Counsel was concerned that presentation of mitigation

In sentencing, counsel presented no evidence. Counsel was concerned that presentation
of mitigation would open the door to rebuttal aggravation evidence. Counsel did not, however, file
a motion to limit questionable state proof” and “made no attempt to determine the validity of
possible mitigation testimony.” “Counsel's decision not to introduce mitigating evidence without
taking adequate steps to determine the existence of mitigation testimony was . . . likely based on
inexperience rather than a sound strategic choice.” Prejudice established because “the jury heard no

*Capital Case
NUMEROUS DEFICIENCIES 251
evidence whatsoever about the petitioner's social background, psychiatric or psychological condition,
or post-incarceration behavior.” If counsel had adequately investigated and presented the evidence,
the jury would have heard from an inmate counselor and a records custodian that the petitioner had
not had any disciplinary problems while in prison between 1979 and 1985. A psychiatrist could also
have testified about the effects of the petitioner’s father’s alcoholism and “the extreme nature of the
physical abuse that [the petitioner] apparently encountered as a child without reason.” In essence,
“the petitioner's violent nature was due to his social background,” but his “chances of rehabilitation”
were “good.”
1993: *Deaton v. Dugger , 635 So. 2d 4 (Fla. 1993) (direct appeal in 1985). Counsel ineffective in failing
to adequately investigate, such that “the defendant was not given the opportunity to knowingly and
intelligently make the decision as to whether or not to testify or to call these witnesses” prior to
waiving the presentation of mitigation. Because substantial mitigation evidence, including mental
health testimony, was available, the trial court’s findings were affirmed.
*Heiney v. State , 620 So. 2d 171 (Fla. 1993) (tried in 1978). Trial counsel ineffective in sentencing
phase. Counsel did not conduct or arrange for an investigation into the defendant's background.
Adequate investigation would have revealed evidence of chronic substance abuse and use of drugs
and alcohol at time of the offenses; borderline personality disorder; chronic physical and emotional
abuse as child; and possible organic brain damage.
*Averhart v. State , 614 N.E.2d 924 (Ind. 1993) (tried in 1982). Counsel ineffective for failing to
prepare and present mitigation evidence. Counsel conducted no investigation and spoke only with
the defendant and his mother and he did not even discuss their testimony with them. In their
testimony, he simply asked if they had anything to say and gave no guidance or direction. If counsel
had adequately investigated the evidence would have established a disadvantaged background,
education, and good character.
*Woodward v. State , 635 So. 2d 805 (Miss. 1993) (tried in April 1987). Counsel ineffective for
failing to present available mitigation, i.e. counsel allowed expert witness to testify only about test
results and did not offer detailed history of mental illness because of mistaken belief that it would
open the door to unlimited character evidence.