Failure to Properly Prepare for Trial, Basis for Federal Habeas Relief
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
In 2001 the two female justices on the U.S. Supreme Court spoke out about the quality of legal representation afforded to criminal defendants facing the death penalty in this nation.
“After 20 years on (the) high court,” Justice Sandra Day O’Connor said, “I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country. Perhaps it’s time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used.”
In April of that year Justice Ruth Bader Ginsburg was more direct in an Associated Press account: “People who are well represented at trial do not get the death penalty … I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-executions stay applications in which the defendant was well represented at trial.”
Before the 2001 public criticisms offered by Justices O’Connor and Ginsburg, three major newspapers had conducted investigations that offered compelling evidence about the deplorable legal representation provided in capital cases. The Chicago Tribune reported on November 15, 1999
that 12% of those condemned to death from 1976 to 1999 were represented by “an attorney who had been, or was later, disbarred or suspended—disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney’s license should be taken away.” The newspaper said that an additional 9.5% had “received a new trial or sentencing because their attorney’s competence rendered the verdict or sentence unfair, court records show.” (Ken Armstrong and Steve Mills, “Inept Defenses Cloud Verdict”).
Less than a year later (September 9, 2000) the Charlotte Observer reported that at least 16 condemned inmates in North Carolina, including 3 who had been executed, were represented by attorneys who have been disbarred or disciplined for unethical or criminal conduct.
The following day the Dallas Morning News reported that it had examined 461 capital cases in Texas and found that one in four of the condemned inmates had been represented at trial or on appeal by court-appointed attorneys who had been disciplined for professional misconduct at some point in their careers. (“Quality of Justice,” 09/10/2000).
Reports like these, and its own experience with death penalty cases in Texas, prompted the Texas Defender Service to undertake a study of the quality of legal representation provided in capital cases. “Death row inmates today face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.” (“Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts,” 2002).
The death penalty verdict in the case of Walter J. Koon perfectly matched this description. On March 5, 1993, Koon, accompanied by a friend named Sarah Robinson, droved to the Baton Rouge residence of his in-laws where his estranged wife, Michele Guidry, was staying. Koon parked his truck in the driveway of the residence where he got out and walked to the backyard. There, he found and shot and killed Ms. Guidry. He then went inside the residence where he ki
lled Ms. Guidry’s parents. Seeing this, Ms. Robinson bolted from the truck, ran into the Guidry residence, and hid until Koon had departed. See: Koon v. Cain, 277 Fed.Appx. 381, 382; 2008 U.S.App. LEXIS 9478 (5th Cir. 2008).
Upon leaving the Guidry residence, Koon drove to Livingston Parish where he surrendered to law enforcement authorities. He was subsequently indicted for three counts of capital murder. The trial court assigned the local public defender’s office to represent Koon. The defendant expressed dissatisfaction at the appointment, prompting the court to appoint a private attorney named Kevin Monahan to represent him along with the public defender’s office. A second private attorney named Denise Vinet was soon substituted to replace the public defender’s office in the case. Id.
The trial began in March 1995. Before any testimony could be taken, Monahan informed the court that Ms. Vinet wanted to withdraw from the case. The lead attorney told the court that Ms. Vinet’s assistance was not needed. Ms. Vinet concurred, telling the court that Monahan had not asked her to do a thing on the case. The trial court granted Ms. Vinet’s motion to withdraw, but only after Koon waived any objection. No additional counsel was appointed to the case. Id.
At the start of the trial Monahan entered a dual plea of not guilty and not guilty by reason of insanity. He based that defense on the fact that Koon “just had one bad week” believing this would negate the defendant’s specific intent to kill and thereby lessen his culpability for the three murders which would open the door to a possible manslaughter verdict. The Fifth Circuit outlined the factors Monahan had identified in support of the “bad week” insanity/manslaughter defense:
Koon’s wife had left him.
The defendant has become ill.
He had a tax lien levied against him.
Ms. Robinson had told him in the truck on the way to the Guidry residence that his estranged wife was having an affair.
While Koon had stated he was not using drugs or alcohol when he killed the three people, he had been using drugs (Xanax) and alcohol earlier that morning as well as in the preceding weeks, and this led Monahan to believe that his client was suffering from “withdrawal” at the time of the murders. Id., 277 Fed.Appx. at 383.
Monahan theorized that these factors, particularly the “detoxification effects” of the drug withdrawal, and the “bad week” rendered Koon “unable to tell right from wrong when he shot his estranged wife and her parents.” Id. In support of this theory, Monahan enlisted the assistance of several medical experts. He finally identified Dr. Marc Zimmerman as his chief expert and hired the doctor the day before the trial commence. Id.
This tactical decision proved to be a disaster. Dr. Zimmerman, who had only one hour to interview Koon before the start of trial, testified that “detoxification contributed to [Koon’s] inability to tell right from wrong at the time of the killings.” Id., at 384. State prosecutors knew a “turkey in the woods” when they saw one. They called Dr. Donald Hoppe in rebuttal to Dr. Zimmerman. Hoppe did not spare the rod of criticism. He pointed out that Zimmerman had conducted only a “cursory interview” with Koon and had not interviewed any of his friends or family members. While Dr. Hoppe, a clinical psychologist, had not interviewed Koon, he had reviewed the results of “the MMPI test conducted by Zimmerman” and determined that Koon was: 1) a lair, 2) not remorseful, 3) manipulative, and 4) violent. Id.
The Fifth Circuit pointed out that Monahan was so “unprepared” that he made no attempt to counter the State’s devastating rebuttal “even though it turned out that there was little in the literature to support Hoppe’s broad interpretation of Koon’s test results.” Id. The appeals court added:
“Koon’s insanity/manslaughter defense was dealt another blow when Robinson, the lone eyewitness to the killings, whom Monahan had failed to interview prior to trial, contradicted Koon’s own testimony by denying that she had told him shortly before the killings that his wife was having an affair with one Joey Leblanc, a person Koon particularly disliked because he had been betrayed by Leblanc in the past. Robinson also contradicted Koon’s testimony that he had consumed alcohol and drugs (including Xanax) the morning of the killings.” Id.
Koon was convicted on three counts of capital murder and sentenced to death. His conviction and sentence were upheld on direct appeal. He then filed an application for post-conviction relief in the trial court raising an ineffective assistance of counsel claim. The trial court heard, and rejected, Koon’s request to have 33 witnesses subpoenaed to support his ineffective assistance claim. The trial court, however, did permit two witnesses to testify: Monahan and Ms. Vinet. But their testimony did not persuade the trial judge who denied the post-conviction application, concluding that Monahan “did a good job with what he had to work with.” Id.
Koon thereafter petitioned to the federal district court for habeas corpus relief pursuant to 28 U.S.C. § 2254. After an exhaustive review of the state court record, the federal district court found that Koon had been denied effective assistance of counsel at both the guilt/innocence and penalty phases of the trial. The district court reversed Koon’s conviction and death sentence, remanding the case back to state authorities for a new trial. The State elected to appeal to the Fifth Circuit which upheld the district court’s order. Id., at 382-83.
The Fifth Circuit began its analysis with a requisite review of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Citing 28 U.S.C. § 2254(d), the appeals court concluded:
“The AEDPA specifies that federal habeas relief ‘shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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 of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’
“The Supreme Court has held that a state court’s decision that correctly identifies the governing legal rule but unreasonably applies it to the facts of a particular prisoner’s case is sufficient for a federal habeas court to grant the writ. For a federal court to find a state court’s application of Supreme Court precedent ‘unreasonable,’ however, the state court’s decision must have been more than simply incorrect or erroneous; its application of federal law must have been ‘objectively unreasonable.’ Moreover, the state court’s findings of fact are presumed to be correct, and the federal court only reviews the facts for clear and convincing error.” Id., at 385.
The Fifth Circuit concluded that the district court had paid proper deference to the state court record and had reached a correct determination in granting the writ of habeas corpus. Id. The appeals court further found that Koon had satisfied the dual mandate of Strickland v. Washington, 466 U.S. 668 (1984) in making his ineffective assistance claim: Monahan’s performance was deficient and (2) that deficient performance caused actual prejudice to the defendant’s defense. Id., 466 U.S. at 687.
To prove deficient performance under Strickland, a state prisoner must “demonstrate that counsel’s representation fell below an objective standard of reasonableness” under the then “prevailing professional norms.” Id., 466 U.S. at 688. The Supreme Court has recognized that the American Bar Association Standards for Criminal Justice is the barometer for measuring “what is reasonable.” See: Rompilla v. Beard, 545 U.S. 374, 387 (2005). While the Fifth Circuit applies a strong presumption that counsel performed adequately and insulates his informed tactical decisions from ineffectiveness attack unless they are so egregious as to render the entire trial unfair, the appeals court has recognized the distinction between strategic judgment decisions and omissions that amount to no strategic decision at all. See: Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir. 2006); Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).
Deficient performance alone is not enough to secure ineffective assistance relief. The state prisoner must establish prejudice by showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to under confidence in the outcome.” Id., 466 U.S. at 694. The Fifth Circuit has interpreted this prejudice requisite to mean that there is a harmful constitutional trial error only if there is “more than a reasonable probability that it contributed to the verdict.” See: Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999).
The Fifth Circuit applied the foregoing principles of law to the Koon case. It endorsed the four “crucial mistakes” the district court identified Monahan had made that resulted in ineffective assistance: 1) his failure to interview Robinson before trial; 2) his waiting until one day before trial to hire Zimmerman, his mental health expert; 3) his decision to proceed alone without the aid of at least one other attorney; and 4) his failure to prepare Koon adequately to testify. The appeals court also endorsed the conclusion by the district court that Monahan’s failure to interview Robinson, standing alone, constituted constitutionally deficient performance. The appeals court agreed that this fatal mistake, along with a litany of other missteps by Monahan, created egregious prejudice. Id., 277 Fed.Appx. at 386. The appeals court then explained its reasoning:
”Monahan’s defensive strategy centered on Koon’s mental state at the time of the killings, and Robinson was the only eyewitness to them and to Koon’s behavior in the hours preceding the shootings. As such, she was the only person who could speak to Koon’s mental state leading up to and during the event. Monahan should have interviewed her to ascertain what she intended to say at trial, especially whether she would corroborate Koon’s intended testimony about his mental state, around which Monahan’s entire defense was structured. Monahan failed even to attempt to interview her, though, and Robinson ultimately took the stand and directly contradicted Koon’s testimony that she had told him that his wife was having an affair. The prejudicial effect of this contradiction cannot be overstated because Monahan had theorized that Robinson’s testimony would bolster Koon’s ‘heat of passion’ defense, not undermine it. Furthermore, Robinson subsequently recanted her trial testimony at the federal evidentiary hearing and admitted that she had told Koon about the affair before the killings, stating further that she would have told the truth at trial if Monahan had merely approached her ahead of time and assured her that she would not be held criminally responsible for the killings.
”The State advances a number of excuses for Monahan’s failure to interview Robinson, e.g., it was his policy not to interview government witnesses; there was no guarantee that she would have come clean and told the truth at trial even if she had been approached by Monahan; she was not a credible witness; and so on and so forth–none of which justify his conduct. Irrespective of Robinson’s credibility (or lack thereof) and whether she would have actually told the truth as she now insists, Monahan had an absolute obligation to interview her as the only eyewitness to the crime: Her testimony was crucial to Monahan’s defensive theory. If he had interviewed her and then decided not to call her to testify, his decision might be excusable as strategic. His failure to interview her altogether, though, is deficient per se, at least under the specific circumstances present here.
“Monahan’s decision not to hire Zimmerman, his primary mental health expert, until one day before trial exacerbates his overall deficient performance. Monahan came up with the detoxification facet of the mental health defense because Koon had told him that he was not using drugs or alcohol when he shot his wife and her parents (Koon later revealed, during the federal evidentiary hearing, that he was in fact using at the time). Zimmerman was able to conduct a few tests on Koon, but only met with him for one hour and could not consult with any of his family members or friends before testifying. The State’s opposing expert, Hoppe, severely undermined Zimmerman’s testimony, highlighting the limited time and information available to Zimmerman. This rebuttal testimony went uncontested by Monahan. In fact, Zimmerman was not even present for Hoppe’s testimony, as Monahan had failed to ensure that Zimmerman was on hand to assist Monahan in cross-examination. At the federal evidentiary hearing, Koon’s experts testified that Zimmerman had insufficient time to develop a complete psychological history and insufficient information on which to base an opinion of Koon’s mental state at the time of the killings, which left Zimmerman’s testimony vulnerable to attack and resulted in severe damage to the detoxification aspect of Koon’s mental health defense.
”The State attempts to make much of the fact that Koon’s experts at the federal evidentiary hearing had the benefit of basing their testimony on Koon’s revelation that he actually had been using drugs and alcohol at the time of the killings, insisting that Koon’s self-serving change in testimony cannot serve as the basis for arguing that Monahan’s assistance was ineffective. Even if we acknowledge that Koon’s defense would have been better served if he had admitted his drug and alcohol use, and even if we concede that Koon is solely to blame for the detoxification theory employed by Monahan, we still must evaluate the actual execution and quality of the defense as presented. And, it is apparent that this aspect of Koon’s defense, predicated as it was on the effects of withdrawal, was hamstrung by Monahan’s failure to hire Zimmerman until the eve of trial. The state court had granted Monahan the authority and funds to hire a mental health expert nearly a year before trial, yet he procrastinated until the last minute. Not only did Monahan make a questionable decision to pursue a detoxification defense on his own (without first consulting a medical professional and substantiating his theory), but he then severely limited the effectiveness of even that questionable defense by enlisting an expert who was not given even minimally sufficient time to gather information in support of his opinions.
”Considering Monahan’s failure to interview Robinson and his botched handling of Zimmerman, together with his other deficiencies identified by the district court, we see as inescapable the conclusion that Monahan’s performance was deficient during the guilt/innocence phase of Koon’s trial. Equally inescapable is the conclusion that Koon was prejudiced by Monahan’s deficient performance: There is a reasonable probability that the jury would have convicted Koon of a lesser offense than first degree murder if Monahan’s performance had not been deficient.
”If Monahan had interviewed Robinson before trial, she may have told the truth instead of controverting Koon’s testimony regarding his mental state at the time of the killings. It follows that the jury could have and likely would have given greater consideration to the ‘heat of passion’ aspect of Koon’s defense. If, on the other hand, Robinson had continued to insist on denying that she had told Koon about his wife’s affair after Monahan interviewed her, he would have been aware of Robinson’s intended testimony and could have adjusted his defensive strategy accordingly and mitigated the damaging effects of Robinson’s testimony. Furthermore, if Zimmerman had been retained a reasonable time in advance of trial, he would have had plenty of time to evaluate Koon and interview his friends and family. That way, Zimmerman could have formulated a more informed opinion on Koon’s mental state and been prepared to support and defend that opinion on cross-examination. In short, if Monahan’s performance had not been deficient and prejudicial, it is probable that Koon’s level of culpability would have been reduced in the eyes of the jury. These failings by Monahan, which subverted both the insanity and manslaughter aspects of Koon’s defense, undermine any confidence we might otherwise have in the propriety of his first degree murder conviction. Based on the foregoing considerations, the state court’s ruling that Koon was not denied effective assistance of counsel during the guilt/innocence phase of his trial is objectively unreasonable.” Id., at 386-89 [Emphasis original].
It is never easy to judge an attorney’s performance constitutionally deficient based on hindsight evaluation. But this is a relatively easy call in the Koon case. While the attorney had identified a viable defense, his actual performance amounted to no defense at all – or, as the Fifth Circuit put it, his performance “subverted both the insanity and manslaughter aspects of Koon’s defense.”
The Death Penalty Information Center has observed quite aptly on this issue:
“Perhaps the most important factor in determining whether a defendant will receive the death penalty is the quality of the representation he or she is provided. Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. There have even been instances in which lawyers appointed to a death case were so inexperienced that they were completely unprepared for the sentencing phase of the trial. Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol. The right to an attorney is a vital hallmark of the American judicial system. It is essential that the attorney be experienced in capital cases, be adequately compensated, and have access to the resources needed to fulfill his or her obligations to the client and the court.”
It is our firm belief that the only way to truly reform the death penalty system is to abolish the punishment. The courts will never appoint rich and powerful attorneys on a regular basis in death penalty cases. The quality of representation in these cases will most always be lacking because most appointed attorneys do not have the time (due to heavy caseloads), the means (such as support staff) to amass a viable defense, or the resources (finances for experts and investigators) to support that defense. A person’s life should not hang in the balance based on the quality of legal representation he or she receives. Further more, our judicial system, as good as it is, obviously allows for erroneous conclusions by juries. Just look at the number of convicts exonerated by DNA evidence. Those people had their day in court before a fair jury, right? It is simply the nature of the beast that some jury verdicts will be wrong. We should not allow the ultimate penalty, from which there is no return, to rest in such an imperfect dispute resolution system. Do away with the punishment – and this ugly controversy ceases to exist.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair