Lezmond Mitchell v. United States , 790 F.3d 881 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEZMOND C. MITCHELL, No. 11-99003
Petitioner-Appellant,
D.C. No.
v. 3:09-cv-08089-MHM
UNITED STATES OF AMERICA,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, Circuit Judge, Presiding*
Argued and Submitted February 20, 2014
Submission Vacated February 27, 2014
Resubmitted April 21, 2015
Pasadena, California
Filed June 19, 2015
Before: Stephen Reinhardt, Barry G. Silverman,
and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Silverman;
Partial Dissent by Judge Reinhardt
*
The Honorable Mary H. Murguia, then a district court judge, was the
original trial judge in 2003 and presided over the 28 U.S.C. § 2255proceedings that concluded in 2010. She was appointed to the United
States Court of Appeals for the Ninth Circuit in 2011.
2 MITCHELL V. UNITED STATES
SUMMARY**
Habeas Corpus/Death Penalty
The panel affirmed the district court’s denial of federal
prisoner Lezmond Mitchell’s 28 U.S.C. § 2255 motion
challenging his convictions under the Major Crimes Act for
multiple offenses committed on the Navajo reservation
including two counts of first-degree murder and multiple
counts of robbery, and his conviction and death sentence
under the Federal Death Penalty Act of 1994 for carjacking
resulting in death.
The § 2255 motion claimed that counsel was ineffective
(1) at the guilt phase of the trial in failing to assert an
intoxication defense, and (2) at the penalty phase for
inadequately investigating, and for choosing not to present
evidence of, Mitchell’s mental health, history of substance
abuse, and troubled upbringing.
The panel agreed with the district court that counsel did
not fall below professional standards in either their
investigation of a possible intoxication defense or their
decision to pursue a different defense strategy of trying to
portray Mitchell’s accomplice as the main malefactor.
With respect to the penalty phase of the case, the panel
also agreed with the district court that Mitchell’s legal team
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MITCHELL V. UNITED STATES 3
made a more-than-adequate investigation of possible
mitigation, including his mental health and social history.
Dissenting in part, Judge Reinhardt would grant relief
with respect to the penalty phase because Mitchell was
deprived of his Sixth Amendment right to effective counsel.
He wrote that counsel’s “good guy” defense was
unreasonable in light of the facts and circumstances of the
crimes Mitchell committed, and also because the minimal
investigation underlying counsel’s choice of strategy was
constitutionally deficient.
COUNSEL
Jonathan Aminoff and Gia Kim (argued), Deputy Federal
Public Defenders, Los Angeles, California for Petitioner-
Appellant.
John S. Leonardo, United States Attorney, Christina
Cabanillas, Appellate Chief, and Vincent Q. Kirby (argued),
Assistant United States Attorney, Phoenix, Arizona for
Respondent-Appellee.
OPINION
SILVERMAN, Circuit Judge:
Defendant Lezmond Mitchell, then 20 years old, plotted
with three others to carjack a vehicle for use in an armed
robbery of a trading post located on the Navajo reservation in
Arizona. On October 28, 2001, Mitchell and his 16-year-old
accomplice, Johnny Orsinger, abducted 63-year-old Alyce
4 MITCHELL V. UNITED STATES
Slim and her nine-year old granddaughter. Slim and the child
were traveling to New Mexico in Slim’s GMC pickup truck.
Somewhere near Sawmill, Arizona, Mitchell and Orsinger
killed Slim by stabbing her 33 times. Her dead body was
pulled into the rear of the truck, where the child was made to
sit beside it. Mitchell then drove the truck into the nearby
mountains.
Thirty or forty miles later, Slim’s body was dragged out
of the truck. Mitchell told the little girl to get out and “lay
down and die.” Mitchell then cut her throat twice. When she
did not die, Mitchell and Orsinger each dropped large rocks
on her head. Twenty-pound rocks bearing the child’s blood
were later found at the scene.
Mitchell and Orsinger left the murder scene, but later
returned to hide evidence. While Mitchell dug a hole in the
ground, Orsinger severed the heads and hands of both victims
in an effort to prevent their identification. The dismembered
parts were buried in the hole; the torsos were pulled into the
woods. Mitchell and Orsinger later burned the victims’
clothing and other personal effects. Mitchell washed the
knives with alcohol to remove any blood.
Three days later, on October 31, 2001, Mitchell and two
accomplices (Jason Kinlicheenie and Jakegory Nakai) drove
to the Red Rock Trading Post in the GMC pickup truck stolen
from Slim. The three men wore masks when they entered the
store. Mitchell carried a 12-gauge shotgun. Nakai had a .22
caliber rifle. One of the gunmen struck the store manager in
the head with his gun. When another employee said that she
did not know the combination to the safe, one of the robbers
said, “If you lie to me or you don’t cooperate with us, we are
going to kill you.” Ultimately, the robbers made off with
MITCHELL V. UNITED STATES 5
$5,530 from the safe and cash registers, and the store
manager’s purse.
The robbers drove the stolen GMC pickup truck back to
Kinlicheenie’s car. Kinlicheenie followed Mitchell in the
truck to an area near Wheatfield, Arizona, where Mitchell set
the truck on fire with kerosene stolen from the trading post.
They then went to Jakegory and Gregory Nakai’s house and
split up the money.
Mitchell was convicted in federal court of eleven counts
in all, including two counts of first-degree murder, carjacking
resulting in death, and multiple counts of robbery. The two
murders were not punishable by death because they were
committed on the Navajo reservation. Federal jurisdiction
over those counts is based on the Major Crimes Act,
18 U.S.C. § 1153, and the Navajo Nation did not “opt in” to
the death penalty under the Federal Death Penalty Act of
1994, 18 U.S.C. § 3591. However, federal jurisdiction over
carjacking resulting in death does not derive from the Major
Crimes Act; the federal nexus is interstate commerce. It does
not matter that the crime occurred in Indian country, and
therefore, the opt-in provision of the Federal Death Penalty
Act does not apply. In other words, carjacking resulting in
death carries the death penalty regardless of where it was
committed. See William C. Canby, Jr., American Indian Law
in a Nutshell 185–87 (6th ed. 2015).
Mitchell was sentenced to life imprisonment for the two
murder counts, long consecutive prison sentences for the
robbery and related counts, and death for carjacking resulting
in death. His convictions and sentences were upheld on
direct appeal. United States v. Mitchell, 502 F.3d 931 (9th
Cir. 2007). The United States Supreme Court denied a
6 MITCHELL V. UNITED STATES
petition for a writ of certiorari. Mitchell v. United States,
553 U.S. 1094 (2008).
Which brings us to the subject of this appeal. After
exhausting his direct appeal, Mitchell brought a motion under
28 U.S.C. § 2255 alleging that his team of defense lawyers
rendered ineffective assistance of counsel. The team was
made up of two veteran deputy federal public defenders and
a private lawyer highly experienced in capital cases appointed
as “learned counsel.” The § 2255 motion raised various
issues, but it boiled down to these claims: (1) Counsel was
ineffective in failing to assert an intoxication defense at the
guilt phase of the trial; and (2) Counsel was ineffective at the
penalty phase for inadequately investigating, and for choosing
not to present evidence of, Mitchell’s mental health, history
of substance abuse, and troubled upbringing. The trial court
denied the motion in a lengthy and thorough written order.
We agree with the district court that counsel did not fall
below professional standards in either their investigation of
a possible intoxication defense or their decision to pursue a
different defense strategy. They did indeed investigate
whether Mitchell was intoxicated at the time of the offenses.
Mitchell adamantly denied to them that he was. Even so,
they looked for evidence to contradict their client, such as
liquor bottles left at the crime scene, but they couldn’t find
any. The only other living witness to the murders of Slim and
her granddaughter was Johnny Orsinger, and he wasn’t
talking; he was under indictment himself and invoked his
privilege against self-incrimination. Even assuming for the
sake of argument that there was some evidence of alcohol
involvement, the planning and premeditation of the vehicle
theft as preparation for the pre-planned trading post robbery
are inconsistent with a claim that Mitchell was too drunk to
MITCHELL V. UNITED STATES 7
know what he was doing. And after Mitchell was
apprehended, he led authorities to the desolate crime scene,
further evidence that he was not so intoxicated that he could
not accurately recall events or appreciate where he was and
what he was doing.
We agree with the district court that counsel conducted an
adequate investigation and then made a reasonable strategic
decision that it would be self-defeating to try to sell a jury on
an intoxication defense on these facts, and that, instead, they
would be better off trying to portray Orsinger as the main
malefactor. Strategic decisions such as these are entitled to
deference and do not support a claim of ineffective assistance.
With respect to the penalty phase of the case, we also
agree with the district court that Mitchell’s legal team made
a more-than-adequate investigation of possible mitigation,
including his mental health and social history. Early in the
case, defense counsel had Mitchell examined by a
psychologist, Susan Parrish, Ph.D. Dr. Parrish diagnosed
Mitchell with antisocial personality disorder and cautioned
counsel against calling her as a witness. Mitchell’s lawyers
also had him examined by a team of doctors led by
psychiatrist Barry Morenz, M.D., at the University of Arizona
medical school Mitchell also was examined by
neuropsychologist Anne Henning, Ph.D., and by neurologist
Ronnie Bergen, M.D. Mitchell underwent brain imaging read
by James Guay, M.D. and an EEG read by Colin Bamford,
M.D. He also had lab work done. Dr. Morenz then produced
a 19-page, single-spaced report, in which he diagnosed
Mitchell with, among other things, depressive disorder,
cognitive disorder, polysubstance abuse, history of head
injuries, and antisocial personality disorder. He also noted a
“mild deficit” in executive functioning likely due to
8 MITCHELL V. UNITED STATES
emotional factors, not brain trauma. No further testing or
consultation was suggested.
Mitchell’s lawyers also hired an experienced “mitigation
specialist,” Vera Ockenfels, who produced a 42-page, single-
spaced “social history” of Mitchell’s life. The report is
thorough in the extreme, containing sections with titles like
“Conception, Pregnancy and Birth,” and recounts not only
Mitchell’s life story and social history, but that of his parents
and grandparents as well.
Only after reviewing all of this data, making numerous
trips to the reservation, conducting many interviews
themselves, and visiting with Mitchell himself, did defense
counsel choose their mitigation strategy: Forego presenting
evidence of Mitchell’s drug use, mental health, and physical
abuse and instead make the case that Mitchell had redeeming
qualities that made his life worth saving, notwithstanding a
rough start in life. Counsel presented evidence that Mitchell
was unloved and rejected by his mother, struggled with his
mixed Navajo and Anglo heritage, and felt caught between
two different cultures. Despite these obstacles, Mitchell
showed highly positive qualities. He was a good student, a
speaker at his high school graduation, and a good athlete,
liked by his teachers, and loved by others. In all, the defense
presented nine witnesses in the penalty phase of the trial.
The defense also presented evidence that Mitchell had
never before been convicted of a crime, that this offense was
an aberrant act for him, and that Orsinger was the instigator
and actual killer. Defense counsel also showed that the death
penalty for Mitchell would create a terrible sentencing
disparity. Besides this crime, Orsinger and Gregory Nakai
had killed two other individuals during an earlier carjacking.
MITCHELL V. UNITED STATES 9
Orsinger had pistol whipped the victims and shot one victim
in the head. Nakai had shot the other victim five times. Yet,
neither Nakai nor Orsinger, who was a juvenile, would face
the death penalty.
In addition, counsel presented evidence that the death
penalty offends Navajo values, and the Navajo Nation did not
want the United States Attorney to seek the death penalty in
this case.
Mitchell’s lawyers had to walk a very careful line to avoid
opening the door to highly damaging evidence contained in
the medical report, such as Mitchell’s diagnosis as a
sociopath, his history of swinging dogs and cats by their tails
and then throwing them off of bridges just for fun, and his
having told Dr. Morenz that he and his accomplice had to kill
the little girl to avoid being caught.
We agree with the district court that Mitchell’s defense
team conducted a professional-caliber investigation and then,
facing unenviable choices, made a reasonable strategic
decision to defend the penalty phase of the trial the way it
did. Strategic decisions such as this do not support a claim of
ineffective assistance of counsel. Strickland v. Washington,
466 U.S. 668, 690 (1984); Mickey v. Ayers, 606 F.3d 1223,
1238–39 (9th Cir. 2010).
We affirm.
I. The Record.
The facts of the crimes are summarized above and set
forth in greater detail in the opinion in the direct appeal,
United States v. Mitchell, supra.10 MITCHELL V. UNITED STATES
The facts bearing on Mitchell’s present claims of
ineffective assistance of counsel were submitted to the district
court in numerous declarations, other documents, and in the
lengthy depositions of Mitchell’s three trial lawyers taken by
Mitchell’s habeas counsel. The material facts – that is, what
Mitchell’s lawyers did, what they didn’t do, and why – are not
disputed. What is disputed is whether counsels’ investigation
and strategic decisions were reasonable as a matter of law. In
the analysis that follows, we examine whether counsels’
investigation and strategy fell below an objective standard of
reasonableness. Strickland, 466 U.S. at 687–88. Because the
material facts are not in dispute – they either entitle Mitchell
to relief or they don’t – the district court did not abuse its
discretion in declining to hold an evidentiary hearing. United
States v. Howard, 381 F.3d 873, 877–79 (9th Cir. 2004).
II. Defense counsel adequately investigated the possibility of
an intoxication defense and reasonably decided against
asserting it.
Mitchell argues that his three lawyers – Deputy Federal
Public Defenders Jeffrey Williams and Gregory Bartolomei,
and private lawyer John Sears – failed to adequately
investigate the possibility of an intoxication defense for use
in the guilt-phase of the trial. The facts show otherwise.
Sears, who had practiced for 28 years and was
experienced in criminal defense, was appointed as learned
counsel1 and took the lead on the guilt phase. Williams had
15 years of criminal defense experience, had already tried two
1
18 U.S.C. § 3005 requires the appointment of at least two defense
counsel in capital cases, including one who is “learned in the law
applicable to capital cases.”
MITCHELL V. UNITED STATES 11
capital cases and had worked on several other capital cases
when he was appointed in this case. Bartolomei had
practiced for 23 years, mostly as a criminal defense attorney,
and had previously attended the Death Penalty College at the
Santa Clara University law school.2 The Federal Public
Defender’s Office in Arizona is particularly well-experienced
in defending Indian reservation cases.
Defense counsel were well aware of Mitchell’s history of
substance abuse. They knew about it from various sources,
including the report of Vera Ockenfels, the lawyer whom they
hired who specializes in developing mitigating evidence.
They confronted Mitchell with his statements to FBI agents
about his substance abuse, but Mitchell “adamantly” denied
that he was under the influence of any substance at the time
of the crimes. Unwilling to take Mitchell’s word for it, his
lawyers dutifully pored over photographs of the crime scene
and visited the scene of the crimes themselves looking for any
evidence of drinking or drugs. Liquor bottles left behind?
Drug paraphernalia? They found nothing.
Mitchell’s lawyers also knew that Johnny Orsinger, the
only other living person present when the crimes were
committed, used drugs and alcohol. Mitchell’s lawyers
sought to interview him, but Orsinger’s lawyer wouldn’t
allow it. When Mitchell’s lawyers subsequently subpoenaed
Orsinger, he repeatedly asserted his Fifth Amendment
privilege and refused to answer questions.
2
Santa Clara Law’s Death Penalty College trains defense attorneys,
along with their mitigation specialists, to represent defendants in death
penalty cases. See http://law.scu.edu/dpc.
12 MITCHELL V. UNITED STATES
In short, counsel investigated the possibility of asserting
an intoxication defense, but could find no admissible
evidence that Mitchell was intoxicated at the time of the
carjacking and murders.3 To the contrary, Mitchell himself
denied being intoxicated, and the manner in which the crimes
were committed was inconsistent with a supposed inability to
form intent due to intoxication, even if he had been drinking:
the carjacking was premeditated and committed in
preparation for the trading post robbery; the grandmother and
little girl were killed and then dismembered to get rid of
witnesses and dispose of evidence; and, with impeccable
recall, Mitchell gave the FBI a highly detailed account of the
crime and his complicity in it. Mitchell’s ability to lead
investigators back to the desolate scene of the crime is further
indication that Mitchell was not unaware of where he was or
what he was doing when the crimes were committed.
Mitchell’s lawyers did not ignore the possibility of an
intoxication defense. Just the opposite. They investigated it,
they discussed it with Mitchell, they attempted to interview
Orsinger, they looked for extrinsic evidence, they debated it
among themselves, and only then, given the lack of evidence
of intoxication and the strong circumstantial evidence to the
contrary, did they decide that they would be unlikely to
convince a jury to accept voluntary intoxication as a defense
to these premeditated crimes. Lawyers who make
professional decisions of this type, after a reasonable
investigation such as occurred in this case, are “strongly
presumed” to have rendered adequate assistance. Cullen v.
3
Defense counsel tried, but failed, to get into evidence Mitchell’s
statement to the FBI that he had been drinking the day of the murders.
Counsel then requested an intoxication instruction to preserve the record,
even though they knew the request would be denied for lack of evidence.
There is no reason to fault counsel for this.
MITCHELL V. UNITED STATES 13
Pinholster, 131 S. Ct. 1388, 1403 (2011) (internal quotation
marks omitted); Edwards v. Ayers, 542 F.3d 759, 772–73 (9th
Cir. 2008) (counsel acts reasonably by not asserting a defense
that is not supported by sufficient admissible evidence). That
is the situation here. The district court correctly denied
Mitchell’s § 2255 motion with regard to counsels’ decision to
forego an intoxication defense at the guilt phase of the trial.
III. Counsel conducted a thorough investigation of
mitigating evidence – social, medical, and psychiatric
– only after which did they make a reasonable
strategic decision about what evidence to present and
what to forego.
Given the strong evidence of Mitchell’s guilt, including
his well-corroborated confession, and the lack of any realistic
defense, Mitchell’s lawyers knew that the rubber-would-
meet-the-road in the penalty phase of the trial, so they began
to prepare for that part of the case immediately.
The defense team consistently met throughout the case to
discuss the possible theories of mitigation. Deputy Federal
Public Defender Greg Bartolomei was principally in charge
of this aspect of the case. Early on, Bartolomei spoke to
Mitchell in detail about the case, his childhood, interests,
parents, grandparents, medical history, drug history, and
schooling. The defense also hired Vera Ockenfels, a well-
known and experienced “mitigation specialist,” to marshal
mitigating evidence. Ockenfels gathered all available records
and interviewed Mitchell’s mother, grandparents, uncle, other
extended family members, friends, acquaintances, football
coach, teachers, and other school employees. She located and
14 MITCHELL V. UNITED STATES
attempted to interview Mitchell’s father.4 Bartolomei
traveled to the Navajo reservation with Ockenfels to
interview Mitchell’s mother, grandparents, uncle, friends,
football coach and other employees at Mitchell’s school.
Deputy Federal Public Defender Jeff Williams separately
interviewed Mitchell’s mother, Sherry. Sherry mostly talked
about herself, and she walked out of the interview with
Williams. She had previously told the FBI that Mitchell
belonged in prison.
Six months before the penalty trial, Ockenfels turned in
her 42-page, single-spaced “social history report,” consisting
of a complete, thoroughly documented biography of Mitchell,
his mother, and his maternal grandparents. The report noted
Mitchell’s struggle with his mixed race, large size, and lack
of fluency in the Navajo language and culture; verbal and
physical abuse of Mitchell during his childhood; and
Mitchell’s extensive history of alcohol and drug use. The
report also documented Mitchell’s own violent history: he
joined a gang in third grade, formed his own gang by eighth
grade, was suspended and expelled from school for fighting,
and abused dogs and cats for entertainment. Ockenfels also
obtained psychological records from Mitchell’s school, and
interviewed Dr. Edward Fields, a psychologist for the Chinle
School District, who was Mitchell’s therapist while he was in
high school. The defense team personally met with
Ockenfels and reviewed her report.
Defense counsel also hired several mental health
professionals. Counsel initially hired Susan Parrish, Ph.D.,
a psychologist, who diagnosed Mitchell as a sociopath and
4
Mitchell never knew his father, and his father died before the defense
team was able to locate and interview him.
MITCHELL V. UNITED STATES 15
warned counsel against calling her to testify. Following up
on Ockenfels’s hunch that Mitchell may have blacked out or
had a psychotic episode at the time of the crimes, defense
counsel hired Barry Morenz, M.D., and his team of experts at
the University of Arizona medical school to look for medical
or psychiatric evidence that might be helpful. Defense
counsel provided extensive background information to Dr.
Morenz, including all of the prosecution’s evidence in the
case. In addition, Dr. Morenz conducted and documented in-
depth background interviews of his own with Mitchell,
defense investigator Karl Brandenberger, and mitigation
specialist Ockenfels.
With Dr. Morenz at the helm, Mitchell was examined and
evaluated by a psychiatrist, a neuropsychologist, and a
neurologist at the University of Arizona and underwent
numerous tests and studies. The neurological exams, EEG,
MRI, and laboratory results were normal. Testing established
that Mitchell had average intelligence. When all the data was
in, Dr. Morenz diagnosed Mitchell with: (1) depressive
disorder not otherwise specified based on Mitchell’s
statements that he felt despondent and hopeless; (2)
polysubstance abuse based on abuse of alcohol, marijuana,
cocaine, ecstasy, and other drugs on a regular basis for a
number of years; (3) a cognitive disorder not otherwise
specified based on executive functioning deficits that were
mild and of uncertain etiology and clinical significance; and
(4) an antisocial personality disorder based on Mitchell’s
history of childhood aggression, deceitfulness, frequent rule
violation, cruelty to animals that would have warranted a
conduct disorder diagnosis as an adolescent, a continued
disregard for the rights of others, and a failure to show
remorse for his behavior.
16 MITCHELL V. UNITED STATES
As already noted, neuropsychological testing by Dr.
Morenz’s team revealed “some mild deficits in executive
functioning, impulsiveness and poor planning,” that “were
more likely related to emotional factors than traumatic brain
injury.” Mitchell now faults his lawyers for not pursuing that
finding further, but it is significant to note that Dr. Morenz
did not recommend further testing, if indeed there is any
further testing that could have been done, relating to these
“mild deficits” of likely “emotional” origin.
Defense counsel reviewed Dr. Morenz’s comprehensive
report, discussed it with him, and ultimately decided not to
present mental health evidence for fear that it would open the
door to even more damaging evidence and do more harm than
good. Defense counsel knew that they would have to turn the
report over to the prosecution if Dr. Morenz testified. They
concluded that the report would open the door to “ugly”
damaging facts that would have a “negative and adverse”
effect on the jury. Specifically, the report documented
Mitchell’s diagnosis of antisocial personality disorder, history
of violence, cruelty to animals, gang involvement, that his
gang sold drugs to children, and that Mitchell had been
involved in the shooting of an innocent girl during a dispute
with a rival gang over marijuana. Worse, Mitchell told Dr.
Morenz detailed facts regarding the crime that he had not
already admitted to the police or FBI, including the fact that
he decided to kill the child to prevent her from identifying
him. Mitchell also told Dr. Morenz of his desire to kill the
person who had ratted out their group to the police.
Defense counsel concluded that introducing evidence of
Mitchell’s mental health was fraught with danger, given the
door that would be opened to extremely damaging evidence,
and could negate the positive things that they had to say about
MITCHELL V. UNITED STATES 17
him. Counsel also decided that it would be wise to stay away
from Mitchell’s history of alcohol and drug abuse. In their
professional opinion, jurors would be turned off by such
evidence and view it as a poor excuse for extremely
horrendous crimes. And, again, such evidence would
contradict the more positive picture they wanted to paint.
In the § 2255 proceedings, Mitchell’s new lawyers
produced a new declaration from Dr. Morenz, dated in 2009.
In this declaration, Dr. Morenz states that he could have
testified that Mitchell “might” have been under the influence
of drugs or alcohol at the time of the crime and that his
perception of reality “might” have been altered. This new
declaration changes nothing. Besides being equivocal, the
problem remained that if Dr. Morenz had testified to such a
possibility, the door would have been opened to a whole
panoply of contrary evidence of which Dr. Morenz was
aware, such as Mitchell telling Dr. Morenz why he and
Orsinger killed the little girl. In his report, Dr. Morenz
quoted Mitchell as telling him, “I’m running this equation in
my head that 9 times out of 10 if we let the little girl go the
cops will be after us.”
In his deposition, defense lawyer John Sears testified that
the defense team had used juror questionnaires to determine
prospective jurors’ attitudes towards potential issues,
including their reactions to Native American crimes,
vulnerable victims, and whether the jurors were open to
“excuses,” such as mental problems or substance abuse. The
defense used a series of hypothetical questions to assess
potential jurors’ reactions and then factored those reactions
into Mitchell’s defense. The questionnaire responses by
prospective jurors confirmed counsels’ belief that the jury
18 MITCHELL V. UNITED STATES
would view both mental health and substance abuse
mitigation defenses in a negative way.
Defense counsel made a reasonable professional
judgment, after a careful investigation, that the introduction
of mental health and drug abuse evidence would be more
damaging than helpful. We do not second-guess strategic
decisions such as this. Mickey, 606 F.3d at 1238–39.
So, if no mental health or substance abuse mitigation,
then what?
Bartolomei, Williams, and Sears decided that the best way
to save Mitchell from the death penalty was a mitigation
strategy consisting of three main themes: First, Mitchell’s life
should be spared because he is not a worthless human being
– that is, he is a person with significant redeeming qualities,
who has overcome difficult challenges in his life, facts that
weigh against simply discarding him like so much trash.
Defense counsel presented the testimony of Dr. Robert
Roessel, the executive director of Mitchell’s high school,
who testified that Mitchell had been an excellent student,
respectful, an outstanding athlete, a member of the student
council, and a speaker at graduation. Dr. Roessel testified
that Mitchell was kind, and did well in school despite a
difficult upbringing, a disinterested mother who never loved
him, a school system that failed to nurture him, and confusion
over his mixed Navajo and Anglo heritage. Because
Mitchell’s grandparents were also educators at the school, Dr.
Roessel knew Mitchell’s family. Dr. Roessel testified that
Mitchell had his problems, but had positive qualities, too, and
had the potential to teach others in prison. Dr. Roessel asked
the jury to spare Mitchell’s life.
MITCHELL V. UNITED STATES 19
The defense also presented the testimony of Ruth Roessel,
Dr. Roessel’s wife and a school teacher. Mrs. Roessel
testified that she met Mitchell when he moved in with his
grandfather in Round Rock and knew Mitchell at school.
Mrs. Roessel also knew Mitchell’s family. She testified that
Mitchell was raised in a “cold home,” but that he was always
respectful to her and called her “shima,” which means “my
mother.”
Mitchell’s uncle, Ausca5 Kee Charles Mitchell, testified
that he worked at Mitchell’s schools. Mitchell spent a lot of
time with Uncle Ausca and his family, and was always
respectful. Uncle Ausca and his family attended Mitchell’s
high school graduation ceremony. The defense introduced
into evidence pictures of Mitchell with family on graduation
day, Christmas, and other family gatherings. Uncle Ausca
testified that Mitchell was a fast learner who had computer
and vocational skills. He was a good kid until he met Johnny
Orsinger. Although Uncle Ausca did not know Orsinger, he
knew that Orsinger was dealing drugs at the school dorms.
The teachers thought highly of Mitchell, but were “scared to
death of Orsinger.”
Marty William Conrad, the athletic director, social studies
teacher and head football coach at Mitchell’s high school,
testified that Mitchell was a good football player, a leader on
the team, interacted well with the players, and was well-
behaved. Mr. Conrad testified that Mitchell was good enough
to play college football, and he thought Mitchell was going to
community college to play football. The defense introduced
into evidence a picture of Mitchell with the football team.
5
In the record, the name is also spelled Auska.
20 MITCHELL V. UNITED STATES
John F. Fontes, Jr., the assistant principal at Mitchell’s
high school, testified that he saw Mitchell daily at school.
Mitchell was an excellent student, a good football player, and
involved with student government during his senior year.
Mitchell was never physically violent. The only disciplinary
incident was a brief suspension for possessing a personal
amount of marijuana. Mr. Fontes testified that Mitchell knew
right from wrong, but tended to withdraw or not respond if he
was fearful. Although Mr. Fontes had met Mitchell’s uncle
and grandfather, he had never met Mitchell’s mother Sherry.
The one time he called Sherry, she called his supervisor and
advised the school not to contact her because she wanted
nothing to do with Mitchell. Mr. Fontes testified that
Mitchell was smart and had the potential to lead others in a
positive way in a structured environment. He believed that
Mitchell’s life should be spared.
Mitchell’s friend, Lorenzo Reed, Jr., testified that he had
known Mitchell since third grade, and that they had attended
high school together. Mitchell’s mother had abandoned him,
and it was painful for Mitchell. Mitchell moved in with Mr.
Reed’s family after he turned 18. Mitchell became part of the
family, was respectful, and helped with the chores. Mitchell
also was respectful while living with Mr. Reed’s uncle in
Phoenix. Mitchell briefly moved to California, but came
back for Mr. Reed’s high school graduation. Mr. Reed also
asked the jury to spare Mitchell’s life.
Sonja Hasley, Mitchell’s high school English teacher,
testified that Mitchell was an excellent student who helped
her and other students in class. Mitchell was gentle, quiet,
and respectful. When confronted with a violent situation,
Mitchell wouldn’t participate either verbally or physically.
Mitchell’s mother, Sherry, refused to come to the school, and
MITCHELL V. UNITED STATES 21
his grandparents never came to the school to discuss
Mitchell’s progress, either. Ms. Hasley testified that
Mitchell’s family acted contrary to the Navajo culture, in
which mothers and grandmothers are very important. Ms.
Hasley stated that Mitchell had the potential to be a good
teacher in prison.
Tammy Sebahe, a member of Mr. Reed’s family, testified
that Mitchell lived with them, became part of their family,
and still remained a part of their family. She had been
visiting Mitchell for the previous year at jail, where they
spoke over a phone with a glass wall separating them.
The defense also played the videotaped testimony of
Mitchell’s grandmother, Bobbi. Bobbi mostly talked about
herself, a point that the defense would mention in closing
argument as illustrative of the dysfunction in the family.
In closing argument, Sears argued that these facts showed
that Mitchell had redeeming qualities despite his lack of
family support, responded well to structure, and if sentenced
to life without parole, he would adapt to prison and could
have a positive impact on other inmates.
The second theme of the penalty phase strategy was that
Johnny Orsinger was the mastermind behind these crimes,
and that Mitchell was a follower. The defense introduced
evidence that Orsinger and Gregory Nakai were not only the
brains behind these crimes, but had committed a similar
carjacking and multiple murder two months earlier. In fact,
Orsinger had bragged that he had murdered the victims in this
case — and yet, Orsinger and Nakai would be spared the
death penalty. Orsinger was immune because he was 16, but
the FBI agent could not explain why Nakai, who was the
22 MITCHELL V. UNITED STATES
same age as Mitchell and had also committed murder during
a carjacking, had not been sentenced to death. Mitchell’s
lawyers hammered home the point that it would create an
intolerable and irrational disparity for the two main culprits
to get life sentences, while Mitchell, the follower, was
sentenced to death.
The third theme was that the Navajo Nation opposes the
death penalty, and did not want Mitchell sentenced to death.
Mitchell’s defense team even put before the jury a letter from
the Navajo Nation to the United States Attorney – the
prosecuting agency in this very case – stating its opposition
to capital punishment in general, and in this case in particular.
The strategy chosen by Bartolomei, Williams, and Sears
did not come to them in a dream, nor was it the result of a
coin flip. They settled on their strategy only after
commissioning an exhaustive social history of Mitchell and
his family, having Mitchell studied stem-to-stern by a team of
doctors in a variety of specialties at the University of Arizona
medical school, conducting personal interviews with potential
witnesses, making numerous trips to the Navajo reservation,
and spending countless hours with Mitchell himself.
Counsel, who had years of experience defending violent
crimes committed on Indian reservations, also contacted other
lawyers who specialized in death penalty defense and sought
their advice. Counsel affirmatively considered the pros and
cons of other approaches, and then reasonably chose the
strategy that they thought had the best chance of success.
Such a decision does not support a claim of ineffective
assistance of counsel. Elmore v. Sinclair, 781 F.3d 1160,
1170–72 (9th Cir. 2015).
MITCHELL V. UNITED STATES 23
Apparently recognizing that trial counsel’s strategic and
tactical decisions are entitled to great deference, Mitchell
argues that his lawyers’ investigation was deficient, thereby
tainting their strategy and tactics. For example, Mitchell
contends that when Mitchell’s lawyers learned that Dr.
Morenz had diagnosed Mitchell with antisocial personality
disorder (just as psychologist Dr. Parrish had) counsel should
have had Mitchell examined again by yet another doctor in
search of a less damning diagnosis. We agree with the
district court that defense counsel did not act below
professional standards in relying on the thorough and
authoritative report of the highly qualified experts they hired,
particularly when Drs. Parrish and Morenz independently
agreed on the same primary diagnosis after extensive testing.
Crittenden v. Ayers, 624 F.3d 943, 965–66 (9th Cir. 2010).
Although Mitchell claims that the investigation was
inadequate, he has come forward with almost no new
evidence not known to defense counsel and fully considered
as possible mitigation. Mitchell’s drug abuse and physical
abuse were documented in detail in the Ockenfels and Dr.
Morenz reports well before the guilt and penalty trials.
Contrary to Mitchell’s claim, defense counsel knew in 2003
that Mitchell and his friends had been partying and doing
drugs in the months before the crimes. In fact, Dr. Morenz
diagnosed polysubstance abuse based on Mitchell’s extensive
drug use history. The evidence of drug use and physical
abuse was known to the defense team and considered by the
team when it decided not to present intoxication or abuse
mitigation evidence.
Mitchell points out that neither defense counsel’s
investigation, nor that of their mitigation specialist, Vera
Ockenfels, uncovered the fact that Mitchell’s grandfather
24 MITCHELL V. UNITED STATES
(with whom Mitchell had lived for a time) had molested two
girls in Kansas sometime in the 1950s or *60s, about 20 years
before Mitchell was born. Mitchell himself was never
molested by the grandfather and Mitchell never met the girls.
This bit of ancient family history was never disclosed to
defense counsel, their investigator Karl Brandenburger, or
Ockenfels, despite their numerous interviews with family
members. The grandfather’s behavior in the *50s or *60s
toward people other than Mitchell, whom Mitchell does not
even know, before he was even born, is of dubious relevance
when it comes to mitigation. In any event, Mitchell was
entitled to a reasonable investigation, not a perfect one. See
Yarborough v. Gentry, 540 U.S. 1, 8 (2003).
In 2009, habeas counsel managed to find a doctor, Pablo
Stewart. M.D., who would give them a declaration stating
that in 2001 Mitchell suffered from post traumatic stress
disorder and substance-induced psychotic disorder. Dr.
Stewart’s declaration says that he could testify that Mitchell’s
intoxication and mental illness “synergized with each other
resulting in the alteration of Mr. Mitchell’s cognitive and
behavioral function, which severely impaired his ability to
premeditate or intend to commit murder.” (Never mind that
Mitchell stated that he and Orsinger killed and dismembered
the grandmother and little girl to get rid of the witnesses to
the theft of the vehicle they stole for use in the trading post
robbery they planned to commit.) At most, Dr. Stewart’s new
diagnosis of Mitchell’s mental state, eight years after-the-fact,
is a “difference in medical opinion, not a failure to
investigate.” Crittenden, 624 F.3d at 965.
Finally, Mitchell faults defense counsel for not calling his
mother, Sherry, to testify. But, Bartolomei testified that
Sherry refused to cooperate and only wanted to talk about
MITCHELL V. UNITED STATES 25
how Mitchell’s crimes impacted her. She walked out on her
interview with Williams, and had told the FBI that Mitchell
belonged in prison. Counsel reasonably concluded that
Sherry was a “loose cannon” who was better kept away from
the witness stand.
We agree with the district court that Mitchell’s lawyers
made an adequate investigation and then, with full knowledge
of all of the relevant facts, made reasonable strategic
decisions to present what they did and to stay away from
things that they thought would do more harm than good.
Elmore, 781 F.3d at 1170–72. The possibility that some of
the evidence rejected by defense counsel “could have assisted
[Mitchell’s] case,” is “little more than a challenge to his
defense attorney’s trial strategy with the benefit of hindsight.”
Id. at 1171. Like the defense team in Elmore, which
reasonably chose a “remorse strategy” over a mental health
strategy, Mitchell’s defense team made a reasonable strategic
decision to pursue what it believed to be the stronger life-
worth-saving defense, along with evidence of sentencing
disparity and evidence that the Navajo Nation wanted
Mitchell’s life spared. They reasonably chose not to present
evidence that “would detract from, or destroy,” the chosen
strategy. Id. Considering the unusual brutality of these
crimes – committed not in passion but in furtherance of a
planned armed robbery – and that Mitchell himself refused to
attend the penalty phase of the trial, it is a remarkable tribute
to Mitchell’s lawyers that they were able to get the jury to
find several mitigating factors.6 Even assuming for the sake
6
At least one juror found every factor presented by the defense to be
mitigating for both murders. Twelve jurors found that: (1) Mitchell did
not have a significant prior criminal record; (2) another person who was
equally culpable in the crime would not be punished with death; and (3)
Mitchell would be sentenced to life in prison without the possibility of
26 MITCHELL V. UNITED STATES
of argument that some other lawyer might have preferred a
different strategy, there is no showing that Mitchell’s
lawyers’ strategy was unreasonable. Bell v. Cone, 535 U.S.
685, 701–02 (2002). Because Mitchell did not rebut the
presumption that counsel rendered effective assistance, the
district court correctly denied Mitchell’s § 2255 motion with
respect to the penalty phase of the trial.7
IV. Conclusion
The judgment of the district court is AFFIRMED.
release if not sentenced to death. Two jurors found that Mitchell
responded well to structure and would adapt to life in prison. One juror
found that Mitchell’s capacity to appreciate the wrongfulness of his
conduct was so impaired as to constitute a defense to the charge. Six
jurors found that Mitchell’s childhood, background record, character or
other circumstances of the offense mitigated against the death sentence.
Finally, seven jurors found that the letter from the Navajo Nation opposing
the death penalty was mitigating.
7
We decline to grant a certificate of appealability for the uncertified
issues raised in Mitchell’s brief.
MITCHELL V. UNITED STATES 27
REINHARDT, Circuit Judge, dissenting in part:
I would grant Mitchell’s petition for habeas relief with
respect to the penalty phase of his trial because he was
deprived of his Sixth Amendment right to effective counsel.
Counsel’s “good guy” defense was unreasonable in light of
the facts and circumstances of the crimes Mitchell committed,
and also because the minimal investigation underlying
counsel’s choice of strategy was constitutionally deficient.
Before delving into the myriad ways in which counsel
performed deficiently, however, I would note that this is a
highly unusual death-penalty case in several respects, all of
which exacerbate the impropriety of sending Mitchell to his
death in violation of his constitutional rights to a fair trial, but
none of which is more disturbing than the failure to give the
jurors the opportunity to understand what made him the
person he became before they voted to have him executed.
I.
Federal executions are quite rare and are normally
reserved for the most heinous of crimes that are of national
significance. There have been only three executions since the
federal death penalty was reintroduced in 1988—one being in
the Oklahoma City bombing case in which 168 people died
and more than 600 were injured, and another being a drug
kingpin found responsible for at least eight murders. Most
recently, the death penalty was authorized for a perpetrator of
the Boston Marathon bombing. However gruesome the crime
in this case, Mitchell, who was twenty years old at the time
and had no prior criminal record, does not fit the usual profile
of those deemed deserving of execution by the federal
government—a penalty typically enforced only in the case of
mass murderers and drug overlords who order numerous
28 MITCHELL V. UNITED STATES
killings. Nor is this a case of national interest or significance.
The penalty is possible only by virtue of the fact that Mitchell
and a fellow Navajo, aged sixteen, stole a car in connection
with the murders they committed. The murders by themselves
did not subject Mitchell to the death penalty because, as
explained below, the Navajo Nation has decided that the
death penalty should not apply to intra-Indian crimes
committed on its reservation. As a result, in the absence of
the carjacking, Mitchell would not have been eligible for the
death penalty.
Equally important, none of the people closely connected
to the case wanted Mitchell to be subjected to the death
penalty: not the victims’ family, not the Navajo Nation—of
which the victims and perpetrators were all members and on
whose land the crime occurred—and not the United States
Attorney whose job it was to prosecute Mitchell. So how did
Mitchell nonetheless become one of a relatively small
number of inmates on federal death row over the protestations
of everyone with a personal stake in the case? A bit of
background is necessary to answer that question.
The Navajo Nation is opposed to the death penalty, both
as a general matter and in this case in particular, but it has
only limited power over crimes committed on Navajo land.1
In 1994, however, Congress enacted “a small but important
development toward tribal self-determination” with respect to
prosecutions by the federal government of crimes committed
on tribal lands: the so-called tribal option, which allowed
Native American tribes to decide whether the death penalty
applies to most crimes committed by an Indian against
another Indian on tribal lands (also known as “Indian
1
See 18 U.S.C. § 1302(a)(7).
MITCHELL V. UNITED STATES 29
country”).2 In pressing for the tribal option, representatives of
the Navajo Nation explained to Congress:
It is incumbent upon the federal government
to allow Indian tribes the choice of whether
the death penalty should be extended to our
territory. . . . [T]he death penalty is counter to
the cultural beliefs and traditions of the
Navajo people who value life and place great
emphasis on the restoration of harmony
through restitution and individual attention.
The vast majority of major crimes committed
on the Navajo Nation and within other Indian
reservations are precipitated by the abuse of
alcohol. The death penalty will not address
the root of the problem; rather rehabilitation
efforts will be more effective.3
As Kevin K. Washburn, the current Assistant Secretary for
Indian Affairs for the U.S. Department of the Interior, a
former law professor and United States Attorney, wrote,
adoption of the tribal option reflected a “modest step[]” in
2
See 18 U.S.C. § 3598.
3
Crime Prevention and Criminal Justice Reform Act of 1994: Hearings
on H.R. 3315 before the Subcommittee on Crime and Criminal Justice of
House Judiciary Committee, 103 Cong., 2d Sess., Feb. 22, 1994
(statement of Helen Elaine Avalos, Assistant Att’y Gen., Navajo Dep’t of
Justice, on behalf of Peterson Zah, President of the Navajo Nation)
(emphasis added).
30 MITCHELL V. UNITED STATES
favor of a policy that “criminal justice in Indian country must
be decolonized.”4
Having been empowered by the tribal option to determine
whether the death penalty should apply to most federal crimes
committed against Navajo people on Navajo land, the Navajo
Nation decided that it should not.5 For this reason, Mitchell
was not eligible for the death penalty with respect to any
crimes for which he was prosecuted under the Major Crimes
Act—including several counts of first-degree murder,
kidnapping, and robbery. Maj. Op. at 5. However,
notwithstanding the fact that his crime was committed “by
one Indian against other Indians in Indian country,” the death
penalty applied to the federal crime of carjacking resulting in
death.6 The theory underlying this anomalous result is that
carjacking is a crime of general, nationwide applicability—
rather than a Major Crimes Act offense—and the tribal option
is not applicable to such crimes. See Mitchell I, 502 F.3d at
4
Kevin K. Washburn, Federal Criminal Law and Tribal
Self-Determination, 84 N.C. L. Rev. 779, 830, 854 (2006).
5
Indeed, only one Native American tribe has exercised the tribal option
to permit the death penalty. See Washburn, supra note 4, at 831.
6
United States v. Mitchell (“Mitchell I”), 502 F.3d 931, 946 (9th Cir.
2007). The Anti Car Theft Act of 1992 established the federal crime of
carjacking, which is codified at 18 U.S.C. § 2119. See Pub. L. No. 102-
519, § 101(a), 106 Stat. 3384 (1992). The Violent Crime Control and Law
Enforcement Act of 1994 made carjacking resulting in death subject to the
death penalty. See Pub. L. No. 103-322, § 60003(a)(14), 108 Stat. 1796(1994).
MITCHELL V. UNITED STATES 31
946–49.7 Thus, although the Navajo Nation had clearly
voiced its opposition to the death penalty, even in cases of
first-degree murder, the death penalty remained available to
federal prosecutors in Mitchell’s case because he stole a car
in the course of committing his crimes.
Faced with the possibility that federal prosecutors would
seek the death penalty, the daughter and mother of the victims
strongly urged that the death penalty not be imposed and
made a request to the federal prosecutor that he seek only life
without parole. The Attorney General of the Navajo Nation
Department of Justice, Levon B. Henry, also wrote a letter to
the United States Attorney for the District of Arizona, Paul
Charlton, “express[ing] the current positions of the Navajo
Nation with respect to the possibility of the United States
seeking capital punishment” in Mitchell’s case. Henry
explained that although “the details of the case[] were
shocking,” the Navajo Nation “would not support a death
penalty,” because “[o]ur culture and religion teaches us to
value life and instruct against the taking of human life for
vengeance.” Moreover, Mitchell’s execution would be
directly contrary to the Navajo Nation’s belief that
rehabilitation, not the death penalty, is needed to address
7
The Ninth Circuit has long held that intra-Indian offenses committed
in Indian country may be prosecuted under federal criminal statutes of
general, nationwide applicability such as § 2119 (absent exceptions not
raised in this case), rather than solely under the Major Crimes Act—a
holding I find to be of somewhat dubious merit but that a three-judge
panel cannot revisit. See, e.g., United States v. Begay, 42 F.3d 486,
497–98 (9th Cir. 1994). Because Congress limited the tribal option’s
application to offenses in which federal jurisdiction “is predicated solely
on Indian country”—namely, Major Crimes Act offenses—the Navajo
Nation’s exercise of the tribal option against the death penalty does not
“turn off” that penalty with respect to § 2119. See Mitchell I, 502 F.3d at948–49.
32 MITCHELL V. UNITED STATES
crimes associated with drug and alcohol addiction, in which
category, the Navajo Nation told Congress, the vast majority
of major crimes committed on reservations fall. See supra p.
29 & note 3. As explained below, Mitchell had a long history
of drug and alcohol abuse that contributed to the person he
became and the crimes he committed.
In light of the position of the Navajo Nation and the
family of the victims, United States Attorney Charlton, a
local Arizonan appointed by President George W. Bush, who
was intimately familiar with the relations between the Navajo
tribe and the citizens of the State of Arizona, declined to seek
the death penalty. However, in the words of the victims’
family, the request that the federal government not seek the
death penalty was ultimately “ignored and dishonored.”
Attorney General John Ashcroft overruled Charlton and
forced a capital prosecution based on the carjacking aspect of
the crime, thereby avoiding the application of the tribal
option. The overruling by Ashcroft marked the beginning of
an aggressive expansion of the federal death penalty,
particularly into jurisdictions that did not permit the use of
that penalty. Mitchell was the first object of the new policy.8
8
The third person against whom the federal death penalty has been
enforced since it was reinstated in 1988 was Louis Jones, Jr., who was
neither a mass murderer nor a drug overlord who ordered numerous
killings. Jones, an African-American war veteran, kidnapped and
murdered an airwoman at an air force base. Jones was a highly decorated
soldier, whose 22-year military career included service as an Army
Ranger. Jones returned home from the first Gulf War with post-traumatic
stress disorder and brain damage likely linked to his exposure to nerve gas
during the war—known as Gulf War Syndrome—and displayed symptoms
of that syndrome during his commission of the crime. He was executed
over vigorous protests by United States Senators and others during the
tenure of Attorney General Ashcroft.
MITCHELL V. UNITED STATES 33
The arbitrariness of the death penalty in this case is
apparent. Mitchell raises a number of serious constitutional
issues regarding both his conviction and his death sentence.
Some were litigated on his direct appeal and decided against
him by a fiercely contested two to one vote. Another critical
fundamental constitutional question is decided on this appeal
by a similar division and despite equally strong views
expressed by both sides. Whatever a particular jurist, or even
two, may believe regarding these issues, uncertainty remains,
to say the least, as to whether the judicial proceedings
afforded Mitchell comported with the constitutional
protections to which he is entitled. That uncertainty alone is
sufficient to raise serious questions regarding whether
Mitchell should be put to death by his government.9 Further,
although Mitchell committed a horrible crime, it was hardly
one of national import or of particular federal interest other
than the fact that it involved the Navajo Nation, and all of the
persons with the greatest stake in the outcome of the case
9
I was a member of the divided panel that affirmed Mitchell’s death
sentence on direct appeal. I stand by my dissent explaining the
constitutional infirmities in Mitchell’s conviction and sentence that were
considered there and that I still believe warrant relief. Rather than explain
my reasons again here, a summary of the most significant constitutional
violations follows: First, federal prosecutors colluded with tribal
authorities to detain Mitchell and elicit confessions from him in violation
of his federal rights to timely arraignment and to counsel. Mitchell I,
502 F.3d at 998–1002 (Reinhardt, J., dissenting). Next, the prosecutor
struck the only African-American juror on the venire in violation of
Batson v. Kentucky, 476 U.S. 79, (1986). See Mitchell I, 502 F.3d at1003–06 (Reinhardt, J., dissenting). Then, as to the penalty phase, (1) the
district court allowed Mitchell to be absent from the sentencing phase in
direct contravention of the Federal Rules of Criminal Procedure, meaning
the jurors did not have to face the man they were sending to his death;
(2) the prosecutor made numerous improper statements intended to arouse
the passion of the jury; and (3) the district court failed to instruct the jury
on the proper burden of proof. See id. at 1006–14.
34 MITCHELL V. UNITED STATES
oppose his execution. The novel use of carjacking as a
loophole to circumvent the tribal option also renders this an
anomalous case. Mitchell will, unless spared by executive
clemency, in all likelihood, suffer the ignominious fate of
being the first person to be executed for an intra-Indian crime
that occurred in Indian country. While this court’s
jurisprudence indeed gives the federal government the legal
authority to exercise jurisdiction over this case for the
purpose of obtaining capital punishment, succeeding in that
objective over the express objections of the Navajo Nation
and the victims’ family reflects a lack of sensitivity to the
tribe’s values and autonomy and demonstrates a lack of
respect for its status as a sovereign entity. Should the federal
government pursue a death warrant for Mitchell, I hope that
it will have better reasons for doing so than adherence to the
wishes of a former attorney general.10
II.
I now turn to the legal question at issue on this appeal:
whether Mitchell was deprived of effective assistance of
counsel in violation of the Sixth Amendment.11 I would hold
10
See Amnesty Int’l, USA Capital Deficit: A Submission on the Death
Penalty to the UN Human Rights Comm., at 8 (Sept. 2013), available at
http://www.amnestyusa.org/sites/default/files/amr510622013en.pdf
(“[T]here is nothing to stop any administration, consistent with the
[International Convention on Civil and Political Rights], supporting
reversal of the death sentence . . . .”).
11
With respect to the guilt-phase claim at issue on this appeal, I would
hold that Mitchell was not prejudiced by any deficient performance on
counsel’s part. As noted supra note 9, I would have granted guilt- and
penalty-phase relief based on claims raised on direct appeal. Most of the
uncertified claims relate to those claims. I thus find it unnecessary to
address the uncertified claims on this appeal.
MITCHELL V. UNITED STATES 35
that counsel performed deficiently at the penalty phase for
two independent reasons: First, counsel’s decision to present
a tepid “good guy” defense—that Mitchell’s was “a life worth
saving”—was unreasonable in light of the nature of the
horrific acts Mitchell committed and in light of the mitigating
evidence in counsel’s possession: evidence of drug and
alcohol abuse, physical abuse, and of emotional and mental
problems that would have helped the jury understand what
led up to Mitchell’s commission of those acts. Second,
counsel did not perform a constitutionally adequate
investigation into the mitigating evidence, failing to pursue
obvious leads before deciding to abandon the latter defense.
Counsel thus did not make a reasonable strategic decision to
forego further investigation of mitigating evidence in favor of
presenting a “good guy” defense—a defense it is difficult to
conceive of any reasonable juror crediting. Finally, I conclude
that there is a reasonable probability that but for counsel’s
deficient performance, at least one juror would have found
(1) that the crimes were at least in part attributable to
Mitchell’s exceedingly unfortunate background, including his
long history of drug and alcohol abuse, the physical and
emotional abuse he suffered as a child, and his ensuing
mental and emotional problems; (2) that these circumstances
collectively rendered him less culpable than he might
otherwise have been; and (3) that life without parole rather
than the extreme penalty of death was the appropriate
punishment.
A.
“[C]ertain defense strategies may be so ill-chosen that
they may render counsel’s overall representation
constitutionally defective.” Silva v. Woodford, 279 F.3d 825,
846 (9th Cir. 2002), as amended (quotation marks omitted).
36 MITCHELL V. UNITED STATES
The ill-prepared “good guy” defense that counsel presented
at the penalty phase in this case was clearly doomed from the
start. The lead penalty-phase attorney Gregory Bartolomei
had never tried a murder case, much less a capital one, and
his so-called strategy was no strategy at all. After the defense
essentially conceded the guilt phase in a gruesome double
murder (it presented no witnesses), counsel planned a half-
day penalty-phase defense seeking to portray Mitchell as
generally a nice fellow. To do so instead of presenting
evidence that his abusive childhood, drug and alcohol abuse,
and mental and emotional problems contributed to his violent
acts was “patently deficient” performance in violation of the
Sixth Amendment. Id.The majority identifies three “themes” of the penalty-
phase defense: (1) that Mitchell had redeeming qualities
making him a “life worth saving” (also known as a “good
guy” defense); (2) “that Johnny Orsinger was the mastermind
behind these crimes”; and (3) that the Navajo Nation did not
want Mitchell sentenced to death. Maj. Opinion at 26–28. In
reality, the defense that counsel presented centered almost
exclusively on the first theme—that Mitchell had been a
“good guy.” That argument had no chance of convincing a
jury to return a sentence other than death. Life without parole
could hardly have been justified by the snippets of normal
conduct which counsel chose to offer to the jury. The latter
two themes were barely included in the defense as presented,
but if properly developed, would have been wholly consistent
with the defense that counsel should have offered: a far more
plausible defense that sought to explain how the crimes
ultimately were attributable in large measure to Mitchell’s
drug and alcohol addiction, wretched upbringing, and the
ensuing mental and emotional difficulties from which he
suffered.
MITCHELL V. UNITED STATES 37
In light of the shocking facts of the double murder of
which the jury had just convicted Mitchell, the “limited
strategy that [counsel] developed was unreasonably
constricted.” Correll v. Ryan, 539 F.3d 938, 945 (9th Cir.
2008). Focusing the penalty-phase presentation on evidence
that Mitchell was “a ‘good person’ and one who had ‘done
good deeds’ . . . was, in and of itself, unreasonable given the
extreme unlikelihood that any testimony about [Mitchell’s]
character would have been sufficient to ‘humanize[] him
during the time frame of the murder conspiracy at issue.’” Id.
at 946 (citation omitted).12 See also Hamilton, 583 F.3d at
1122. In short, “a good character defense was unlikely to be
persuasive to a jury that had just decided that [Mitchell] had
carried out a grizzly murder.” Bemore v. Chappell, No. 12-
99005 (9th Cir. June 9, 2015).
The “most likely” evidence to sway the jury “was the type
that would portray [Mitchell] as a person whose moral sense
was warped by abuse, drugs [and alcohol] [or] mental
incapacity.” Correll, 539 F.3d at 946. Evidence that a
defendant has these kinds of problems provides the jury with
a coherent picture of the circumstances that led to his
criminal acts, see Sears v. Upton, 561 U.S. 945, 951 (2010),
and may lead the jury to reject a death sentence “because of
the belief, long held by this society, that defendants who
commit criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems, may be
12
“Defense counsel compounded the errors he committed during the
investigative stage of the penalty phase by presenting almost none of the
little mitigating evidence he had discovered.” Hamilton v. Ayers, 583 F.3d
1100, 1119 (9th Cir. 2009). Moreover, as explained in the next section,
choosing the “good guy” defense was also unreasonable in light of
counsel’s failure to adequately investigate other more compelling
mitigation evidence.
38 MITCHELL V. UNITED STATES
less culpable than defendants who have no such excuse.”
Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (citation
omitted). Despite possessing evidence that Mitchell had been
physically abused as a child, had long been addicted to drugs
and alcohol, and had serious mental and emotional problems,
defense counsel presented no evidence of such “explanatory
or exculpatory attributes” to the jury and did not pursue
obvious leads regarding those issues. Allen v. Woodford,
395 F.3d 979, 1005–1007 (9th Cir. 2005). Indeed, counsel
made no effort to explain to the jury how a “good guy” could
also be a murderer, arguing only that “something happened”
to Mitchell but “we are never going to know.”13 Counsel’s
failure to present any explanatory mitigating evidence and, as
discussed below, to adequately investigate the existence and
nature of such evidence, constituted deficient performance in
light of the egregious facts and circumstances of Mitchell’s
crimes. See Hamilton, 583 F.3d at 1113 (“Counsel . . . has an
obligation to present and explain to the jury all available
mitigating evidence.”).
To make matters worse, the “good guy” defense that
counsel presented was weak and inadequately prepared—an
“anemic strategy” at best. Correll, 539 F.3d at 945. Counsel
called a number of witnesses to speak to Mitchell’s good
13
Counsel’s penalty-phase presentation “left the false impression that
[Mitchell’s] childhood, while unhappy, was not unusual.” Hamilton,
583 F.3d at 1120. The witnesses’ testimony made only oblique, passing
references to Mitchell’s difficult home life—that he was raised by his
grandparents, who were both educators, in a home where “the word [love]
was never said” that “didn’t give him love”; that his mother “wanted
nothing to do with [him]”; and that it was a “cold home.” In fact, the
defense team intentionally downplayed evidence of Mitchell’s troubled
background—for example, advising one teacher to “stick to only what
[she] knew about . . . Mitchell [from the] classroom” and not to mention
“that he seemed like a boy without a family . . . .”
MITCHELL V. UNITED STATES 39
character, the vast majority of whom had known him only
briefly, when he was in high school. The consensus was that
Mitchell was a good high school student and athlete; that he
was respectful; and that he might be a good teacher to other
prisoners because he had some “computer skills” and
“vocational skills that he could pass on.” None of the
witnesses offered more than a superficial impression of
Mitchell, and most of them had not had any contact with him
since well before the time of the crimes. Moreover, the
conclusion from this “evidence” that Mitchell was a “good
guy” seems to have been one that could have been drawn by
no one other than his counsel. Cf. Allen, 395 F.3d at 1007(holding that character witnesses whose “knowledge of [the
defendant] was neither deep nor contemporaneous with [the]
crimes” were unlikely to persuade the jury to choose life).
Anything positive conveyed to the jury by this tepid
testimony was surely undone when counsel referred to
Mitchell in his closing argument as “a jackass,” and said that
“there is the possibility that if Lezmond Mitchell lives on, he
might help someone else[.] Maybe he won’t. Maybe he will.”
“Witness preparation is a critical function of counsel,”
Doe v. Ayers, 782 F.3d 425, 442 (9th Cir. 2015), yet the
character witnesses were woefully ill prepared. Many had no
contact with defense counsel prior to short meetings on the
day of their testimony—meetings at which counsel primarily
showed them photos of the victims’ bodies and asked whether
they would still testify. Such “spur-of-the-moment mitigation
presentations form no part of constitutionally adequate
representation.” Id. at 443; see also Hamilton, 583 F.3d at
1121 (“[T]he failure to prepare a witness adequately can
render a penalty phase presentation deficient.”). Even those
who had met the defense team prior to the day of testimony
were not prepared “to understand the proceeding in which
40 MITCHELL V. UNITED STATES
[they were] participating,” Doe, 782 F.3d at 443, as counsel
did not tell them what sorts of questions would be asked.
As a result, much of the good character testimony elicited
was quite damaging. Although identifying Mitchell as a “very
excellent student” and “an outstanding athlete,” Dr. Roessel,
executive director of Mitchell’s high school, testified that
Mitchell “broke into [his] office” to steal a computer and a
shotgun, which he used in a robbery, and that he had been
suspended for having a marijuana joint. His wife, Ruth
Roessel, testified to the singular importance of grandmothers
in Navajo families, which allowed the prosecutor to stress
how devastating Slim’s death must have been to her family.
Mitchell’s uncle testified that Mitchell once “disrespected
[him], [his] wife, [and] [his] kids,” by smoking pot in his
house because “in the Native American church . . . marijuana
is evil.”
Meanwhile, the prosecution used the defense’s “good
guy” evidence to its own advantage, arguing that because
Mitchell was smart and a leader, he would not have gotten
involved in the crime purely by accident or because of
Orsinger’s influence; that he had squandered a chance to go
to college; that his home life was better than average; and that
his experiences and environment did not contribute to his
crimes—concluding that their cruelty was “so inexplicable”
that the only reasonable response was to punish the
perpetrator with death. Defense counsel’s failure to submit
any evidence explaining what went wrong in Mitchell’s life
ensured that “the prosecutor’s main argument to the jury
during sentencing was the dearth of evidence in mitigation of
the crimes.” Silva, 279 F.3d at 830. In fact, not only did
counsel fail to challenge the prosecution’s assertion that
Mitchell’s background could not mitigate his culpability for
MITCHELL V. UNITED STATES 41
the crimes, “he effectively validated it,” Hamilton, 583 F.3d
at 1121, by stating in closing that “people come from bad
backgrounds all the time and never get involved in anything
like this.”
The other two themes identified by the majority—that
Orsinger was the mastermind and that the Navajo Nation
opposed the death penalty—could not and did not redeem
counsel’s worthless and implausible “good guy” defense for
two reasons. Most important, these two themes were
irrelevant to counsel’s choice between a doomed “good guy”
defense and a far more plausible defense that sought to
explain how and why Mitchell became a criminal, as the two
subsidiary arguments were fully consistent with either choice.
Counsel’s decision to use them along with the doomed “good
guy” theme did not in any way make the deficient
performance in choosing that theme as the primary defense
any less deficient.
Moreover, these two subsidiary themes were inadequately
developed and halfheartedly presented to the jury. Virtually
no evidence of the “Orsinger was the mastermind” theme was
introduced in the penalty phase, and neither was a serious
argument to that effect made to the jury. The sum total of
penalty-phase evidence pertaining to this theme was
Mitchell’s uncle’s speculative statement that Mitchell “was
a good kid until he met Orsinger,”14 and evidence that
Orsinger had earlier committed a similar crime with someone
else. Then, in closing, counsel asserted that although Mitchell
admitted stabbing Slim, as well as cutting the child’s throat
and throwing rocks on her head, “there is no evidence . . .
14
The uncle admitted on cross-examination that he had no first-hand
knowledge of Orsinger.
42 MITCHELL V. UNITED STATES
Mitchell began the stabbing,” that it was possible that
Orsinger “threw the first rock,” and that “the cause of death
for that child could have been inflicted by the first rock.”
(emphasis added). These hypothetical suppositions did not
constitute a reasonable argument for sparing Mitchell’s life.
As the prosecution pointed out, Mitchell was death-eligible
whether he delivered the fatal blows or not.
The third theme—the Navajo Nation’s opposition to the
death penalty—could have been quite compelling,
particularly if combined with evidence of Mitchell’s drug and
alcohol addiction. Unfortunately, the only evidence that the
jury heard regarding the Navajo Nation’s opposition to the
death penalty consisted of counsel reading from Henry’s
letter. The jury was unaware that the victims’ family had
asked the prosecutor not to seek the death penalty. No
defense witness testified about why the death penalty
contravenes Navajo conceptions of justice, or about the
tribe’s belief that rehabilitation, not the death sentence, is
needed to address major crimes committed on the reservation,
most of which are associated with alcohol addiction. Indeed,
counsel seems not to have even realized this was a potential
theme; the Navajo Nation’s opposition to Mitchell’s
execution was never formally presented to the jury as a
mitigating factor.15 In combination with the missing direct
evidence of drug and alcohol addiction (along with the other
evidence regarding Mitchell’s emotional and mental
problems and the physical abuse he suffered), evidence
relating to the Navajo Nation’s reasons for opposing his death
15
The seven members of the jury who found the Navajo Nation’s
opposition to the death penalty mitigating included it as write-in non-
statutory mitigator on the verdict form. By contrast, the verdict form
included typed questions regarding the prosecution’s non-statutory
aggravating factors.
MITCHELL V. UNITED STATES 43
sentence could have provided substantial support for a
defense that explained why Mitchell became what he
did—although it provided no support for the “good guy”
argument.
“Defense counsel’s use of mitigation evidence to
complete, deepen, or contextualize the picture of the
defendant presented by the prosecution can be crucial to
persuading jurors that the life of a capital defendant is worth
saving.” Allen, 395 F.3d at 1000. In this case, however,
counsel’s halfhearted attempt at a good character defense
provided no context at all. The jury simply heard mixed
evidence that Mitchell had been an ok guy to a few people at
some point in his life, with no explanation whatsoever
regarding why he committed extremely violent acts that
jurors might well believe no decent human being would
commit. To the contrary, the evidence that counsel failed to
present—that Mitchell was addicted to alcohol and drugs, that
he had been physically abused as a child, and that he had
mental and emotional problems—could have helped persuade
at least one juror that Mitchell was not as culpable as would
have been the good guy from a fine family background that
counsel sought to portray him as being. The strategy
employed by Mitchell’s counsel does not fit with the
commission of the horrific acts of which the jury had just
convicted him. Any reasonable juror would need some
explanation of what was wrong with Mitchell—why what he
did was not simply due to an evil nature. Simply saying he’s
really a good guy with some good qualities could not
conceivably help. Counsel’s strategy—if it can be called
that—was outside “the wide range of reasonable professional
assistance.” Strickland v. Washington, 466 U.S.668, 689
(1984); see also Silva, 279 F.3d at 846 (“[A]n attorney’s
performance is not immunized from Sixth Amendment
44 MITCHELL V. UNITED STATES
challenges simply by attaching to it the label of ‘trial
strategy.’”). I would hold that for this reason alone counsel’s
performance was constitutionally deficient.
B.
Even assuming that counsel’s “good guy” defense
strategy might in some limited circumstances have been
reasonable—and it’s hard to make that assumption given the
nature of the acts that Mitchell committed—the question
remains “whether the investigation supporting their decision
not to introduce mitigating evidence of [Mitchell’s]
background [and to rely on the ‘good guy’ defense] was itself
reasonable.” Wiggins v. Smith, 539 U.S. 510, 511 (2003).
“[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary,” Strickland,
466 U.S. at 690–91, before deciding on the strategy to be
followed at the trial and the penalty phase, with a particular
emphasis on the latter. In fact, “the reasonableness of
counsel’s investigatory and preparatory work at the penalty
phase should be examined in a different, more exacting,
manner than other parts of the trial.” Frierson v. Woodford,
463 F.3d 982, 993 (9th Cir. 2006).
In Mitchell’s case, counsel unduly circumscribed the
scope of the mitigation investigation and prematurely settled
on a “good guy” strategy before obtaining all the facts
necessary to the making of an informed decision. Although
“[n]o particular set of detailed rules” establishes the contours
of competent representation, the Supreme Court and this
MITCHELL V. UNITED STATES 45
court recognize that “[r]estatements of professional standards
. . . can be useful as ‘guides’ to what reasonableness entails
. . . to the extent they describe the professional norms
prevailing when the representation took place.” Doe,
782 F.3d at 434 (quoting Bobby v. Van Hook, 558 U.S. 4, 7
(2009)) (quotation marks omitted); see also Wiggins, 539
U.S. at 524. Counsel’s investigation clearly fell short of the
professional norms in place at the time of Mitchell’s trial,
which included “the duty to investigate mitigating evidence
in exhaustive detail” and required “that counsel’s
investigation cover every period of the defendant’s life from
‘the moment of conception,’ . . . and that counsel contact
‘virtually everyone . . . who knew [the defendant] and his
family’ and obtain records ‘concerning not only the client, but
also his parents, grandparents, siblings, and children.’”
Bobby, 558 U.S. at 8 (quoting ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death
Penalty Cases (“ABA Guidelines”), cmt. to Guideline 10.7
(rev. ed. Feb. 2003)).
Counsel was on notice that Mitchell struggled with drug
and alcohol abuse but unreasonably decided not to investigate
further. Vera Ockenfels, an experienced capital lawyer and
mitigation specialist hired by the defense, provided a
preliminary report that identified Mitchell as a “heavy” user
of crystal methamphetamine, particularly in the months
preceding the crimes, as well as a user of marijuana, cocaine,
and alcohol.16 She informed counsel “that Mitchell was
16
Contrary to the majority’s contention that Ockenfels’ report was
complete, Maj. Op. at 14, it was clearly a draft—the conclusion section of
the report read “[TO BE DRAFTED FOLLOWING EDITS FROM
ATTORNEYS]” and during post-convictions proceedings Ockenfels
explained that it was a “draft document that [she] expected would be
further developed and revised before it was finalized . . . .”
46 MITCHELL V. UNITED STATES
addicted to alcohol and drugs and that he had started using
drugs at age eleven,” and recommended that counsel further
investigate Mitchell’s history of addiction in consultation
with a psychopharmacologist. This advice was not followed.
In fact, when Ockenfels informed counsel that Mitchell’s
addiction could be used as mitigating evidence, Mitchell’s
lawyers simply responded that “there was ‘no mitigation’ in
his case,” and “that the team did not intend to pursue
evidence of Mitchell’s significant history of drug and alcohol
abuse . . . because Mitchell had denied being drunk or high on
drugs at the time of the killings.”
Declining to pursue substance abuse evidence in favor of
a “good guy” defense at this stage was unreasonable for
several reasons: First, Ockenfels had explained that it was
common for young Native American clients to deny addiction
to their attorneys. Second, “[a] defendant’s lack of
cooperation does not eliminate counsel’s duty to investigate.”
Hamilton, 583 F.3d at 1118; see also ABA Guidelines, cmt. to
Guideline 10.7 (describing duty to conduct a “thorough and
independent” investigation regardless of “client statements
concerning the facts of the alleged crime” (emphasis added)).
Third and most important, whether Mitchell was
intoxicated during the commission of the crime was not the
relevant penalty-phase question. Even if evidence of
substance abuse was “[in]sufficient to demonstrate that [the
defendant] lacked the requisite mental state for the crime,” it
remained an “important mitigating factor” for the jury to
consider in that it would have played a major part in
explaining Mitchell’s life story to the jury. Frierson, 463 F.3d
MITCHELL V. UNITED STATES 47
at 994 n.12.17 Evidence that Mitchell was a chronic user of
alcohol and drugs from a young age is the kind of “classic
mitigating evidence” that counsel must pursue at the penalty
phase, Correll, 539 F.3d at 952, irrespective of whether the
defendant was under the influence at the time of the crimes.
Substance abuse constitutes “behavior that can be
characterized as self-medication for the everyday trauma of
his life and for the mental health illnesses that were later
diagnosed.” Id. Evidence of Mitchell’s addiction would have
helped a jury to far better comprehend why he committed the
crimes he did—particularly when linked to the abusive
circumstances in which he was raised. Counsel had a duty to
pursue this lead. Further investigation would have revealed
that Mitchell’s drug and alcohol problems escalated
drastically in the months preceding the crimes. He heavily
used crystal methamphetamine, powder and crack cocaine,
ecstasy, LCD, PCP, marijuana, and alcohol, often staying up
for three nights in a row. It would also have revealed a family
history of alcoholism and the ugly and noxious family
environment in which he was raised.
The majority dismisses counsel’s decision not to
investigate or present evidence of Mitchell’s history of
alcohol and drug abuse as a strategic decision based on “their
professional opinion [that] jurors would be turned off by such
evidence . . . .” Maj. Op. at 16–17. This explanation,
however, is not only inconsistent with the many well-
established judicial conclusions to the contrary, but it is
17
See also Correll, 539 F.3d at 944 (finding ineffective assistance at
penalty phase because “[d]espite his knowledge that [Defendant] was a
drug user . . . defense counsel did not interview witnesses about th[is]
issue[] or obtain records concerning these matters”); ABA Guidelines, cmt.
to Guideline 10.7 (describing “substance abuse” as a mitigating factor
counsel “needs to” explore).
48 MITCHELL V. UNITED STATES
directly contradicted by counsel’s actions in this case, and
thus can only constitute a “post hoc rationalization of
counsel’s conduct.” Wiggins, 539 U.S. at 526–27. In fact,
counsel did introduce evidence of intoxication at the penalty
phase, albeit ineffectively, through the testimony of FBI
Agent Duncan, who testified on cross-examination that he did
not believe Mitchell’s account of having been intoxicated the
day of the crime. Counsel also requested and received a jury
instruction on the statutory mitigating factor of impaired
capacity and, during closing argument, asserted that
“[Mitchell] was so drunk that he didn’t even remember where
this all happened and he blacked out . . . .” Thus, “counsel
never actually abandoned the possibility” of introducing
evidence of drug and alcohol abuse but instead presented a
“halfhearted mitigation case” on the matter ineptly and
without proper investigation. Wiggins, 539 U.S. at 526.
Most important, the weak evidence of drug and alcohol
use that counsel haphazardly introduced was deployed for the
wrong purpose. The point was not that Mitchell was
intoxicated during the crimes to the point that he lost
control—an unsubstantiated claim that likely did “turn off”
the jury. Rather, evidence of Mitchell’s long history of
addiction commencing at an early age—which was easily
corroborated, as post-conviction counsel found—could have
been used effectively to give the jury a complete picture of
why Mitchell became the person he was. Trial counsel,
however, failed to conduct the investigation necessary to
make a reasonably informed decision regarding whether to
present evidence that Mitchell’s struggle with addiction and
his otherwise damaging life history mitigated his culpability.
The resulting unexplored and undeveloped presentation that
he was simply drunk at the time was wholly unbelievable and
served only to undermine the “good guy” defense. Clearly no
MITCHELL V. UNITED STATES 49
reasonable strategic decision to withhold evidence of
Mitchell’s drug and alcohol addiction or to end the
investigation into such evidence was made; nor could it have
been made without investigating in “exhaustive detail” all
aspects of Mitchell’s life that could have contributed to his
ultimately committing so horrendous an offense. Bobby,
558 U.S. at 8.18
Counsel did not, it is clear, adequately investigate
Mitchell’s family history or make a reasonable decision not
to investigate further. Counsel was on notice from Ockenfels’
draft report that Mitchell’s home life was marked by
abandonment, instability, isolation, and abuse. For example,
Ockenfels found that Mitchell’s mother, with whom he lived
until seventh grade, was physically abusive, as was his
grandmother, with whom he lived periodically. An uncle had
observed that Mitchell “‘never had a chance’ with his
family,” while Dr. Roessell told Ockenfels that Mitchell “was
‘on his own from the time he was born.’” Ockenfels
concluded that by high school “the neglect [Mitchell] had
endured had taken its toll and had hardened him.”
Counsel did not follow up on any of these leads. The
defense team’s view was that “nothing [stood] out . . . . [The
family was] educated. They were, at least . . . by reservation
standards, . . . middle-class.” In short, the attorneys ignored
red flags regarding physical and emotional abuse, instead
taking away from Ockenfels’ report and their own interviews
18
Moreover, the “two sentencing strategies” of (1) good character
evidence and (2) explanatory mitigating evidence of drug and alcohol
abuse, mental illness, or a difficult background “are not mutually
exclusive.” Bemore, No. 12-99005 (quotation marks omitted). Thus,
counsel could not have made a reasonable strategic decision to cut off the
investigation into the latter type of evidence to focus solely on the former.
50 MITCHELL V. UNITED STATES
with Mitchell’s family only that “he came from basically a
family of educators.” They accordingly ceased investigating
Mitchell’s family background, unreasonably constricting the
mitigation investigation and presentation to good character
evidence.
This premature narrowing of the scope of the mitigation
investigation was not within the range of reasonable
professional conduct. “It is imperative that all relevant
mitigating information be unearthed for consideration at the
capital sentencing phase.” Caro v. Calderon, 165 F.3d 1223,
1227 (9th Cir. 1999) (quotation marks omitted). “[I]f what
counsel knows or should know suggests further investigation
might yield more mitigating evidence, counsel must conduct
that investigation.” Doe, 782 F.3d at 435. Had counsel
conducted further inquiry, additional mitigating evidence ripe
for presentation at the penalty phase would have been
uncovered. The post-conviction investigation revealed that
Mitchell’s home was far more violent and dysfunctional than
Ockenfels’ incomplete draft report suggested; there was
“constant uncertainty of what would happen . . . because of
the verbal and sometimes physical abuse, and the emotional
abuse . . . .”
One particularly egregious deficiency of the mitigation
investigation into family history bears mention. Even though
the defense team knew that Mitchell’s grandfather George
was “‘the only one who raised [him],” they uncovered only
very elementary background information about him—that he
had ten siblings; that he had held “several teaching and
administrative positions in several Reservation schools”; that
he married Mitchell’s grandmother when she was thirteen and
was twenty years her senior; and that he was a “dour, sour
man.” Critically, counsel failed to investigate Ockenfels’
MITCHELL V. UNITED STATES 51
finding that both of Mitchell’s grandparents and his uncle had
told him that he was the product of rape and/or that his
grandfather was also his father. Growing up with this
“knowledge,” true or false, is certain to adversely affect an
individual’s emotional well-being.
Had counsel further investigated George—consistent with
the ABA Guidelines’ requirement of an “extensive and
generally unparalleled investigation into personal and family
history” that includes “[t]he collection of corroborating
information from multiple sources,” ABA Guidelines, cmt. to
Guideline 10.7—they would have learned that there were
“persistent rumors regarding George molesting children.”
Residents of the reservation told post-conviction investigators
that George was fired from a school principal position
because he molested children. His wife’s sisters also alleged
that he raped them when they were nine and twelve years old,
respectively, and his wife told a relative that he molested the
three-year-old child of a neighbor. Mitchell’s mother, Sherry,
told post-conviction investigators that her mother (George’s
wife) repeatedly accused her of having a sexual relationship
with George and that some people thought Mitchell was the
product of incest.19 Sherry also “stated an uncertainty whether
or not George may have molested [Mitchell].”20
19
Although Sherry did not believe that her father had sex with her, she
reported memories of a man with “whiskers” kissing her while she was
asleep and of a vision that her “father had performed a binding ceremony
with [her] when [she] was little” and that the “ceremony meant that . . .
[she] would become his wife, which included having sex with him.”
20
Trial counsel “did not get much of a history of [Mitchell]’s life from
his mother” Sherry because she stopped cooperating when Ockenfels,
against her express instructions, told Mitchell certain things she had said.
However, even without Sherry’s cooperation, an adequate investigation
52 MITCHELL V. UNITED STATES
The majority dismisses the evidence that Mitchell’s
primary caregiver was a pedophile and rapist as of “dubious
relevance” because the alleged conduct took place “sometime
in the 1950s and 1960s, about 20 years before Mitchell was
born,” Mitchell never met the alleged victims, and there was
no allegation that George ever molested Mitchell himself.
Maj. Op. at 23–24. The conduct was not, however, limited to
the 1950s and 1960s. For example, the complaints of sexual
abuse lodged against George when he was a principal
pertained to incidents in 1985 or 1986.
Moreover, the majority’s belief that it is of little relevance
that Mitchell was primarily raised by a man who was
probably a child molester is puzzling for several reasons.
First, this court routinely upholds lifetime requirements that
sex offenders avoid any contact with minors, reasoning that
“‘the perpetrators of child sexual abuse crimes’ often have
‘deep-seated aberrant sexual disorders that are not likely to
disappear within a few years . . . .’” United States v. Williams,
636 F.3d 1229, 1234 (9th Cir. 2011) (citation omitted).
Second, the sexual abuse allegations against George could
have been presented to the jury as evidence of the degree to
which his family neglected him, as his “mother and
grandmother knowingly gave up his care for extended periods
of time . . . [to] a man whom they knew sexually preyed on
children.” Third, the atmosphere in a home dominated by a
child molester was necessarily fraught with tension, sexual
and otherwise, an atmosphere hardly conducive to the healthy
emotional development of a young child. Fourth and most
important, Mitchell’s attorneys could not reach any
conclusion regarding the relevance or value of mitigating
would likely have uncovered the sexual abuse allegations made by other
family members and residents of the Navajo Reservation.
MITCHELL V. UNITED STATES 53
evidence pertaining to the sexual abuse allegations until they
reasonably investigated those allegations. It was undoubtedly
constitutionally deficient performance for counsel to fail to
perform any investigation whatsoever into the allegations
after having been alerted to them by Ockenfels’ draft report.
Finally, the investigation into Mitchell’s mental health
was also inadequate. “The presence of certain elements in a
capital defendant’s background, such as a family history of
alcoholism, abuse, and emotional problems, triggers a duty to
conduct further inquiry before choosing to cease
investigating,” Doe, 782 F.3d at 435 (quotation marks and
citation omitted), but counsel failed to pursue clear leads
regarding Mitchell’s mental problems. First, counsel did not
follow up on Ockenfels’ finding that when Mitchell
underwent counseling at age seventeen, a doctor found him
to be “a very troubled young man” in need of “[i]ntensive
psychotherapy” who experienced suicidal ideation when his
family fought. Counsel also ignored Ockenfels’
recommendation that they hire a forensic psychologist to
explain how Mitchell’s upbringing had caused him to turn to
alcohol and drug abuse.
Second, the majority overstates its case when it asserts
that Dr. Morenz, who oversaw the team evaluating Mitchell,
“did not recommend further testing.” Maj. Op. at 16.21 Rather,
21
The majority erroneously relies on the purported evaluation of
psychologist Susan Parrish in ruling that counsel reasonably decided not
to further investigate Mitchell’s mental problems. See Maj. Op. at 14–15.
It is unclear whether Dr. Parrish actually performed a complete psychiatric
evaluation of Mitchell. Although one attorney stated in a post-conviction
deposition that Dr. Parrish diagnosed Mitchell as a sociopath and indicated
that she would not serve as a witness, Bartolomei, the attorney in charge
of the penalty phase, testified that her role was “more to assist in
54 MITCHELL V. UNITED STATES
in addition to finding polysubstance abuse and “significant
depressive symptoms,” Dr. Morenz concluded that Mitchell
may “have some subtle brain dysfunction in the frontal lobes
caused by his head injuries . . . [that] might have contributed
to Mr. Mitchell being more impulsive . . . including . . .
during the time of the alleged instant offenses.” He suggested
that “[a] PET scan could be obtained that could, if abnormal,
contribute further corroborating evidence to the diagnosis of
a cognitive disorder not otherwise specified.” Counsel neither
discussed Dr. Morenz’s report with him, followed up on these
leads, nor presented any evidence of Mitchell’s mental
problems to the jury.
The majority asserts that counsel made a reasonable
decision not to further investigate or to present mental health
evidence for fear that doing so would open the door to
damaging aspects of Dr. Morenz’s report. Maj. Op. at 16–17.
However, the question is not, as the majority appears to
believe, whether it was reasonable not to call Dr. Morenz to
the stand. There may be good reasons not to call a particular
witness, but counsel cannot forego an entire line of inquiry on
that basis unless there is no way, other than the problematic
witness, to get that evidence before the jury. See Karis v.
Calderon, 283 F.3d 1117, 1140 (9th Cir. 2002) (holding that
even if “[i]t was within the range of reasonable tactics not to
put [a certain witness] on the stand, . . . that does not excuse
the failure to present the evidence of abuse through other
witnesses”); see also Doe, 782 F.3d at 439 (“Other witnesses,
such as those whom habeas counsel was able to find, were
‘easily within [counsel’s] reach,’ and would have been
discovered by trial counsel, ‘[h]ad [he] only looked.”)
coordinating or reviewing materials or giving ideas” and stated, “I don’t
believe she . . . ever [made] a DSM-IV assessment.”
MITCHELL V. UNITED STATES 55
(quoting Wallace v. Stewart, 184 F.3d 1112, 1116 (9th Cir.
1999)) (some alterations in original); Wiggins, 539 U.S. at
527 (“[A] court must consider not only the quantum of
evidence already known to counsel, but also whether the
known evidence would lead a reasonable attorney to
investigate further.”). Nothing suggests that Dr. Morenz was
the only mental health witness available. Indeed, Ockenfels
referred counsel to a forensic psychologist whom she
believed could provide a helpful synthesis of Mitchell’s
history to the jury. There is no indication in the record that
counsel ever contacted him.
Moreover, at the penalty phase, “counsel has an
affirmative duty to provide mental health experts with
information needed to develop an accurate profile of the
defendant’s mental health.” Caro v. Woodford, 280 F.3d
1247, 1254 (9th Cir. 2002). In this case, however, the
inadequacy of counsel’s investigation into Mitchell’s
personal and family history tainted the mental health
investigation. For example, Dr. Morenz stated during post-
convictions proceedings that he “would have developed
further” whether Mitchell’s “perceptions of reality might
have been altered” at the time of the crimes had he known the
full extent of Mitchell’s addictions and Dr. Stewart, a
psychiatrist who examined Mitchell post-conviction, reached
a diagnosis of post-traumatic stress disorder based in part on
the evidence uncovered post-conviction regarding the
“severity and frequency” of the abuse Mitchell experienced
as a child.
“[A]ll potentially mitigating evidence is relevant at the
sentencing phase of a death case” and thus counsel had a duty
to investigate further once put on notice that Mitchell
struggled with addiction, that he had a troubled childhood,
56 MITCHELL V. UNITED STATES
and that he had mental and emotional problems. Wallace,
184 F.3d at 1117 n.5 (emphasis added). Counsel failed to
appreciate, however, that evidence of these mitigating
circumstances “may help” the penalty-phase defense “even if
they don’t rise to a specific, technically-defined level.” Id. In
short, “counsel were not in a position to make a reasonable
strategic choice as to whether to focus on” a “good guy”
defense, “the sordid details of [Mitchell’s] life history, or
both, because the investigation supporting their choice was
unreasonable.” Wiggins, 539 U.S. at 536. I would accordingly
hold that for this reason as well counsel’s performance was
constitutionally deficient.
C.
In order to establish a violation of the defendant’s Sixth
Amendment right to effective counsel, it is not enough that
counsel performed deficiently. The defendant must also have
been prejudiced. In this case, when one evaluates “the totality
of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the habeas proceeding” and
reweighs it against the aggravating evidence, “there is a
reasonable probability that at least one juror would have
struck a different balance between life and death” but for
counsel’s deficient performance. Hamilton, 583 F.3d at 1131(quotation marks and citation omitted).
A number of factors tell us that a death sentence was far
from a foregone conclusion in this case: (1) Notwithstanding
the attorneys’ deficient performance, the jurors found a
number of mitigating factors, including, for example, a
unanimous finding that Mitchell’s lack of a prior record was
mitigating and a finding by seven jurors that the Navajo
Nation’s opposition to the death penalty was mitigating.
MITCHELL V. UNITED STATES 57
(2) Neither the Arizona United States Attorney, the Navajo
Nation, nor the victims’ family wanted to see Mitchell
executed. (3) Neither Orsinger, who was a minor at the time
of the crime, nor his adult accomplice in another strikingly
similar double murder were sentenced to death.
Most important, “there was a substantial amount of
classic mitigating evidence that could have been presented,
but was not.” Correll, 539 F.3d at 952. Evidence that Mitchell
suffered from severe drug and alcohol abuse problems, was
raised by a child molester, experienced physical and
emotional abuse, and had mental problems is “precisely the
type of evidence we have found critical for a jury to consider
when deciding whether to impose a death sentence,” Douglas
v. Woodford, 316 F.3d 1079, 1090 (9th Cir. 2003), yet the
case that counsel presented gave the mistaken impression that
no such mitigating circumstances were present. See supra
note 13. Indeed counsel gave the jurors precisely the opposite
impression—that Mitchell simply came from a middle-class
home of educators and had a rather unremarkable upbringing
that made his inexplicably heinous crimes deserving of
punishment by death.
“[B]oth this court and the Supreme Court have
consistently held that counsel’s failure to present readily
available evidence of childhood abuse, mental illness, and
drug addiction is sufficient to undermine confidence in the
result of a sentencing proceeding, and thereby to render
counsel’s performance prejudicial.” Lambright v. Schriro,
490 F.3d 1103, 1121 (9th Cir. 2007); see also Hamilton,
583 F.3d at 1113 (“In a capital case, such evidence [of a
disadvantaged background, emotional or mental problems]
can be the difference between a life sentence and a sentence
of death.”). Here, evidence of Mitchell’s abusive history, as
58 MITCHELL V. UNITED STATES
well as his addiction and mental problems, would have been
especially compelling when combined with evidence that the
Navajo Nation opposes the death penalty in part because
addiction plays a substantial role in most “major crimes
committed on the Navajo Nation” and the Navajos fervently
believe that treatment, not execution, is the proper long-term
answer. Supra p. 29 & note 3.
True, “[t]he aggravating evidence in [Mitchell’s] case was
strong, but it was not so overwhelming as to preclude the
possibility of a life sentence. Heinous crimes do not make
mitigating evidence irrelevant.” Hovey v. Ayers, 458 F.3d
892, 930 (9th Cir. 2006); see also Hamilton, 583 F.3d at 1134(“[E]ven the gruesome nature of a crime does not necessarily
mean the death penalty [i]s unavoidable.” (quotation marks
and citations omitted)). In my view, notwithstanding
Mitchell’s terrible criminal acts, the likelihood of a different
outcome (which required the casting of only a single vote
against the imposition of the death penalty) had counsel
competently investigated and presented the mitigation case
that could have been put before the jury is “sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S.
at 694. Thus, in my opinion, counsel’s constitutionally
deficient performance was indeed prejudicial.
In this respect, I would add a final thought. This is a
purely federal habeas case—a federal court’s review of a
federal conviction. Any concern that we might have
regarding the doctrine of comity when we review a state
conviction does not apply. That is, this case involves
prosecution and judicial review by one sovereign—the
federal government—and not a federal court’s review of the
criminal adjudication of a second sovereign government—a
state. In this case, we owe no deference to what another
MITCHELL V. UNITED STATES 59
sovereign’s court has done and we are perfectly free to review
the important questions in this case de novo. The majority,
however, fails to recognize this key distinction from the usual
habeas cases heard by our court seeking relief from a state
conviction, inappropriately relying on cases in which the
Antiterrorism and Effective Death Penalty Act applies. In this
case, the only other sovereign government to which comity
might apply is the Navajo Nation, which vigorously opposes
Mitchell’s death sentence. Although there is no obligation to
defer to its legal rulings, perhaps the jury would have given
more weight to its pleas had Mitchell’s counsel presented a
case that helped explain how his disadvantaged background,
addiction, and mental and emotional difficulties contributed
to his commission of his crimes and rendered him less
culpable, even though the federal government itself seemed
totally unmoved by the concerns and interests of the
sovereign primarily affected.
Conclusion
The majority tragically errs in sending Mitchell on to his
death notwithstanding the fact that he was deprived of
effective representation and a fair trial. I sincerely hope that
the executive branch will not compound the error by carrying
out Mitchell’s execution in violation of the Constitution, as
well as in contravention of the wishes of the Navajo Nation
and the family of the victims. It is time for those with the
ultimate power to decide the fate of federal prisoners to arrive
at a more sensible policy regarding the execution of our
citizens by the federal government and to apply it to
Mitchell’s case. At the very least, arbitrariness must not be a
60 MITCHELL V. UNITED STATES
factor.22 There are currently fifty-nine inmates on federal
death row awaiting execution, yet just three executions have
been carried out since the reinstatement of the federal death
penalty in 1988. There is little value in adding to this backlog
someone like Mitchell who committed a crime solely of local
interest to the Navajo Nation, brutal as that crime may have
been. Most important, there is still a place in our federal
system for clemency—for the commutation of a death
sentence to life without the possibility of parole (or even,
given Mitchell’s age at the time of the crimes, life
simpliciter). A very recent ABC News/Washington Post poll
shows that for the first time a majority of our citizens favors
life without parole over the government’s taking of human
life.23 I am hopeful that if and when the President is required
to determine whether capital punishment is the appropriate
remedy for Mitchell’s offenses, he (or she) will bear in mind
both the interests of justice and the wishes of the victims’
family, the Navajo Nation, and the American people.
I dissent.
22
President Obama ordered the Justice Department to consider a formal
moratorium on federal executions, but that effort stalled when Attorney
General Holder announced his plans to resign. See Matt Apuzzo, U.S.
Backed Off on Push to End Death Penalty, N.Y. Times, April 30, 2015,
at A1.
23
Damla Ergun, New Low in Preference for the Death Penalty, ABC
News (June 5, 2014), http://abcnews.go.com/blogs/politics/2014/06/new-
low-in- preference-for-the-death-penalty/.