Glenn v. Tate

• Decision Date: 26 February 1996
• Docket Number: No. 93-3568,93-3568
• Citation: 71 F.3d 1204
• Parties: John GLENN, Petitioner-Appellant, v. Arthur TATE, Jr., Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1204

71 F.3d 1204

John GLENN, Petitioner-Appellant, v. Arthur TATE, Jr., Warden, Respondent-Appellee.

No. 93-3568.

United States Court of Appeals, Sixth Circuit.

Argued April 5, 1995.

Decided Dec. 21, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 26, 1996.

William S. Lazarow, Jane P. Perry (argued and briefed), Public Defender's Office, Ohio Public Defender Commission, Columbus, OH, for Petitioner-Appellant.

Donald G. Keyser, Asst. Attorney Gen. (argued and briefed), Office of the Attorney General of Ohio, Columbus, OH, for Respondent-Appellee.

Before: GUY, NELSON, and SILER, Circuit Judges.

NELSON, J., delivered the opinion of the court, in which GUY, J., joined. SILER, J. (pp. 1212-14), delivered a separate opinion concurring in part and dissenting in part.

DAVID A. NELSON, Circuit Judge.

This is an appeal from the denial of a writ of habeas corpus sought by an Ohio prisoner who is under a sentence of death, imposed on the recommendation of a jury, for aggravated murder. The petitioner contends, among other things, that he failed to receive effective assistance of counsel, to his prejudice, at the sentencing phase of his trial.

Under Ohio law, the defendant in a murder case that is tried to a jury cannot be sentenced to death unless the jury finds, beyond a reasonable doubt, that the aggravating circumstance--here the fact that the victim was a peace officer--outweighs any mitigating circumstances. Perhaps the most significant of the potentially mitigating circumstances in this case was the fact that, according to evidence elicited after sentence had been imposed, the petitioner--a young man who had been classified in school as mentally retarded, who was apparently acting at the instigation of an older brother, and who was highly susceptible to suggestion by people he admired--suffered from global brain damage sustained before he was born. Expert testimony that the petitioner's brain function was organically impaired would have been readily available if the petitioner's lawyers had sought it. They failed to do so--and they compounded this error by a series of mistakes which, among other things, led to the jury being presented with uncontradicted expert evidence that the offense was not the product of mental retardation or organic brain disease.

So serious were the lawyers' mistakes, in our view, that the lawyers were not functioning as the "counsel" to which the accused was entitled under the Sixth Amendment. And because of the lack of adequate representation, the result reached in the sentencing proceeding was simply not reliable. While affirming the denial of habeas relief insofar as the petitioner's murder conviction is concerned, we shall direct that the writ of habeas corpus be granted unless the petitioner is resentenced.

I

Although the petitioner, John Glenn, has consistently maintained his innocence, the prosecution presented strong evidence that it was he who shot and killed a part-time deputy sheriff, John Litch, Jr., in October of 1981. The shooting occurred during an attempt to free Robert Glenn, an older brother of John Glenn, from the deputy's custody.

Robert Glenn, an inmate at the Mahoning County jail in Youngstown, Ohio, was periodically taken to a local hospital for treatment of a broken leg. He apparently devised a plan for an escape to be staged en route to the hospital, and he got John Glenn to help him carry the plan out. (Robert was later tried and convicted on charges of escape and involuntary manslaughter, and the evidence presented at his trial was characterized by the prosecution as showing that it was Robert Glenn who planned the escape; "his signature is all over this escape plan," the prosecution argued in Robert Glenn's case.)

Deputy Sheriff Litch drew the assignment of driving Robert to the hospital on the day in question. Before the trip was completed, the evidence showed, a turquoise and black car struck the deputy's vehicle from the rear at a busy intersection. When the deputy got out of his cruiser and approached the driver of the other car, the latter shot him at point-blank range with a sawed-off shotgun. The victim died almost immediately.

Robert Glenn and the other man fled the scene in the car. John Glenn was arrested a few hours later at the home of his girlfriend, Alseen Lanier. Ms. Lanier testified at trial that John told her he had killed a police officer and that she should keep this a secret.

At approximately the same time as the shooting, Otis Simmons, an acquaintance of John Glenn, was stopped by a police officer for reasons unrelated to the homicide. While Simmons was in the officer's cruiser, a call came over the radio about the shooting of Deputy Litch. Simmons then told the officer that earlier in the day John Glenn had told him he was going to "escape" his brother Robert.

The crime occurred three days after the effective date of the 1981 legislation that cured constitutional defects in Ohio's death penalty law. See Ohio Rev.Code Secs. 2929.02 et seq. A Mahoning County grand jury indicted John Glenn, who was 19 years old at the time, for aggravated murder. The indictment specified that the victim of the offense was a peace officer engaged in his duties. The charge was one for which the death penalty could be imposed under Ohio Rev.Code Secs. 2929.03 and 2929.04(A)(6).

Publicity about the case was so extensive in the Youngstown area that the Mahoning County Common Pleas Court was unable to seat a jury after twenty-three days of voir dire. Mr. Glenn's appointed trial counsel moved for a change of venue, and the case was sent to nearby Portage County for trial.

Both Ms. Lanier and Mr. Simmons testified at the trial. In addition to their highly incriminating testimony, the prosecution introduced a chemical test which revealed that John Glenn had significant amounts of barium on this hands, consistent with the recent use of a weapon. There was evidence that Robert Glenn's mother had a turquoise and black car that had been driven by John Glenn on the morning of the murder. Plaster scrapings found in the car matched the plaster of Robert Glenn's leg cast.

The jury found John Glenn guilty as charged. A few days later, after a relatively brief evidentiary hearing on the sentence, the jury recommended imposition of the death penalty. The trial court accepted the recommendation.

After exhausting his state remedies on direct appeal and in post-conviction proceedings, Glenn petitioned the United States District Court for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied the petition, and this appeal followed.

II

The appellant's strongest argument is that he failed to receive effective assistance of counsel during the penalty phase of his trial. To obtain relief on such a ground, he must show both that his counsel's performance "fell below an objective standard of reasonableness" and that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 104 S.Ct. 2052, 2064-65, 2067, 80 L.Ed.2d 674 (1984).

The state court of appeals to which Glenn appealed from the trial court's denial of post-conviction relief concluded that the performance of Glenn's counsel was not objectively reasonable. The denial of relief was nonetheless upheld on the theory that Glenn could not demonstrate prejudice. An appeal from this decision was dismissed without opinion by the Supreme Court of Ohio.

Like the state court of appeals, the federal district court rested its disposition of the ineffective assistance question solely on the "prejudice" branch of the Strickland inquiry; the district court pretermitted the issue of whether the lawyer's performance could pass constitutional muster. We must review the entire question de novo, see Strickland, 466 U.S. at 698, 104 S.Ct. at 2067, and Sims v. Livesay, 970 F.2d 1575, 1579 (6th Cir.1992), and respect for our state and federal colleagues who have already examined the question prompts us to pay particularly close attention to the prejudice aspect.

Under Ohio's death penalty statute, the trial jury was required to weigh against the aggravating circumstances of the crime "the history, character, and background of the offender," among other things. Ohio Rev.Code Sec. 2929.04(B). The jury was also required to consider whether, "because of a mental disease or defect," the offender "lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." Ohio Rev.Code Sec. 2929.04(B)(3). And the jury was required to consider "[a]ny other factors that are relevant to the issue of whether the offender should be put to death." Ohio Rev.Code Sec. 2929.04(B)(7). The jury could consider none of these matters, of course, if the relevant facts were not placed before it.

Here the jury was given virtually no information on John Glenn's history, character, background and organic brain damage--at least no information of a sort calculated to raise reasonable doubt as to whether this young man ought to be put to death. It was not that such information could not be found, or that counsel made a reasoned decision to withhold the information for tactical or strategic reasons. The information was not presented to the jury because counsel never took the time to develop it. ¹

Although both of Glenn's court-appointed lawyers were experienced criminal defense attorneys, and although they had some eight months to get ready for sentencing proceedings necessitated by a verdict that could hardly have come as a surprise to them, evidence presented to the state trial court at a post-sentence hearing showed that the lawyers made virtually no attempt to prepare for the sentencing phase of the trial until after the jury returned its verdict of guilty. It was obvious, or should have been, that the sentencing phase was likely to be "the stage of the proceedings where counsel can do his or her client the most good," ...