Row v. Miller
| Docket Number | Case No. 1:98-cv-00240-BLW |
| Decision Date | 30 September 2021 |
| Citation | 591 F.Supp.3d 778 |
| Parties | Robin Lee ROW, Petitioner, v. Bona MILLER, Respondent. |
| Court | U.S. District Court — District of Idaho |
Bruce D. Livingston, Federal Defender's Office, Boise, ID, Jonah Horwitz, Deborah Anne Czuba, Christopher Sanchez, Federal Defender Services of Idaho Inc., Boise, ID, for Petitioner.
L. LaMont Anderson, Kale D. Gans, Office of Attorney General, Criminal Law Division, Boise, ID, for Respondent.
ORDER AND NOTICE OF INTENT TO GRANT WRIT OF HABEAS CORPUS ON SENTENCING CLAIMS
On February 10, 1992, Petitioner Robin Row ("Robin" or "Row") was convicted of arson of her rented duplex and first degree murder of her husband, Randy Row ("Randy"), and her two children, Joshua Cornellier ("Joshua") and Tabatha Cornellier ("Tabatha"), all of whom died in the fire. Row received the death penalty. After exhausting her state court remedies, she sought habeas corpus relief in federal court in 1998. See Dkts. 1, 4, 60, 293. Bona Miller, Row's custodian at the Pocatello Women's Correctional Center, is the Respondent ("the State").
On August 29, 2011, the Court entered an Order and Judgment denying federal habeas corpus relief on her Second Amended Petition. Dkts. 545, 293. On September 26, 2011, Row filed a Motion to Alter or Amend Judgment requesting, among other relief, that the Court retain this case until the United States Supreme Court issued its decision in Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). After Martinez was issued, Row filed an Amended Motion to Alter or Amend Judgment. Dkt. 572. Later, the United States Court of Appeals for the Ninth Circuit issued a decision particularly relevant to Row's reconsideration request: Dickens v. Ryan , 740 F.3d 1302 (9th Cir. 2014) (en banc ). Dickens held that an inadequately supported claim that was decided on the merits in state court can become a "new" procedurally defaulted claim on federal habeas review if the petitioner tries to offer new evidence that changes the factual basis of the claim such that it has become "fundamentally altered." Id. at 1318–19.
Row asked the Court to apply the Martinez exception to several of her claims to permit a de novo merits review. The Court granted in part Row's Amended Motion to Alter or Amend Judgment, permitting her to proceed to an evidentiary hearing to demonstrate that the Martinez exception should be applied to Claims 7 ¶ 81 (b), (e), and (h), all limited to organic brain dysfunction subject matter:
taken of Row revealing an atrophy of the brain." Id.
• Claim 7 ¶ 81(h): sentencing counsel were ineffective for their "[f]ailure to investigate, develop, and present evidence rebutting aggravating evidence considered by the trial court." Id.
See Dkt. 600.
The Court held an evidentiary hearing on the Martinez issues on June 5 through 9, 2017. Dkts. 701 to 705. Row did not attend the hearing. The parties filed Post-Hearing Opening Briefs (Dkts. 718, 750) and Responses (Dkts. 751, 752), with post-hearing briefing completed on May 31, 2019. As factfinder, the Court heard the witnesses, observed their demeanor at the evidentiary hearing, asked them clarifying questions, permitted counsel to cross-examine the witnesses on their clarifying answers, and reviewed the full record, including the state court record and the evidence admitted at the evidentiary hearing.
The Court concludes that Row has met the Martinez threshold by showing substantiality of Claims 7 ¶ 81(b), (e), and (h). Moreover, the Court preliminarily concludes that Row has presented sufficient evidence to show that she will prevail on the merits of these three sentencing claims. Therefore, unless the State can sufficiently rebut the Court's findings and conclusions in this Order (with a merits evidentiary hearing, if necessary), the Court will grant the writ on these three sentencing claims, vacate her death sentence, and order that Row's custodian (1) be permanently enjoined from carrying out her current death sentence and (2) produce her at a state court proceeding to be resentenced, if applicable. Therefore, the Court issues this Order granting Petitioner's Martinez motion and giving the parties notice that it intends to grant the writ as to sentencing only. The parties may respond according to the schedule set forth below.
If there ever was a "perfect storm" in the medicolegal world, this case is it. Testifying experts agree that Row has longstanding and likely congenital cerebellar atrophy, as well as cerebral cortical atrophy. "Atrophy" means a reduced size of the brain's components. The experts tend to agree that Row had a cluster of atypical test results on her neuropsychological testing. However, the experts disagree whether Row's extraordinarily poor judgment and repetitive criminal behavior can be attributed to her brain abnormalities, which would tip the scales away from the death penalty. The worst of Row's life history shows that it is very likely she killed her one-year-old daughter Kristina in 1977 to unburden herself; it is also very likely she killed her six-year-old son Keith in 1980 to unburden herself and obtain over $20,000 in life insurance proceeds; and it is clear that she killed Joshua, Tabatha, and Randy in 1992 to unburden herself and obtain over ten times the amount of life insurance proceeds she received for Keith's death.
At the time of Row's sentencing hearing, two CT scans
existed that objectively showed the two areas of brain atrophy, and scientific research existed that linked atrophy in those parts of the brain to deficits in empathy, judgment, and decisionmaking. Yet none of this evidence was presented at sentencing.
As early as April 7, 1992, ninety days after the crimes, Ada County investigator Gary Raney gathered sufficient facts to piece together a vivid mosaic of Row's extraordinarily bizarre life history from records and interviews of people who knew her, including law enforcement officers, social workers, psychologists, friends, and family members. Detective Raney compiled an April 1992 supplemental police report that included four references to Row having undergone a CT scan
after she fainted and hit her head at work just a month prior to the 1992 murders. Trial counsel did not gather and review Row's medical records from 1992 in their investigation. To a neurologist, the 1992 CT scan image shows that Row's brain abnormalities existed before she was charged with the three murders at issue, even though the radiologist reported at the time that the scan was "normal," because he was primarily looking for fall injuries.
Trial counsel first consulted with psychologist Dr. Craig Beaver to determine whether there were psychological issues relevant to the guilt or penalty phase. Dr. Beaver did not ask counsel to gather Row's medical records for his review. Row herself might have revealed to Dr. Beaver that she had a prior head injury
or CT scan, hinted at in this colloquy at the post-conviction hearing:
Q. Okay. You talked about a CAT scan
, that was done in 1991 on Robin Row. How were you aware of that CAT scan ?
A. Well, I only recently saw that CAT scan, but I—when I had originally interviewed Robin Row back in June of 1992, she had indicated that she had a –
Q. Let me stop you there, Doctor [Beaver]. I think that's going beyond the scope of my question. It's fair to say, then, that you have seen the ‘9[2] CAT scan ; correct?
A. Yes, I have.
State's Lodging B-12, pp. 123-24. We do not know what the answer to that question would have been, but it does not bear on counsel's independent duties to investigate mitigating evidence for Row.
It was Dr. Beaver's usual practice to review the criminal records associated with a case. He charged three hours’ time for a "records review" in Row's case. Because Dr. Beaver has long since destroyed his office records from the early 1990s, we do not know exactly what Dr. Beaver reviewed in Row's case.
We do know that Dr. Beaver did not perform or suggest any neurological or neuropsychological reviews or tests for Row, despite Row's possible disclosure of a prior CT scan
directly to hm, despite the references to a CT scan and an outline of Row's bizarre life history in the police report, and despite the probability that she committed repeated acts of filicide.1 Had Dr. Beaver administered neuropsychological testing, he would have discovered anomalies pointing to a brain disorder. Had a neurologist reviewed the 1992 CT scan, the defense team would have discovered that the neuropsychological test results correlated with the CT scan results.
Dr. Beaver interviewed Row and administered two personality tests to her, which showed borderline personality and anti-social personality disorder (ASPD) traits. Many professionals who have not reviewed Row's brain scans and correlating neuropsychological test results have similarly labeled Row—including a prior psychologist in conjunction with a 1982 dependency action over Joshua when he was an infant, the attending physician for Row's 1993 suicide attempt, and the state's expert in the 1992-1993 criminal action. In 1992-1993, lawyers and psychologists alike knew, by their medicolegal experience, that an ASPD diagnosis was considered an aggravating factor and an almost-certain ticket to the execution chamber. For that reason, trial counsel decided they would not use Dr. Beaver as an expert witness for mitigation purposes.
In 1993, while awaiting trial, Row tried to commit suicide in the Ada County Jail. As part of the hospital diagnosis and treatment, she...
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