Lawlor v. Zook, 17-6
Decision Date | 27 November 2018 |
Docket Number | No. 17-6,17-6 |
Parties | Mark Eric LAWLOR, Petitioner - Appellant, v. David W. ZOOK, Warden, Respondent - Appellee. |
Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Timothy Patrick Kane, FEDERAL COMMUNITY DEFENDER OFFICE FOR EASTERN DISTRICT OF PENNSYLVANIA, Philadelphia, Pennsylvania, for Appellant. Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Aren Adjoian, FEDERAL COMMUNITY DEFENDER OFFICE FOR EASTERN DISTRICT OF PENNSYLVANIA, Philadelphia, Pennsylvania; Emily Munn, BISCHOFF MARTINGALE, P.C., Norfolk, Virginia, for Appellant. Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Before MOTZ, DUNCAN, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Thacker wrote the opinion, in which Judge Motz and Judge Duncan joined.
A Virginia state court sentenced Mark Eric Lawlor to death after his conviction for the capital murder of Genevieve Orange. In recommending the death sentence, the sentencing jury found that there was a probability Lawlor "would commit criminal acts of violence that would constitute a continuing serious threat to society." Va. Code Ann. § 19.2–264.4.C. Lawlor exhausted state court direct appeal and post-conviction remedies. He then filed the instant federal petition for review of his death sentence pursuant to 28 U.S.C. § 2254, raising 18 claims. The district court dismissed his petition, and Lawlor appealed.
We granted a certificate of appealability on three issues raised in the federal petition, including whether it was constitutional error for the trial court to exclude expert testimony about Lawlor’s risk of future violence in prison. Specifically, the state court excluded specialized and relevant testimony of a qualified witness who would have explained that Lawlor "represents a very low risk for committing acts of violence while incarcerated," J.A. 1070,1 where the jury’s only choices were life in prison without parole ("LWOP") or death.
As more fully explained below, we conclude that the state court’s exclusion of the expert’s testimony was an unreasonable application of clearly established federal law. It is well established that "evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating," and "such evidence may not be excluded from the sentencer’s consideration." Skipper v. South Carolina , 476 U.S. 1, 5, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). Because we also conclude the state court’s error in this regard had a substantial and injurious effect, we reverse the district court’s decision and remand with instructions to grant relief.
In 2008, Lawlor worked as a leasing consultant at an apartment complex in Fairfax County, Virginia, and had access to keys to each apartment. On September 24, 2008, Lawlor consumed alcohol and a large amount of crack cocaine and sexually assaulted, bludgeoned, and killed a tenant in that complex, Genevieve Orange.
Lawlor v. Commonwealth , 285 Va. 187, 738 S.E.2d 847, 859 (2013).
Lawlor was indicted on March 16, 2009, in Virginia state court on two counts of capital murder: (1) premeditated murder in the commission of, or subsequent to, rape or attempted rape;2 and (2) premeditated murder in the commission of abduction with the intent to defile.3 On the eve of trial, Lawlor admitted "participation" in the murder. Lawlor , 738 S.E.2d at 859. In February 2011, Lawlor was convicted of both counts. He does not challenge any aspect of the conviction in this appeal.
After Lawlor’s conviction at the guilt phase of his trial, the jury proceeded to the penalty phase. Virginia law provides, "The penalty of death shall not be imposed unless the Commonwealth shall prove beyond a reasonable doubt that": (1) "there is a probability based upon evidence of the prior history of the defendant or of the circumstances surrounding the commission of the offense of which he is accused that he would commit criminal acts of violence that would constitute a continuing serious threat to society" (the "future dangerousness aggravator"); or (2) "that his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim" (the "vileness aggravator"). Va. Code Ann. § 19.2–264.4.C.
The Commonwealth presented evidence of aggravating factors supporting a death sentence. Lawlor then presented his mitigation case, which included around 50 witnesses, in support of a LWOP sentence. He called witnesses who testified about his alcohol and drug abuse; family witnesses; social history witnesses; experts who testified about addiction; and as discussed in depth below, an expert on prison risk assessment and adaptation, Dr. Mark Cunningham.
The jury found that both the vileness aggravator and future dangerousness aggravator were present in Lawlor’s case, and it returned a death sentence on each of the two murder counts. Thereafter, the trial court was charged with determining "whether the sentence of death is appropriate and just." Va. Code Ann. § 19.2–264.5. At sentencing on July 1, 2011, the trial court concluded there was "no reason to intercede and sentence [Lawlor] contrary to the recommendations of the jury in either count one or two," and imposed the death sentence. J.A. 1230.
Arguably the most contentious portion of the penalty phase was during the testimony of retained expert Mark Cunningham,Ph.D., a clinical psychologist and expert in prison risk assessment and adaptation. He evaluated Lawlor by interviewing him, his former probation officer, a friend, and a corrections supervisor; and by reviewing criminal records, prison records, mental health and rehabilitation records, school records, and employment records. Dr. Cunningham used Lawlor’s past behavior, as well as statistical data and actuarial models, to analyze Lawlor’s "potential to adjust to a life term in prison without serious violence." J.A. 552.
The first issue was whether Dr. Cunningham would be able to testify at all. Defense counsel proffered:
J.A. 869–70. The trial court ultimately ruled:
The Commonwealth objected: J.A. 873. The trial court explained, "The Supreme Court has been very clear; it is the society, it is not the prison society which he is maybe confined to -- it’s society, period." Id . at 874. Defense counsel then stated, "I would not put [Dr. Cunningham] on to say [Lawlor is not a risk of future dangerousness, period]." Id . at 875. The trial court then allowed Dr. Cunningham to take the stand.
On direct examination, Dr. Cunningham explained his methodology and the materials he reviewed. Defense counsel stated, "[S]pecifically regarding the facts and circumstances of Mr. Lawlor’s prior history, and the circumstances of the offense, [I want to turn to] whether Mr. Lawlor would commit criminal acts of violence that would constitute a continuing serious threat to society in the future." J.A. 955. The Commonwealth objected, and the trial court reiterated that society Id . at 957...
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