Counsel’s Failure to Investigate Mitigating Evidence Caused No Prejudice

Schriro v. Landrigan

Landrigan was convicted of second-degree murder in 1982 and sentenced to death. At sentencing Landrigan requested that his mother and ex-wife not testify. His lawyer explained that he advised very strongly that it was in his client’s interests to have these two women testify, but that his client had refused. The court verified this with Landrigan, and Landrigan actively prevented the information from coming to light by interrupting the judge’s attempt to bring it out. He later filed a petition for postconviction relief on the basis that he had ineffective assistance of counsel because his lawyer failed to investigate other possible mitigating circumstances. The ninth circuit held that Landrigan was entitled to an evidentiary hearing on his ineffective assistance of counsel claim because he raised a colorable claim that his counsel’s assistance fell below the Strickland standard since he did little to prepare for the sentencing phase, and because investigation would have revealed a wealth of opportunity. It also held that it was unreasonable for the lower court to conclude that Landrigan would have objected to the admission of any mitigating evidence, as opposed to the testimony of his ex-wife and mother. Finally, none of Landigran’s actions excuse counsel’s failure to properly investigate the matter.

Under AEDPA habeas relief is available only when the state court’s adjudication of a claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, or an unreasonable determination of the facts. Before granting an evidentiary hearing the court must determine that such a hearing could enable the applicant to prove the allegations which, if true, would entitle him to federal habeas relief. This comports with AEDPA’s purpose – “[i]f district courts were required to allow federal habeas applicants to develop event he most insubstantial factual allegations in evidentiary hearings, district courts would be forced to reopen factual disputes that were conclusively resolved in the state courts.”

If Landrigan instructed his counsel not to offer any mitigating evidence, the failure to admit such evidence could not be prejudicial under Strickland. It was not unreasonable for the court to conclude that when Landrigan answered the question as to whether there was any mitigating evidence by saying “Not as far as I’m concerned” he was objecting to the admission of any mitigating evidence. Moreover, counsel’s investigation (or lack thereof) notwithstanding, Landrigan was aware of the mitigating evidence at issue.

Nor was it unreasonable for the court to hold that, assuming Landrigan did not want any mitigating evidence presented, his claim was “frivolous, and meritless.” In Wiggins the Court addressed the sufficiency of the investigation to support counsel’s decision not to enter any mitigating evidence. In Rompilla v. Beard the defendant refused to cooperate in the investigation, but did not affirmatively hinder it.

Even assuming that Landrigan’s waiver must have been informed and knowing (a standard the Court has never applied to these cases), (1) this issue was not raised below, and (2) counsel indicated that he carefully explained the matter, and (3) Landrigan’s statements (e.g. “I think if you want to give me the death penalty, just bring it right on”), taken as a whole, indicate that he understood the consequences.

Finaly, the court had most of the evidence that Landrigan now wants investigated before it, and the court could reasonably conclude that what evidence it didn’t (that Landrigan might have been genetically predisposed to violence) would not have made a difference in sentencing.

Justices Stevens, Souter, Ginsburg, and Bryer, dissenting, argue that (a) no one seriously contends that counsel’s investigation of possible mitigating circumstances was adequate (for example, counsel failed to perform a psychological evaluation that would have shown a serious organic brain disorder); (b) it is well established that a citizen’s waiver of a constitutional right must be knowing, intelligent, and voluntary (Zerbst), specifically in the context of the waiver of trial rights; and (c) a capital defendant has the right to have his sentence reflect a reasoned moral judgment as to all possible mitigating evidence. Therefore, if Landrigan can show that his waiver was not knowing intelligent and voluntary he has a valid claim, and since it would be possible for him to do so, it was unreasonable to conclude that he was not entitled to an evidentiary hearing to explore this claim. Also, the only claim he is making here is ineffective assistance of counsel, so any waiver of the right to present additional evidence is irrelevant. Landrigan could not have known about his organic brain disorder because counsel did not adequately investigate the mater.

The record, also, does not support the contention that Landrigan waived his right to present mitigating evidence – only that he did not want his family to testify. Landrigan also consented to a continuance for counsel to investigate mitigating circumstances, which does not square with the understanding that he wanted no such thing admitted.

Finally, the evidence of Landrigan’s organic brain disorder is sufficiently strong evidence to draw the sentence into doubt and create prejudice, and the aggravating evidence was no stronger than in similar cases where an attorney’s failure to investigate mitigating circumstances was held to constitute a cognizable claim of ineffective assistance of counsel.

Habeas cases requiring evidentiary hearings have been few in number and there is no clear evidence that this particular class has burdened the dockets of the federal courts. Even before AEDPA evidentiary hearings only occurred in 1.17% of all federal habeas cases. “We ought not take steps which diminish the likelihood that [federal] courts will base their legal decision on an accurate assessment of the facts.”