Counsel was concerned that presentation of mitigation would open the door to

Counsel was concerned that presentation of mitigation

This preview shows page 255 - 257 out of 355 pages.

In sentencing, counsel presented no evidence. Counsel was concerned that presentationof mitigation would open the door to rebuttal aggravation evidence. Counsel did not, however, filea motion to limit questionable state proof” and “made no attempt to determine the validity ofpossible mitigation testimony.” “Counsel's decision not to introduce mitigating evidence withouttaking adequate steps to determine the existence of mitigation testimony was . . . likely based oninexperience rather than a sound strategic choice.” Prejudice established because “the jury heard no
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*Capital CaseNUMEROUS DEFICIENCIES251evidence 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 hadnot had any disciplinary problems while in prison between 1979 and 1985. A psychiatrist could alsohave testified about the effects of the petitioner’s father’s alcoholism and “the extreme nature of thephysical 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 failingto adequately investigate, such that “the defendant was not given the opportunity to knowingly andintelligently make the decision as to whether or not to testify or to call these witnesses” prior towaiving the presentation of mitigation. Because substantial mitigation evidence, including mentalhealth 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 sentencingphase. 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 drugsand alcohol at time of the offenses; borderline personality disorder; chronic physical and emotionalabuse as child; and possible organic brain damage.*Averhart v. State, 614 N.E.2d 924 (Ind. 1993) (tried in 1982). Counsel ineffective for failing toprepare and present mitigation evidence. Counsel conducted no investigation and spoke only withthe defendant and his mother and he did not even discuss their testimony with them. In theirtestimony, he simply asked if they had anything to say and gave no guidance or direction. If counselhad 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 forfailing to present available mitigation, i.e. counsel allowed expert witness to testify only about testresults and did not offer detailed history of mental illness because of mistaken belief that it wouldopen the door to unlimited character evidence.
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