that the murder occurred in the course of a robbery.
The jury nevertheless sentenced petitioner to death. On
direct appeal, the Supreme Court of Kentucky affirmed. Pet.
App. 231a.
C. State Post-Conviction Proceedings
1. The Evidentiary Hearing
Leonard filed a timely petition for post-conviction
review. The state post-conviction court then held a three-day
evidentiary hearing that focused on whether Leonard's trial
counsel had provided effective assistance. Pet. App. 225a.
Evidence regarding trial counsel’s performance. The
evidence of deficient performance on the part of Leonard’s
trial counsel, Ferdinand Radolovich, was overwhelming.
6
Although petitioner had been tried, convicted, and sentenced
under the name of James Earl Slaughter, petitioner's real
name is Jeffrey Devan Leonard, a fact that trial counsel
apparently failed to notice, even though petitioner's real
name was contained in the prosecution’s file and in the trial
court record in four different places. Pet. App. 192a.
Radolovich testified at the hearing that he had substantial
experience litigating capital cases, including four capital
cases while employed as an assistant district attorney in New
York. Pet. App. 64a. That testimony was false. In fact,
Radolovich had no previous experience litigating capital
cases. Radolovich was subsequently indicted for perjury on
the basis of this false testimony, see Pet. App. 4a n.1, and he
was eventually forced to surrender his license to practice law
as part of a settlement of the perjury charges.”
Radolovich acknowledged at the hearing that he had
devoted 99% of his effort to preparing for the guilt/innocence
phase of the trial. He did not even begin to prepare for
sentencing until after the jury returned a guilty verdict on the
murder charge. The sum total of his preparation for the
sentencing phase consisted of a single phone call to
Leonard’s elderly aunt. Although he concluded that the
aunt’s testimony would not be helpful, Radolovich never
asked the aunt whether she knew of any other family or
friends who might be able to provide information or
testimony. Pet. App. 193a.
Beyond that single phone call, Radolovich did nothing.
Although Leonard ultimately testified at sentencing in his
own defense, Radolovich did not prepare him in advance for
that testimony. Similarly, although Radolovich called Dr.
2 See Andrew Wolfson, Radolovich to Give Up License: Perjury Charge
Came in Death-Penalty Case, The Courier-Journal, Feb 6, 2007, at http://
www.courier-joumnal.com/apps.pbcs.dll/article?A ID =200770206060446.
7
Johnson to testify, Radolovich did not prepare him in
advance. Most of Dr. Johnson’s testimony affirmatively
harmed Leonard’s prospects of avoiding death - as
Radolovich later acknowledged, Pet. App. 64a-65a, and as
would have been obvious from even a cursory review of Dr.
Johnson's written competency evaluation. Radolovich made
no effort to secure an independent expert who could provide
mental health testimony in mitigation, a course of action that
was not the result of reasoned strategic judgment, but instead
reflected Radolovich’s (erroneous) belief that funds were
unavailable for that purpose. Pet. App. 197a. Finally,
Radolovich made no effort to obtain Leonard's birth, school,
or medical records. Pet. App. 65a.
Evidence regarding prejudice. Leonard’s _post-
conviction counsel presented a wealth of evidence detailing
the mitigation case that was readily available to competent
trial counsel. Post-conviction counsel introduced testimony
from Leonard’s mother, two brothers, and other relatives who
lived nearby in Louisville at the time of the trial, as well as
the testimony of (among others) three psychologists and a
social worker. Pet. App. 66a-70a.
The evidence provided by family members - all of whom
testified that they would gladly have testified at the
sentencing hearing had they been asked - documented a
childhood of physical abuse and privation. Leonard’s
mother, Mary Moon, testified that she gave birth to petitioner
when she was fifteen years old and unmarried. Petitioner’s
father was killed approximately one month after Leonard was
bom. Moon had two other sons by different fathers. One of
her husbands, to whom she was married for more than seven
years, was an abusive alcoholic. Moon left him after an
incident in which he fired a shotgun at Leonard, then age
eight, as Leonard ran out of the family home carrying his
four-year-old brother. Pet. App. 67a.
8
To support her children, Moon worked two jobs and was
typically absent from the home from 7:30 a.m. until 10 p.m.
Most of the time the children had to fend for themselves.
Moon admitted that she “whipped the devil out of my
children” as a form of discipline. She also testified that when
Leonard was five, he suffered a serious head injury, which
was not properly treated. Pet. App. 67a-68a.
Two of Leonard’s brothers provided further detail on
their childhood circumstances, describing physical abuse that
included routine beatings with electric cords, belts, braided
switches, and brooms. Testimony at the hearing confirmed
that Leonard had “scars over all his body,” consistent with
the beatings his family members had described. Pet. App.
40a-41a. One scar reflected a laceration so deep that it cut
through the underlying muscle. Id. at 41a. The brothers’
testimony also revealed that their mother would occasionally
confine the younger children to their rooms with nothing to
eat. Notably, and in sharp contrast with the picture painted at
trial, petitioner would find ways to get food to them. Id. at
69a. All of the family members testified that they loved
petitioner and did not wish to see him die. Id.
Dr. Eric Engum, a clinical psychologist, testified that he
had performed a neuropsychological evaluation of Leonard.
He diagnosed Leonard as having attention deficit disorder,
along with difficulties in learning and acquiring new
information. His specific diagnosis was “cognitive disorder,
not otherwise specified.” Pet. App. 70a. He determined that
this cognitive disorder arose because of a depressed skull
fracture that injured the right frontal lobe of Leonard’s brain.
Sixth Circuit J.A. 375-76. As confirmed by the testimony of
Dr. Gary Kearl, a medical doctor, the failure to treat the
depressed skull fracture could have resulted in brain damage
and “subsequent decreased reasonability.” Pet. App. 41a;
Sixth Circuit J.A. 553.
9
The testimony of Dr. Engum directly refuted the negative
evaluation of Leonard that Dr. Johnson had presented at
sentencing. Dr. Engum administered the Minnesota
Multiphasic Personality Inventory (MMPI), which he
described as an absolute prerequisite to a competent forensic
examination. Dr. Engum noted that Dr. Johnson was unable
to administer the MMPI to Leonard, and instead relied on the
Rorschach Ink Blot Test as a diagnostic tool. Dr. Engum
explained that a Rorschach test would not provide a valid
basis for Dr. Johnson’s diagnosis of BPD with antisocial
traits. Dr. Engum concluded that there was no basis for such
a diagnosis, and he disputed Dr. Johnson’s conclusion that
Leonard was an unlikely candidate for rehabilitation.
Another clinical psychologist, Dr. Eric Drogin, likewise
testified that Dr. Johnson’s analysis was insufficient to
support his diagnostic conclusions. Pet. App. 74a.
Lane Veltkamp, a licensed clinical social worker who
performed a psychosocial evaluation of Leonard, agreed that
Leonard was capable of rehabilitation. She testified that
Leonard's upbringing made Leonard extremely distrustful
and unable to form close attachments to others. She also
testified, however, that his emotional and psychological
difficulties could be overcome with appropriate treatment.
Pet. App. 74a.
2. The Decision of the State Post-Conviction Trial
Court
The state post-conviction trial court described the
mitigation case presented on Leonard’s behalf as
“impressive,” and observed that “the court has never been
presented at trial with such an accumulation of mitigating
evidence during a penalty phase.” Pet. App. 228a; see also
77a. Without specifically identifying the mitigating evidence
it was purporting to consider, the court nevertheless
concluded that petitioner was not entitled to relief because
10
this court, also the trial judge, is not persuaded that
Mr. Radolovich provided “ineffective assistance of
counsel.” Further, even raising the standard, the court
is not persuaded that . . . the now mitigating evidence
would have changed the jury’s verdict; it may have,
or not, but searching the comers of this judge’s mind,
there is the conclusion that the contention is based
upon speculation.
Id. at 229a. The court did not cite Strickland or otherwise
discuss this Court’s relevant Sixth Amendment decisions.
3. The Kentucky Supreme Court Post-Conviction
Decision
The Kentucky Supreme Court affirmed. Purporting to
apply Strickland, the court held that Radolovich’s failure to
investigate his client’s background and social history was not
deficient performance because counsel’s duty to investigate
extends only to information the defendant provides. Pet.
App. 209a-210a. The court also found no fault with
Radolovich’s failure to develop and present mitigating
mental health testimony from an independent expert. Citing
nothing in the evidentiary record, the court stated that
“[b]ased on Dr. Johnson’s report,” which had addressed
petitioner’s competency to stand trial, “Radolovich could
have reasonably determined that further evaluations could
not assist [Leonard], and as a matter of trial strategy, decided
to forgo these determinations.” Pet. App. 212a.
Addressing prejudice next, the Kentucky Supreme Court
acknowledged that the mental health testimony “presented
some mitigating factors,” but then held that it was not
“convinced” that the mental health evidence presented at the
hearing “would have swayed the jury to decide against the
capital sentence” or would have “overcome the aggravating
factors presented by the Commonwealth.” Pet. App. 212a-
213a. In rendering this judgment, the Kentucky Supreme
11
Court gave no indication that it considered the mitigating
testimony regarding petitioner’s abusive childhood. Like the
post-conviction trial court, the Kentucky Supreme Court did
not purport to determine whether there was a “reasonable
probability” of a different sentencing outcome, as Strickland
has long required. See Strickland, 466 U.S. at 694.
D. District Court Proceedings
Leonard filed a timely petition for habeas relief in the
United States District Court for the Westen District of
Kentucky. Applying the clearly established Sixth
Amendment law set forth in Strickland and the AEDPA
standards set forth in 28 U.S.C. § 2254(d), the district court
granted relief. Pet. App. 191a-204a.
The district court first held that the Kentucky Supreme
Court's decision that Radolovich had provided competent
representation was unreasonable under § 2254(d). The
district court found no support in the case law for the
Kentucky Supreme Court's holding that trial counsel had no
duty to investigate beyond the specific information Leonard
provided him. Pet. App. 191a-192a. The court pointed out
that information provided to Radolovich made clear that his
client's real name was Jeffrey Leonard, not James Earl
Slaughter, and that Radolovich had not even noticed this fact,
much less acted upon it in investigating his client’s case. Id.
The district court also held that the Kentucky Supreme
Court's decision upholding Radolovich’s choice to offer Dr.
Johnson as a witness was unreasonable. As the district court
pointed out, there was no record support for the Kentucky
Supreme Court’s conclusion that Radolovich had made a
“strategic decision,” based on Dr. Johnson’s competency
report, that developing further mental health testimony would
have been fruitless. Id. at 197a.
Tuming to the Strickland prejudice inquiry, the district
court held that the Kentucky Supreme Court's decision was
12
unreasonable under § 2254(d) for two reasons. First, the
state high court failed to consider at all the potential
mitigating effect of testimony from petitioner's family
regarding the abuse and privation that characterized his
upbringing. Cf. Williams v. Taylor, 529 U.S. 362, 397 (2000)
(holding that state supreme court prejudice determination
was unreasonable because “it failed to evaluate the totality of
the mitigating evidence - both that adduced at trial and the
evidence adduced in the habeas proceeding - in reweighing it
against the evidence in aggravation”). Second, expert mental
health testimony could have established that petitioner did
not in fact suffer from borderline personality disorder with
antisocial traits - as Dr. Johnson had testified - and thus did
not pose the continuing threat to society that Dr. Johnson's
flawed BPD diagnosis indicated. To the contrary, that expert
testimony could have placed Leonard in a far more
sympathetic light by explaining to the jury that Leonard’s
inability to find a productive place in society may have been
the result of a serious but undiagnosed learning disability,
and that he was quite capable of rehabilitation with proper
treatment. Pet. App. 199a-202a. As the district court noted,
the Kentucky Supreme Court simply “brushed aside all of the
additional mitigating evidence” and “merely concluded,
without elaboration, that the additional mitigating evidence
would not have altered the outcome.” Pet. App. 202a; see id.
at 203a (Kentucky Supreme Court acted unreasonably
“because it fail[ed] to provide any analysis of the additional
mitigating evidence or even to identify such evidence”).
Summing up, the district court observed that the result of
trial counsel's deficient performance was
that the jury never saw Petitioner for whom he really
was, not James Slaughter, a fictitious entity, but
Jeffrey Leonard, a physically abused, neglected child,
who was abandoned by his father and forced to care
13
for his brothers; a child who, while innately
intelligent, suffered from a significant learning
disability that went undiagnosed throughout his
childhood. The jury never leamed that Jeffrey
Leonard was an individual who, with proper
treatment, was a good candidate for rehabilitation,
who had loving family members who would stand by
him and support him.
Instead, they saw “James Earl Slaughter,” in many
senses, the man who never was, standing alone and
defiant . . . . who apparently was so unloved and so
uncared for that not a single individual relative or friend
would vouch for him, though his life hung in the
balance.
Pet. App. 201a-202a.
E. Sixth Circuit Proceedings
A divided panel of the Sixth Circuit reversed. In an
opinion by Judge Batchelder, the majority agreed that trial
counsel’s performance had been deficient, and it held that the
state court’s contrary determination was unreasonable within
the meaning of 28 U.S.C. § 2254(d). The majority
recognized that Leonard's trial counsel did virtually nothing
to prepare for the sentencing hearing. Pet. App. 12a. The
majority also observed that the record contained no evidence
that Radolovich made a strategic decision to forgo
developing a mitigation case. Rather, the “failure to research
Slaughter’s history ‘resulted from inattention, not reasoned
strategic judgment.’” Id. (quoting Wiggins v. Smith, 539 U.S.
510, 526 (2003)).
Nevertheless, the majority denied relief on the ground
that Leonard suffered no prejudice from his trial counsel’s
incompetent performance. Prior Sixth Circuit case law
firmly established that, to show prejudice, “the new evidence
14
that a habeas petitioner presents must “differ in a substantial
way - in strength and subject matter - from the evidence
actually presented at sentencing.” Broom v. Mitchell, 441
F.3d 392, 410 (6th Cir. 2006) (emphasis added) (quotation
marks omitted); see also Hill v. Mitchell, 400 F.3d 308, 319
(6th Cir. 2005) (same); Clark v. Mitchell, 425 F.3d 270, 286
(6th Cir. 2005) (same); Moore v. Parker, 425 F.3d 250, 255
(6th Cir. 2005) (holding that because counsel introduced
some family background evidence, there was no prejudice
from failing to introduce additional evidence through a
mitigation specialist). Consistent with that established
principle, the majority held that even if Leonard’s trial
counsel had developed and presented graphic testimony from
Leonard’s family of the physical abuse, neglect, and
privation that Leonard routinely suffered during his
childhood, the evidence would not have made a difference
because “[t]he jury heard such testimony from Slaughter
himself.” Pet. App. 13a-14a. The majority did not, however,
attempt to compare petitioner's testimony at sentencing with
the testimony his family members provided during post-
conviction proceedings. In a similar vein, the majority
dismissed as “speculation” the prospect that the jury would
have been influenced by pleas from Leonard's family asking
that his life be spared. Id. at 14a.
The majority also concluded that the failure to retain an
independent mental health expert did not prejudice Leonard
because the expert testimony introduced at the post-
conviction hearing was “largely the same” as that provided at
the sentencing hearing. Id. The majority did not explain its
reasons for rejecting the district court’s conclusion that the
post-conviction expert testimony in fact refuted Dr.
Johnson’s harmful diagnoses of Leonard and exposed
multiple errors in his methods. In other words, the majority
did not evaluate whether the absence of Dr. Johnson’s
harmful diagnosis of BPD with antisocial traits, and Dr.
15
Johnson's attendant harmful testimony about petitioner’s
alleged violent predisposition, might have made a difference
in the sentencing outcome. Nor did majority explain why it
considered irrelevant post-conviction testimony establishing
a cognitive disorder, likely brain damage, the link between
Leonard's upbringing and his paranoid mental condition, and
Leonard's his prospects for rehabilitation - none of which
was covered in Dr. Johnson’s initial sentencing testimony.
Judge Cole dissented. After detailing the wealth of
mitigating information that had been provided at the state
sentencing hearing, Judge Cole concluded that there was a
reasonable probability that the outcome of Leonard’s
sentencing would have been different had the additional
mitigation evidence been presented. Judge Cole rejected the
majority’s view that the absence of testimony from Leonard’s
family would not have made any difference simply because
the jury had heard similar testimony from Leonard himself.
Instead, Judge Cole noted that the additional testimony
provided a more comprehensive picture of Leonard’s
difficult childhood and painted him in a far more sympathetic
light than had his own testimony. Pet. App. 43a. And
“perhaps most importantly, the jury was deprived of the
opportunity to observe that, despite this abuse, [Leonard's]
family cared about him deeply.” Id. at 33a.
Judge Cole also pointed out that the expert testimony
adduced in post-conviction proceedings differed in critical
respects from Dr. Johnson’s testimony. Perhaps most
importantly, the new expert testimony refuted the most
damaging point made by Dr. Johnson: his diagnosis of BPD
with antisocial traits. It was that diagnosis that led Dr.
Johnson to conclude that petitioner would likely persist in a
nomadic and lawless existence, was prone to violence, and
was an unlikely candidate for rehabilitation. Dr. Johnson did
not discover what the post-conviction expert testimony
16
revealed: Leonard suffered from a cognitive disorder due to
a childhood brain injury to his right frontal lobe and a
paranoid personality disorder due to his troubled upbringing.
Judge Cole thus concluded that, “[c]ontrary to the majority’s
opinion, the evidence presented at the hearing is not only
overwhelming, but is substantively more comprehensive than
(and in many instances conflicts with) that presented during
Slaughter’s penalty phase.” Pet. App. 43a.
Leonard then sought panel and en banc rehearing.
Rehearing was denied because the Sixth Circuit reached a
“seven to seven stalemate regarding the en banc petition.”
Pet. App. 254a. Judge Cole, joined by four other judges,
wrote a vigorous dissent from the denial, reasoning that the
majority's decision “conflicts with” decisions such as
Wiggins v. Smith and Williams v. Taylor, in which this Court
found prejudice “although some mitigating evidence was
presented [to the jury].” Pet. App. 256a. He also criticized
the panel’s determination that the testimony of petitioner's
family was redundant of petitioner’s own testimony, and that
the “defendant's self-serving testimony - even when he
testifies to spare his own life - has the same impact
regardless of whether other witnesses corroborate it.” Id.
(citing Skipper v. South Carolina, 476 U.S. 1, 8 (1986)).
The five dissenting judges concluded:
It is no surprise that the jury sentencing “James Earl
Slaughter” - an apparent menace with no redeeming
qualities and not even a single family member to
suggest his life should be spared - felt compelled to
sentence him to death. Although we cannot be
absolutely certain that a single juror sentencing
Jeffrey Leonard - a likely brain-damaged man whose
family would corroborate his testimony and plead for
his life - would come to a different conclusion, this
17
Court's decision leaves one aspect of this case
indisputable: We will never know.
Pet. App. 258a.
REASONS FOR GRANTING THE PETITION
The Sixth Circuit's stringent test for proving prejudice
under Strickland merits this Court's immediate review.
Clearly established law requires a defendant to demonstrate
only “a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.” Strickland, 466 U.S. at 695. As this Court has
repeatedly emphasized, the impact of the undiscovered
mitigation evidence must be “taken as a whole,” Rompilla v.
Beard, 545 U.S. 374, 393 (2005) (quoting Wiggins, 539 U.S.
at 538). A court adjudicating a claim of ineffective
assistance of counsel must “reweigh the evidence in
aggravation against the totality of available mitigating
evidence.” Wiggins, 539 U.S. at 534.
The Sixth Circuit has recast that Strickland standard to
require that evidence presented to demonstrate prejudice
must differ in a substantial way - in strength and subject
matter - from the evidence actually presented at sentencing.
See infra p. 18. That standard, in addition to being squarely
at odds with this Court’s clearly established law, conflicts
directly with decisions of the Third, Ninth, and Tenth
Circuits. Had Leonard’s Sixth Amendment claim been
adjudicated in one of those Circuits, Leonard would have
prevailed: the skeletal mitigation case comprising limited
testimony from Leonard himself and from a state expert hired
to evaluate his competence to stand trial would not have
sufficed to negate the mitigating force of comprehensive
testimony of family members and independent experts
conceming his childhood and his mental health. In contrast,
the Sixth Circuit’ s approach parallels that taken by the Fourth
18
and Fifth Circuits, and thus the result in those Circuits would
likely have been the same as the result here.
That kind of outcome-determinative difference in the
governing legal standard on a matter of such fundamental
importance is intolerable. It is particularly so here because
the approach taken by the Sixth Circuit (and the Fourth and
Fifth Circuits) is at odds with decisions of this Court in
Rompilla, 545 U.S. at 390, and Williams, 529 U.S. at 397-98.
Indeed, this Court's intervention is urgently needed. The
question presented recurs frequently, and the need for a
uniform national rule is apparent. Moreover, the question is
cleanly presented in this case. Unlike other cases presenting
questions of the appropriate standard for assessing Strickland
prejudice, this case does not involve any additional close
question regarding the adequacy of trial counsel's
performance. Because that performance was unquestionably
deficient, there is no impediment to the Court in reaching and
deciding the prejudice issue. And because the
Commonwealth's case in aggravation was comparatively
weak, there is little prospect that the Court could conclude
that full consideration of the additional mitigation evidence
would not have changed the outcome under the appropriate
Strickland prejudice standard.
1. In case after case applying Strickland, the Sixth Circuit
has held that “to establish prejudice, the new evidence that a
habeas petitioner presents must differ in a substantial way -
in strength and subject matter - from the evidence actually
presented at sentencing.” Broom, 441 F.3d at 410 (emphasis
added); Hill, 400 F.3d at 319 (same); Clark, 425 F.3d at 286
(same); see also Smith v. Mitchell, 348 F.3d 177, 200-02 (6th
Cir. 2003); Moore, 425 F.3d at 255. The Sixth Circuit's
Strickland prejudice inquiry thus begins and ends with the
following question: has some subset of the newly available
mitigating evidence previously found its way to the jury’s
19
ears in some skeletal fashion? If the answer to the question is
yes, the court does not give any mitigating weight to the
remaining available evidence. And that is so even in cases
where trial counsel failed to present more powerful or
persuasive evidence regarding a defendant's abusive
upbringing, his mental illness, his cognitive capacity, or other
considerations that bear directly on the “reasoned moral
response” a sentencer has a constitutional duty to render in a
capital sentencing proceeding. See generally Penry v.
Lynaugh, 492 U.S. 302, 319 (1989); Eddings v. Oklahoma,
455 U.S. 104, 111 (1982) (full consideration of an offender’ s
life history is a “constitutionally indispensible part of the
process of inflicting the penalty of death”).
Applying the constricted Sixth Circuit approach to
prejudice, the panel majority held that Leonard could not
show prejudice from failure to obtain and present family
members’ testimony regarding his difficult childhood
because “the jury heard such testimony from Slaughter
himself.” Furthermore, the panel ignored expert testimony
that demonstrated the falsity of the only assessment of
petitioner's mental health offered to the jury at sentencing.
Even more egregiously, the panel treated Dr. Johnson's
harmful and false testimony that petitioner suffered from
BPD with anti-social traits as if it merely restated the
evidence adduced in the post-conviction proceedings. In
reality, the post-conviction expert testimony presented an
entirely different picture, and specifically established that
Leonard’s childhood head trauma triggered his cognitive
dysfunction and could have damaged the right frontal lobe of
his brain. Expert testimony also confirmed Leonard’s
account of a horrific childhood of physical abuse and neglect.
2. Like the Sixth Circuit, the Fourth and Fifth Circuits
routinely refuse to credit mitigating evidence as sufficient to
establish prejudice under Strickland unless that evidence is
20
materially different, in strength and subject matter, from the
evidence actually presented at trial. In these Circuits a bare-
bones outline of a defendant’s history is deemed an
acceptable substitute for the detailed presentation of the
mitigation case that a defendant has the constitutional right to
present. In Buckner v. Polk, for example, although trial
counsel “portrayed Buckner as the product of a troubled
home, whose father had a history of alcohol abuse and whose
brother died in a house fire when Buckner was young,” 453
F.3d 195, 205 (4th Cir. 2006), counsel had failed to show that
these circumstances had affected the defendant adversely,
and the mental health evidence at sentencing made no
mention of these circumstances. Id. at 210-11 (Gregory, J.,
concurring in part and dissenting in part). During post-
conviction proceedings, Buckner introduced evidence from a
mitigation expert describing his home life as “severely
dysfunctional” and concluding that the fire and his father’s
alcoholism had caused him to develop post-traumatic stress
disorder. Id. at 212-13. He also introduced a psychologist’s
affidavit to the same effect, as well as a psychiatrist's
affidavit concluding that the defendant had the emotional
maturity of a twelve-year-old - a condition that, in the
psychiatrist’s view, had “contributed materially” to his
involvement in the crimes for which he had been convicted.
Id. at 213. The Fourth Circuit found no prejudice, stressing
that “the proffered evidence . . . differs primarily in degree
rather than in kind from the evidence that [trial counsel]
presented.” Buckner, 453 F.3d at 204 (emphasis added); see
also McHone v. Polk, 392 F.3d 691, 709-10 (4th Cir. 2004)
(finding no prejudice because affidavit submitted to post-
conviction court, detailing defendant's dysfunctional
childhood home environment, was “almost entirely
cumulative with the testimony that [defense] counsel
presented at trial”); id. at 731-32 (Gregory, J., dissenting)
(emphasizing that counsel had presented “four total witnesses
21
during sentencing, two of whom barely knew McHone,” such
that counsel could not “rebut the assertion that McHone only
had a somewhat troubling childhood”); Moody v. Polk, 408
F.3d 141, 153-54 (4th Cir. 2005).
The Fifth Circuit applies a similarly constricted prejudice
analysis in which even a “skeletal” presentation of evidence
precludes a prejudice finding. For example, in Neal v.
Puckett, defense counsel presented only two mitigation
witnesses, whose testimony comprised nine pages of the trial
record: the defendant's mother, who “gave an overview of
Neal’s troubled background,” and a psychologist who
“testified about Neal’s mental and emotional difficulties.”
286 F.3d 230, 237 (5th Cir. 2002) (en banc). In post-
conviction proceedings, Neal presented affidavits and reports
from employees (including doctors) of a prison, a mental
hospital, and a school for retarded children, all of which Neal
had called home. The Fifth Circuit recognized that the
additional evidence presented to the post-conviction court
was “disturbing reading,” id. at 238-39, and it recognized that
the initial presentation of mitigating evidence was “skeletal.”
Id. at 244. Nevertheless, the Fifth Circuit upheld the state
court’s prejudice determination because, inter alia, “much of
the mitigating evidence had already been presented to the
jury albeit in an abbreviated form.” Id. at 247; see also
Mathis v. Dretke, 124 Fed. Appx. 865, 881 (5th Cir. 2005)
(finding no prejudice from failure to introduce evidence of
defendant’s frontal lobe damage because counsel had
presented evidence with the same “mitigating thrust”); Foster
v. Johnson, 293 F.3d 766, 783-84 (5th Cir. 2002) (failure to
introduce certain “family background” evidence did not
warrant finding of prejudice because jury had already been
22
presented with evidence of, inter alia, defendant's age, lack
of criminal history, and poor educational background).?
3. In sharp contrast, the Third, Ninth, and Tenth Circuits
have rejected any “different in kind” requirement. For
example, in Outten v. Kearney, defense counsel elicited
extensive testimony at sentencing regarding the defendant's
troubled past, including “information regarding [his]
substance abuse problem, truancy trouble in school,
appearances in Family Court, criminal activity, and abusive
and alcoholic father.” 464 F.3d 401, 420 (3d Cir. 2006). The
Third Circuit nonetheless rejected the State’s argument that
this bare-bones mitigation case foreclosed a defendant from
showing prejudice by relying on a more extensive
presentation of the same kind of evidence: “[s]imply because
some mitigating evidence regarding [a defendant's] abusive
childhood was introduced to the jury . . . it does not follow
that the jury was provided a comprehensive understanding of
[the defendant's] abusive [family] or other aspects of his
troubled childhood.” Id. at 421.
a There is, at the very least, confusion in still other Circuits. In Hall v.
Head, 310 F.3d 683, 702-03 (11th Cir. 2002), for example, the defendant
Hall testified that he had enlisted in the Amy, finished college, retumed
to the Army, and ultimately was promoted to first lieutenant. Id. 702-03,
705. In post-conviction proceedings, Hall argued that defense counsel
was ineffective for not introducing detailed military records, which
included (according to the Eleventh Circuit) “outstanding” evaluations,”
that noted among other things that Hall’s “attitude is a model for his
peers” and that Hall “was unselfishly giv[ing of] his time and talents for
the betterment of the section and the accomplishment of the mission.” Id.
at (alteration in original; quotation marks omitted). The records also
included a letter from a Command Sergeant Major stating that Hall was
“to be commended, for no one else could have done [his job] so well.”
Id. In spite of all of this evidence, the Eleventh Circuit upheld the state
court's prejudice determination, reasoning that the jury knew, from Hall’s
own testimony, that he “was performing well in the military,” “had gone
to college[, and] had never been arrested [or] convicted” previously. Id.
23
In a similar vein, in Jermyn v. Horn, 266 F.3d 257 (3d
Cir. 2001), trial testimony had revealed that the defendant
was mentally ill and that his father beat him on a weekly
basis. Id. at 304. The Third Circuit nonetheless rejected the
state supreme court’s holding that “[mitigation] evidence that
could have been presented would simply have provided the
jury with more detailed incidents of [the defendant's]
childhood trauma and mental illness.” Id. at 311 (internal
quotation marks omitted). Rather, the court found Strickland
prejudice because the jury did not hear “strong and specific
testimony about a horrific home life in which Jermyn was
physically and emotionally terrorized by his father.” Id. at
310; see also Marshall v. Cathel, 428 F.3d 452, 473-74 (3d
Cir. 2005); Jacobs v. Horn, 395 F.3d 92, 107 (3d Cir. 2005).
The Ninth Circuit employs the same approach. In
Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001) (en
banc), the defense had offered mitigating testimony from a
doctor regarding the defendant's family and childhood
background, his health history, his psychiatric profile, his
substance abuse, and a humanizing anecdote. Id. at 928.
Despite recognizing that the “mitigation evidence presented
at trial through the testimony of [the doctor] was substantial,”
id. at 929, the court found that the defendant suffered
prejudice because the jury did not hear “experts in
endocrinology and toxicology, or of friends and family
members relating additional humanizing stories.” Id. at 932.
Similarly, in Stankewitz v. Woodford, 365 F.3d 706, 717-23
(9th Cir. 2004), the court of appeals found Strickland
prejudice where the jury had heard a “summar{y]” of the
defendant's “life chronology, starting from his suffering a
severe beating at age six and continuing through his
childhood placements in one state institution after another,”
24
but had not heard “the sort of detailed information” that came
to light in post-conviction proceedings.’
The Tenth Circuit has taken the same tack. In Smith v.
Mullin, 379 F.3d 919 (10th Cir. 2004), the jury had received
“evidence of [the defendant's] impulsiveness and lack of
emotional control.” Id. at 941. The court nonetheless held
that this mitigation case was “pitifully incomplete” and that
the defendant was prejudiced by his sentencing counsel’s
failure to elaborate upon his “background, brain damage, and
mental retardation.” Id. at 944; see also Anderson v.
Sirmons, 476 F.3d 1131, 1147 (10th Cir. 2007) (finding
prejudice because “exceedingly limited” mitigation case
based on testimony of defendant’s family and co-workers did
not canvass evidence of defendant’s childhood abuse, brain
damage, and drug abuse).
4. The unacceptable consequences of the Sixth Circuit's
distorted understanding of Strickland are vividly illustrated
here. The panel majority recognized that “[h]Jad Radolovich
located Slaughter’s family, the jury would have heard
testimony from Slaughter’s mother, brothers, and
grandparents that Slaughter was abandoned by his father,
abused by his mother and step-father, and frequently left in
charge of his siblings.” Pet. App. 13a. As Judge Cole
* See also Hovey v. Ayers, 458 F.3d 892, 926-30 (9th Cir. 2006) (finding
prejudice even though the jury heard expert testimony that defendant
suffered from schizophrenia; counsel failed to give the expert information
that would have strengthened his diagnosis of schizophrenia and
forestalled effective cross-examination by the prosecution); Douglas v.
Woodford, 316 F.3d 1079, 1088-89 (9th Cir. 2003) (finding prejudice
where general mitigation testimony was heard as to defendant's difficult
childhood and good character but counsel failed to present more detailed
evidence of those considerations, as well as evidence of defendant's
alcohol abuse and brain damage); Bean v. Calderon, 163 F.3d 1073,
1080-81 (9th Cir. 1998) (finding prejudice where family portrait was an
“unfocused snapshot” and other mitigating evidence was presented “only
in the vaguest of terms”).
25
observed and as described above, that evidence was
powerful. Nonetheless, the panel gave it no weight in the
prejudice analysis because “[t]he jury heard such testimony
from Slaughter himself.” Id. at 13a-14a. That is, because
Leonard had testified about his own upbringing, the Sixth
Circuit concluded that there was not even a reasonable
probability that other people’s testimony about that subject
matter would have made a difference to the jury.
Both common sense and the law belie that result. First, it
blinks reality to think that a jury, having just convicted a
defendant of capital murder, will value that defendant’s own
testimony anywhere near as much as it will value testimony
from people with only an indirect stake in the sentencing
outcome. This Court has recognized, for example, that a
defendant’s own testimony in support of mitigation is “the
sort of evidence that a jury naturally would tend to discount
as self-serving,” Skipper v. South Carolina, 476 U.S. 1, 8
(1986), while “[t]he testimony of more disinterested
witnesses . . . would quite naturally be given much greater
weight by the jury,” id. Thus, the Court held that it is
“implausible” to characterize the testimony of disinterested
witnesses as “cumulative” of the defendant's own mitigation
testimony. Id.; see also Brown v. Myers, 137 F.3d 1154,
1157 (9th Cir. 1998) (“[defendant’s] own testimony would
have appeared more credible because it coincided in
important respects with those of his alibi witnesses”); cf.
United States v. Gleason, 616 F.2d 2, 15 (2d Cir. 1979)
(approving jury instruction stating that a defendant “has a
deep personal interest in the result of this prosecution[,
which] creates, at least potentially, a motive for false
testimony” and “is of a character possessed by no other
witness” (quotation marks omitted)). But that “implausible”
outcome is the exact result of the Sixth Circuit’s approach.
26
Second, the Sixth Circuit's myopic focus on whether the
evidence at the state post-conviction hearing was the same
“kind” of evidence that was presented at trial caused the
panel majority to lose sight of the powerful effect that the
mere attendance of family members would have had on the
jury. Even if the family members had merely recited the
same testimony as petitioner - and they did not - their very
presence as witnesses at the sentencing hearing would have
served to humanize petitioner and send a message that his life
was worth saving. Indeed, the absence of testimony from
family members sends a damning message to the jury that the
defendant is so evil that he has alienated even his own kin.
The Sixth Circuit's characterization of this effect as “pure
speculation” is at odds with that of other Circuits, which have
recognized the powerful effect that such testimony - and the
absence of such testimony - has on the jury. See, eg.,
Cargle v. Mullin, 317 F.3d 1196, 1210, 1222 (10th Cir. 2003)
(finding prejudice where the “inescapable message sent to the
jury was that no one who really knew the young man they
had found guilty of murder — not parents, not family
members, not friends — would take the stand to explain why
his life was still worth saving”); Mayfield, 270 F.3d at 932
(en banc decision finding prejudice when jury did not hear
“friends and family members relating additional humanizing
stories”); see also Pet. App. 256a-257a (Cole., J., dissenting,
joined by four Judges) (noting importance of testimony to
rebut the impression that Leonard “was a man so loathed that
nobody - not even his family - would corroborate his
testimony or plead for his life”).
Third, the panel ignored that although the post-conviction
expert testimony related to the same “subject matter” as the
testimony at sentencing, Broom, 441 F.3d at 410, the post-
conviction evidence undermined and contradicted the mental
health testimony that Dr. Johnson had presented to the jury:
the post-conviction expert testimony demonstrated that
27
Leonard did not suffer from BPD with anti-social traits, that
Leonard could be rehabilitated, and that Leonard had a
cognitive disorder likely caused by a childhood head trauma
that went untreated. Indeed, the testimony elicited by trial
counsel painted an affirmatively harmful picture of Leonard
by causing him to appear as a anti-social individual who
would not be susceptible to rehabilitation. It is clear that
such a lapse by counsel is prejudicial to the defendant. See,
e.g., Daniels v. Woodford, 428 F.3d 1181, 1210 (9th Cir.
2005) (finding prejudice where sentencing counsel called an
unprepared expert who wrongly suggested that the defendant
was a sociopath).
5. The Sixth Circuit’s insistence on evidence that is
different in kind (and not just degree) cannot be reconciled
with this Court’s decisions. Evidence of a defendant's
childhood abuse, mental illness, potential for rehabilitation,
and family support provide the jury with the critical evidence
needed to ensure, as the Constitution requires, that the
punishment is “directly related to the personal culpability of
the criminal defendant.” Penry v. Lynaugh, 492 U.S. 302,
323 (1989); Tennard v. Dretke, 542 U.S. 274, 287 (2004);
Clemons v. Mississippi, 494 U.S. 738, 752 (1990). A capital
sentencer must, therefore, be afforded the opportunity to
assess “the character and record of the individual offender”
as well as “the circumstances of the particular offense.”
Eddings, 455 U.S. at 112. The sentencer must do so
“because of the belief, long held by society, that defendants
who commit criminal acts that are attributable to a
disadvantaged background, or to emotional or mental
problems, may be less culpable than defendants who have no
such excuse.” Penry, 492 U.S. at 319.
Moreover, the presentation of some minimal level of
mitigation evidence in a certain category does not render
additional evidence of the same kind - but of a substantially
28
different degree - irrelevant. Instead, the jury must be
allowed to see evidence allowing it to evaluate the full moral
character and background of the defendant.
When a defendant has been deprived of competent
counsel, he has lost the only mechanism for ensuring that the
jury will offer a reasoned moral judgment in the capital
sentencing proceeding. It is no surprise that this Court’s
decisions foreclose any requirement that mitigating evidence
differ substantially “in strength and subject matter,” Hill, 400
F.3d at 319, from the evidence that was actually presented,
even when the newly available mitigation evidence reveals a
wealth of relevant information. Pet. App. 13a-15a. In fact,
this Court has repeatedly stated the opposite rule: the
reviewing court must consider the impact of the undiscovered
mitigation evidence “taken as a whole,” Rompilla, 545 U.S.
at 393 (quoting Wiggins, 539 U.S. at 538).
Williams v. Taylor, 529 U.S. 362 (2000), is directly on
point. In Williams this Court found Strickland prejudice
where the sentencing jury did not hear a “graphic
description,” id. at 398, of a defendant’s abuse and neglect in
childhood despite the fact that the defendant’s mother,
neighbors, and a psychiatrist testified at his sentencing and
provided some evidence of that nature, id. at 369. And the
Court reached that conclusion in the face of aggravation
evidence that was far more damaging that the meager case in
aggravation presented against Leonard in this case. As in
Williams, the majority decision below “reveals an obvious
failure to consider the totality of the omitted mitigation
evidence.” Id. at 416 (O’Connor, J., concurring in part and
concurring in the judgment).
These holdings leave no room for doubt: a habeas court
may not disregard or devalue undiscovered mitigation
evidence merely because the jury was exposed to a bare-
bones version of the mitigation case. That is all the more
29
true when the evidence actually presented involved the
testimony of the defendant himself, which (as the Court
recognized in Skipper) is the kind of testimony that benefits
most from the corroboration and amplification that family
members are uniquely situated to provide.
6. The time to review the question presented is now. The
proper approach to determining prejudice under Strickland is
unquestionably important. The question has the potential to
arise in every capital case seeking to vindicate the right to
effective assistance of counsel, and the divergent approaches
of the various Circuits - including most of the Circuits with
substantial death row populations - are well-articulated and
deeply entrenched. As a result, federal habeas petitioners
asserting ineffective assistance claims are subject to disparate
treatment depending on the States in which they are
convicted.
Further, this case is the ideal vehicle to decide the issue.
Because even the panel majority agreed that counsel's
performance was deficient, there are no obstacles to reaching
the prejudice question. And there is little doubt that the Sixth
Circuit's erroneous approach was outcome-determinative.
For one thing, the State’s case in aggravation was weak.
Petitioner was only 19 years old at the time of the offense, he
had no prior history of violence, and the jury found the
existence of only a single aggravating factor: that the murder
was committed in the course of a robbery. Compare
Williams, 529 U.S. at 368-69, 396-98 (finding prejudice in
the face of a far stronger case in aggravation).
Moreover, because of counsel’s ineffectiveness, the jury
heard only a tiny fraction of the available mitigation
evidence. The powerful evidence presented at the post-
conviction proceedings demonstrated that Leonard had
endured a childhood of abuse and neglect, had sustained head
trauma as a small child, and likely suffered from a
30
consequent cognitive disorder. Independent medical experts
explained that rehabilitation was possible, and they rebutted
the testimony of the sole medical expert who testified at the
sentencing hearing. Moreover, family members were willing
- indeed, eager - to testify on petitioner's behalf and to plead
for his life. The picture presented to the jury, in short, was
worse than incomplete. A process designed to encourage a
“reasoned moral judgment” by the jury produced nothing of
the sort, because the subject of that moral judgment was
never shown to the jury - indeed, the jury never even knew
his real name. There is, in short, no doubt that petitioner's
Sixth Amendment claim would have been vindicated had it
been judged under the prejudice analysis applied in the Third,
Ninth, and Tenth Circuits and required by Strickland itself.
As Judge Cole’s powerful dissents and the seven-to-
seven stalemate on the petition for rehearing below
demonstrate, the result in this case is a patent injustice. The
jury was denied the evidence it needed to hear, and petitioner
was denied his constitutional rights by the happenstance of
geography. This Court should grant review to rewrite what
would otherwise be a “new chapter in our death penalty
jurisprudence.” Pet. App. 254a.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
MARGUERITE NEILL THOMAS DONALD B. VERRILLI, JR.*
DEPARTMENT OF PUBLIC ADVOCACY IAN HEATH GERSHENGORN
100 Fair Oaks Lane, Suite 301 JosHua M. SEGAL
Frankfort, KY 40601 SHARMILA SOHONI
(502) 564-3948 JENNER & BLocK LLP
601 Thirteenth Street, N.W.
KATHLEEN KALLAHER SCHMIDT Washington, DC 20005
SCHMIDT LAW OFFICE (202) 639-6000
P.O. Box 218
Shepherdsville, KY 40165
(502) 955-6014
April 2, 2007 * Counsel of Record
