Seeking Direction on Mitigation Evidence

Pennsylvania Law Weekly
September 13,2010

Last month, the Pennsylvania Supreme Court affirmed a Post Conviction Relief Act court decision to grant a new sentencing hearing for a man condemned to death for a 1993 Lebanon County murder.

The majority opinion in Commonwealth v. Martin , written by Justice Max Baer, was premised on the PCRA court finding that Bradley Martin's trial counsel was ineffective for failing to investigate, and present, evidence regarding Martin's mental health.

Baer alluded to some confusion created by recent court decisions on the issue. He wrote, "[W]e recognize that resolution of a claim that counsel was ineffective for failure to present mitigating evidence has proven, in the recent past, to be quite difficult, resulting in several divided opinions of this court."

Chief Justice Ronald D. Castille, in a concurring opinion, addressed, "the majority's characterization of this court's 'divided opinions' concerning mitigation claims."

Castille noted "that the U.S. Supreme Court has issued a series of decisions in this area" and acknowledged the difficult nature of evaluating ineffective assistance of counsel claims as a result of failing to present mitigation evidence. He suggested consistency may be gleaned from a series of recent U.S. Supreme Court decisions.

How did this issue make its way to the Pennsylvania Supreme Court?

In 1994, Martin was convicted of first degree murder and sentenced to death for killing a 74-year-old man with whom he had corresponded while serving a sentence in the Lebanon County Jail. His girlfriend, Carol King, received the same sentence.

Martin filed a PCRA petition, alleging, among other things, that his trial counsel was ineffective for failing to present mitigation evidence regarding his mental health, during the penalty phase of his trial. After an evidentiary hearing, the PCRA court found there was merit to Martin's claim. An appeal followed.

The Pennsylvania Supreme Court upheld the decision of the PCRA court. Baer wrote, "[T]he PCRA court underwent a painstaking analysis regarding the claim that trial counsel was ineffective for failing to investigate and present mental health mitigating evidence ... we affirm the order of the PCRA court."

The seminal case in the area of ineffective assistance of counsel is the 1984 U.S. Supreme Court decision Strickland v. Washington .

In that case, the high court set forth a two-prong test to determine whether a defendant received ineffective counsel. First, trial counsel's performance must be deficient. In order to find a deficient performance, the defendant must demonstrate that counsel's representation fell below an "objective standard of reasonableness."

Second, the deficient performance must have prejudiced the defense so as to deprive the defendant of a fair trial. Prejudice is shown by proving the result would have been different, but for counsel's unprofessional errors.

Within the framework established by Strickland , it would be instructive to examine the five U.S. Supreme Court decisions Castille suggested would provide much needed guidance in the sometimes convoluted area of mitigation evidence.

In a 2009 decision, Porter v. McCollum , a Florida court convicted George Porter of murder and sentenced him to death. Porter argued that his attorney's failure to present evidence about his war record and how it left him a changed man violated his right to effective counsel.

The U. S. Supreme Court held that Porter's Sixth Amendment right to effective counsel was violated.

The court found there was a "reasonable probability" that Porter's sentence would have been different if the jury had heard the mitigating evidence that his attorney failed to uncover or present.

In Bobby v. Van Hook , another 2009 case, an Ohio court convicted Robert J. Van Hook of aggravated murder and sentenced him to death. The 6th U.S. Circuit Court of Appeals found that Van Hook's lawyers performed deficiently in investigating and presenting mitigating evidence during sentencing.

The U.S. Supreme Court overturned the 6th Circuit. The court chided the 6th Circuit for adopting the American Bar Association's 2003 "Guidelines" to evaluate Van Hook's counsel. The ABA Guidelines are not mandates; they are merely evidence of what a reasonably diligent lawyer would do in a similar situation. Even assuming that an appropriate standard was used to evaluate Van Hook's counsel, the court held that his attorneys acted reasonably.

In Wong v. Belmontes , a third 2009 case, a California court convicted Fernando Belmontes of murder and sentenced him to death.

The 9th U.S. Circuit Court of Appeals found that Belmontes' attorney failed to prepare and present sufficient evidence to humanize Belmontes, which may have mitigated his sentence.

The U.S. Supreme Court reversed the 9th Circuit. The court held that while a competent attorney may have included more mitigating evidence at sentencing, there was no reasonable probability that more evidence would have led to a different sentence.

A more recent case, Smith v. Spisak , came down earlier this year. In that case, Frank Spisak was convicted of murder in an Ohio court and sentenced to death. The 6th Circuit ordered a new sentence hearing, finding Spisak's counsel was ineffective in his presentation of his closing argument at sentencing.

The U.S. Supreme Court disagreed.

The court held that even though counsel's closing argument was inadequate, there was no "reasonable probability" that a better closing argument would have made a significant difference in Spisak's sentence.

And in another 2010 opinion, Wood v. Allen , Holly Wood was convicted in an Alabama court of first degree murder and sentenced to death. The 11th U.S. Circuit Court of Appeals held that Wood's counsel was not ineffective. The court found that Wood's attorneys acted reasonably when they decided it was in Wood's best interest to leave out information that illustrated his mental deficiencies.

The U.S. Supreme Court agreed, finding that the record indicated that counsel's failure to pursue or present evidence of the defendant's mental deficiencies was the result of a deliberate decision to focus on other defenses.

Five decisions, originating out of three circuit courts finding that trial counsel was, at times, effective and ineffective is both instructive and a bit overwhelming.

Baer's admonition in Martin seems fitting: "No two capital defendant's will have the same life histories and no two counsel will proceed in the identical manner."