Sears v. Upton

• Decision Date: 29 June 2010
• Docket Number: No. 09–8854.,09–8854.
• Citation: 130 S.Ct. 3259,177 L.Ed.2d 1025,561 U.S. 945
• Parties: Demarcus Ali SEARS, Petitioner, v. Stephen UPTON, Warden.
• Court: U.S. Supreme Court

561 U.S. 945

130 S.Ct. 3259

177 L.Ed.2d 1025

Demarcus Ali SEARS, Petitioner,

v.Stephen UPTON, Warden.

No. 09–8854.

Supreme Court of the United States

June 29, 2010.

Robert Edwards

, Atlanta, GA, for petitioner.

Beth A. Burton

, Senior Assistant Attorney General, Counsel of Record, Atlanta, GA, for respondent.Opinion

PER CURIAM.

According to an expert who testified during state postconviction relief, petitioner Demarcus A. Sears performs at or below the bottom first percentile in several measures of cognitive functioning and reasoning. The cause of this abnormality appears to be significant frontal lobe brain damage Sears suffered as a child, as well as drug and alcohol abuse in his teens. But because—in the words of the state trial court—his counsel conducted a penalty phase investigation that was “on its face ... constitutionally inadequate,” App. to Pet. for Cert. 27B, evidence relating to Sears' cognitive impairments and childhood difficulties was not brought to light at the time he was sentenced to death.

After finding constitutionally deficient attorney performance under the framework we set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

, the state postconviction court found itself unable to assess whether counsel's inadequate investigation might have prejudiced Sears. App. to Pet. for Cert. 29B–30B. Because Sears' counsel did present some mitigation evidence during Sears' penalty phase—but not the significant mitigation evidence a constitutionally adequate investigation would have uncovered—the state court determined it could not speculate as to what the effect of additional evidence would have been. Id., at 30B. Accordingly, it denied Sears postconviction relief. Id., at 34B. Thereafter, the Supreme Court of Georgia summarily denied review of his claims. Id., at 1A.

For the reasons that follow, it is plain from the face of the state court's opinion that it failed to apply the correct prejudice inquiry we have established for evaluating Sears' Sixth Amendment claim. We therefore grant the petition for writ of certiorari, vacate the judgment, and remand for further proceedings not inconsistent with this opinion.¹

I

In 1993, a Georgia jury convicted Sears of armed robbery and kidnaping with bodily injury (which also resulted in death), a capital crime under state law. See Ga.Code Ann. § 16–5–40(d)(4)

(2006).² During the penalty phase of Sears' capital trial, his counsel presented evidence describing his childhood as stable, loving, and essentially without incident. Seven witnesses offered testimony along the following lines: Sears came from a middle-class background; his actions shocked and dismayed his relatives; and a death sentence, the jury was told, would devastate the family. See Pet. for Cert. 6–7. Counsel's mitigation theory, it seems, was calculated to portray the adverse impact of Sears' execution on his family and loved ones. 20 Record 5181. But the strategy backfired. The prosecutor ultimately used the evidence of Sears' purportedly stable and advantaged upbringing against him during the State's closing argument. With Sears, the prosecutor told the jury, “[w]e don't have a deprived child from an inner city; a person who[m] society has turned its back on at an early age. But, yet, we have a person, privileged in every way, who has rejected every opportunity that was afforded him.” Pet. for Cert. 7 (quoting trial transcript; internal quotation marks omitted).

The mitigation evidence that emerged during the state postconviction evidentiary hearing, however, demonstrates that Sears was far from “privileged in every way.” Sears' home life, while filled with material comfort, was anything but tranquil: His parents had a physically abusive relationship, Exh. 26, 6 Record 1676 (Affidavit of Demetrius A. Sears), and divorced when Sears was young, Exh. 22, id., at 1654 (Affidavit of Virginia Sears Graves); he suffered sexual abuse at the hands of an adolescent male cousin, Exh. 26, id., at 1681–1682; his mother's “favorite word for referring to her sons was ‘little mother fuckers,’ ” Exh. 3, 2 Record 265 (Affidavit of Richard G. Dudley, Jr., MD); and his father was “verbally abusive,” Exh. 37, 6 Record 1746–1747 (Affidavit of Carol Becci–Youngs),³ and disciplined Sears with age-inappropriate military-style drills, Exh. 3, 2 Record 263–264; Exh. 19, 6 Record 1622 (Affidavit of Frank Sears); Exh. 22, id., at 1651; Exh. 28, id., at 1694 (Affidavit of Kenneth Burns, Sr.). Sears struggled in school, demonstrating substantial behavior problems from a very young age. For example, Sears repeated the second grade, Exh. 6, 3 Record 500–501, and was referred to a local health center for evaluation at age nine, Exh. 7, id., at 503, 504, 508. By the time Sears reached high school, he was “described as severely learning disabled and as severely behaviorally handicapped.” Exh. A to Exh. 1, 2 Record 174–176 (Affidavit of Tony L. Strickland, M. S., Ph. D.).

Environmental factors aside, and more significantly, evidence produced during the state postconviction relief process also revealed that Sears suffered “significant frontal lobe abnormalities.” Exh. 1, id., at 147. Two different psychological experts testified that Sears had substantial deficits in mental cognition and reasoning—i.e., “problems with planning, sequencing and impulse control,” ibid.—as a result of several serious head injuries

he suffered as a child, as well as drug and alcohol abuse. See 1 Record 37–40 (Testimony of Dr. Strickland); id., at 95–96 (Testimony of Dr. Dudley). Regardless of the cause of his brain damage, his scores on at least two standardized assessment tests placed him at or below the first percentile in several categories of cognitive function, “making him among the most impaired individuals in the population in terms of ability to suppress competing impulses and conform behavior only to relevant stimuli.” Exh. 1, 2 Record 148; see also 1 Record 37. The assessment also revealed that Sears' “ability to organize his choices, assign them relative weight and select among them in a deliberate way is grossly impaired.” Exh. 1, 2 Record 149. From an etiological standpoint, one expert explained that Sears' “history is replete with multiple head trauma

, substance abuse and traumatic experiences of the type expected” to lead to these significant impairments. Id., at 150; see also 1 Record 44.

Whatever concern the dissent has about some of the sources relied upon by Sears' experts—informal personal accounts, see post, at 3269 – 3271 (opinion of SCALIA, J.)—it does not undermine the well-credentialed expert's assessment,⁴ based on between 12 and 16 hours of interviews, testing, and observations, see 1 Record 32, that Sears suffers from substantial cognitive impairment. Sears performed dismally on several of the forensic tests administered to him to assess his frontal lobe functioning. On the Stroop Word Interference Test, which measures response inhibition, id., at 36–37, 99.6% of those individuals in his cohort (which accounts for age, education, and background) performed better than he did. Ibid. On the Trail–Making B test, which also measures frontal lobe functioning, id., at 37–38, Sears performed at the first (and lowest) percentile. Id., at 38. Based on these results, the expert's first-hand observations, and an extensive review of Sears' personal history, the expert's opinion was unequivocal: There is “clear and compelling evidence” that Sears has “pronounced frontal lobe pathology.”⁵ Id., at 68.

Further, the fact that Sears' brother is a convicted drug dealer and user, and introduced Sears to a life of crime, 6 Record 1683–1686, actually would have been consistent with a mitigation theory portraying Sears as an individual with diminished judgment and reasoning skills, who may have desired to follow in the footsteps of an older brother who had shut him out of his life. Post, at 3270. And the fact that some of such evidence may have been “hearsay” does not necessarily undermine its value—or its admissibility—for penalty phase purposes.⁶ Post, at 3269, n. 3.

Finally, the fact that along with this new mitigation evidence there was also some adverse evidence is unsurprising, post, at 3271, given that counsel's initial mitigation investigation was constitutionally inadequate. Competent counsel should have been able to turn some of the adverse evidence into a positive—perhaps in support of a cognitive deficiency mitigation theory. In particular, evidence of Sears' grandiose self-conception and evidence of his magical thinking

, ibid., were features, in another well-credentialed expert's view,⁷ of a “profound personality disorder.” 1 Record 104. This evidence might not have made Sears any more likable to the jury, but it might well have helped the jury understand Sears, and his horrendous acts—especially in light of his purportedly stable upbringing.

Because they failed to conduct an adequate mitigation investigation, none of this evidence was known to Sears' trial counsel. It emerged only during state postconviction relief.

II

Unsurprisingly, the state postconviction trial court concluded that Sears had demonstrated his counsel's penalty phase investigation was constitutionally deficient. See Strickland, 466 U.S., at 688, 104 S.Ct. 2052

(explaining that first inquiry when evaluating Sixth Amendment ineffectiveness claim is whether counsel's representation “fell below an objective standard of reasonableness”). In its view, the cursory nature of counsel's investigation into mitigation evidence—“limited to one day or less, talking to witnesses selected by [Sears'] mother”—was “on its face ... constitutionally inadequate.” App. to Pet. for Cert. 27B.

What is surprising, however, is the court's analysis regarding whether counsel's facially inadequate mitigation investigation prejudiced Sears. See Strickland, supra, at 694, 104 S.Ct. 2052.

Although the court appears to have stated the proper prejudice standard,⁸ it...