Free Other Notice - District Court of Arizona - Arizona

1 Jon M. Sands Federal Public Defender 2 Dale A. Baich (Ohio Bar No. 0025070) Sylvia J. Lett (Arizona Bar No. 017326) 3 Assistant Federal Public Defenders 850 West Adams Street, Suite 201 4 Phoenix, Arizona 85007 (602) 382-2816 5 (602) 889-3690 (facsimile) [email protected] 6 [email protected] 7 8 9 10 11 12 13 14 15 16 vs. Dora Schriro, et al., Respondents. Petitioner Anthony Marshall Spears supplements his First Amended Petition for Anthony Marshall Spears, Petitioner, No. CIV 00-1051-PHX-SMM DEATH PENALTY CASE Notice of Supplemental Authorities IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

17 Writ of Habeas Corpus ("First Amended Petition") (District Court Docket Entry 18 Number ("Doc. No.") 79), Motion for Evidentiary Development (Doc. No. 105), and 19 Motion to Expand the Record under Rule 7 (Doc. No. 102) previously filed with the 20 Court. Spears supplements his argument on ineffective sentencing counsel with the 21 following recent decisions: In Frierson v. Woodford, ____ F.3d ____, No. 04-99002, 2006 WL 2621062 22 23 (9th Cir. Sept. 14, 2006), the court found counsel ineffective for not investigating the 24 same evidence available to Spears's counsel: childhood head trauma, possible organic 25 brain dysfunction and substance abuse. Frierson, 2006 WL 2621062, at *1. 26 "Although counsel's duty to seek out evidence of mitigation is not limitless, . . . the 27 failure to pursue avenues of readily available information ­ such as school records, 28 juvenile court and probation reports, and hospital records ­ may constitute deficient
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1 performance." Frierson, __ F.3d at __, 2006 WL 2621062, at *6. 2 Likewise, Spears's attorney failed to provide medical, psychiatric, 3 psychological or jail records to his evaluating doctor and he did not request family 4 background from anyone other than Spears's mother in preparing for the penalty 5 phase of trial. First Amended Petition (Doc. No. 79 at 94); Motion for Evidentiary 6 Development (Doc. No 105 at 26). Spears's attorney failed to adequately present 7 evidence such as severe violence and childhood abuse, childhood head injuries, drug 8 use and organic brain dysfunction. First Amended Petition (Doc. No. 79 at 94-5); 9 Motion for Evidentiary Development (Doc. No. 105 at 26); Motion to Expand the 10 Record under Rule 7 (Doc. No. 102 at 17-26, 62-63). 11 In Williams v. Anderson, 460 F.3d 789 (6th Cir. 2006), a residual doubt strategy 12 was rejected as an excuse for failing to investigate mitigation. 460 F.3d at 804. 13 "Counsel's decision to focus on residual doubt alone could not constitute a reasonable 14 trial strategy because defense counsel never conducted an investigation into mitigation 15 before deciding to pursue residual doubt." Id. 16 Williams' counsel did not seek, inter alia, a neurological or mental health 17 evaluation. Williams, 460 F.3d at 802-03. Similarly, Spears's counsel failed to 18 investigate Spears's mental health, despite being aware of Spears's childhood abuse 19 and head trauma as well as drug use and possible organic brain dysfunction. First 20 Amended Petition (Doc. No. 79 at 95); Motion for Evidentiary Development (Doc. 21 No. 105 at 26); Motion to Expand the Record under Rule 7 (Doc. No. 102 at 17-26, 22 62-63). Therefore, any alleged "strategy" to forego mitigation cannot be given 23 credence because the reasonable investigation needed to support this decision was 24 never completed. Williams, 460 F.3d at 804. 25 Williams is also instructive on the issue of prejudice. Similar to Spears's 26 childhood experiences of severe violence and abuse, Williams grew up in an 27 environment in which violence was commonplace and expected. Id. at 804-05. The 28 Sixth Circuit cited this as the type of evidence which creates a reasonable probability
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1 that one juror would have voted against death. Id. 2 In Dickerson v. Bagley, 453 F.3d 690 (6th Cir. 2006), "trial strategy and tactics" 3 were cited by the lower courts as a reason to excuse counsel's failure to investigate 4 mitigating evidence. 453 F.3d at 692. However, Dickerson rejected this reasoning 5 because the necessary investigation was not completed before the "strategy decision" 6 was made. Id. at 697. Strategic choices are not truly strategic if the mitigating facts 7 are unknown to counsel. Id. at 696. 8 Citing the 2003 ABA Guidelines, Dickerson provides great detail about what 9 a capital mitigation investigation requires. Id. at 693-94. "[P]enalty phase preparation 10 requires extensive and generally unparalleled investigation into personal and family 11 history." Id. at 694. Because of these duties, it is inexcusable for counsel to "sit idly 12 by, thinking that investigation would be futile." Id. 13 Counsel for Spears conducted almost no investigation and failed to retain a 14 neuropsychologist or forensic psychologist to evaluate Spears concerning his organic 15 brain dysfunction. First Amended Petition (Doc. No. 79 at 93-95); Motion for 16 Evidentiary Development (Doc. No. 105 at 25-26). Failing to obtain a proper doctor 17 severely limited the mitigation investigation. Additionally, Spears's attorney did not 18 provide medical, psychiatric, psychological or jail records to Spears's evaluating 19 doctor. First Amended Petition (Doc. No. 79 at 94); Motion for Evidentiary 20 Development (Doc. No. 105 at 26). Spears's attorney also failed to request family 21 background from anyone other than Spears's mother in preparing for the penalty 22 phase of trial, despite the availability of thirteen friends and family members willing 23 to testify to Spears's childhood abuse, drug use and head injuries. First Amended 24 Petition (Doc. No. 79 at 94); Motion for Evidentiary Development (Doc. No. 105 at 25 26); Motion to Expand the Record under Rule 7 (Doc. No. 102 at 69). "It is not 26 reasonable to refuse to investigate when the investigator does not know the relevant 27 facts the investigation will uncover." Dickerson, 453 F.3d at 696. 28 In Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. 2006), the state postPage 3 of 5 Case 2:00-cv-01051-SMM Document 127 Filed 10/04/2006 Page 3 of 5

1 conviction courts determined that trial counsel's strategy was to show the defendant 2 was not dangerous and was a peaceful person. 454 F.3d at 576. However, this 3 "strategy" was insufficient to excuse counsel's actions because "any mitigation 4 strategy to portray Poindexter as a peaceful person was unreasonable since that 5 strategy was the product of an incomplete investigation." Id. at 581. 6 Similarly, Spears's counsel failed to properly investigate Spears's mental 7 health, despite being aware of Spears's severe childhood abuse, head injuries, drug use 8 and Post-Traumatic Stress Disorder. First Amended Petition (Doc. No. 79 at 94); 9 Motion for Evidentiary Development (Doc. No. 105 at 26); Motion to Expand the 10 Record under Rule 7 (Doc. No. 102 at 17-26, 62-63). Aside from Spears's attorney 11 failing to retain neurological experts, he also wholly failed to utilize Spears's medical, 12 psychiatric, psychological and jail records in investigating his client's mental 13 condition. First Amended Petition (Doc. No. 79 at 94); Motion for Evidentiary 14 Development (Doc. No. 105 at 25-26). Finally, like the inadequate investigation in 15 Poindexter, evidence of generations of abuse was not investigated and presented to 16 the jury. Motion to Expand the Record under Rule 7 (Doc. No. 102 at 15-16). 17 Consequently, any alleged "strategy" is entitled to no weight because the investigation 18 required to make this decision was never completed. 19 Poindexter is also instructive on prejudice. Like counsel in Spears's, counsel 20 in Poindexter could have instead presented the sentencer with "a fuller and more 21 accurate description of Poindexter's troubled childhood." 454 F.3d at 580. Evidence 22 of a background of abuse and neglect is exactly the type of evidence which creates a 23 reasonable probability that the sentencer would not have imposed a death sentence. 24 Id. at 581. 25 26 ... 27 ... 28
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Respectfully submitted this 4th day of October, 2006. Jon M. Sands Federal Public Defender Dale A. Baich Sylvia J. Lett By s/Sylvia Lett Counsel for Petitioner

On this 4th day of October, 2006, I electronically transmitted the attached 8 document to the Clerk's Office using the CM/ECF system for filing and transmittal of a notice of electronic filing to the following CM/ECF registrants: 9 10 Jon Anderson Assistant Attorney General 11 Attorney General's Office Capital Litigation Section 12 1275 West Washington Street Phoenix, Arizona 85007-2997 13 Anthony Marshall Spears, ADOC #97352 14 ASPC - Eyman, SMU II P. O. Box 3400 15 Florence, AZ 85232 16 17 18 19 20 21 22 23 24 25 26 27 28
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By: s/Tamelyn Booterbaugh Tamelyn Booterbaugh Secretary, Capital Habeas Unit