Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding. D.C. No. 4:03-cv-00229-DCB.
The opinion of the court was delivered by: Paez, Circuit Judge
Argued and Submitted January 27, 2010 -- Pasadena, California.
Before: Harry Pregerson, M. Margaret McKeown, and Richard A. Paez, Circuit Judges.
An Arizona judge sentenced David Scott Detrich to death after a jury convicted him of murder, kidnapping, and sexual abuse. After exhausting his state remedies, Detrich filed a petition for habeas corpus in federal district court alleging, among other things, that his trial counsel was unconstitution-ally ineffective at the penalty phase for failing to investigate and present substantial mitigating evidence and for failing to rebut the state's arguments that aggravating circumstances warranted a death sentence.*fn2 Applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, the district court denied relief. We reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
As recounted in the Arizona Supreme Court's opinion on direct appeal, Detrich and a co-worker, Alan Charlton, left work on November 4, 1989, and went to a local bar in Benson, Arizona, where the two consumed between 12 and 24 beers each, according to Charlton's estimate. State v. Detrich (Detrich II), 932 P.2d 1328, 1331 (Ariz. 1997). The men then drove to Tucson, where they drank more beer at more bars. Id. Later that night, they picked up Elizabeth Souter, the eventual victim, who was walking along the road. Id. At Detrich's request, Souter directed him to a "roadhouse" where he could buy cocaine. Id. The two men and Souter then drove to Souter's home, where Detrich attempted to cook the cocaine in a spoon so that it could be injected. Id. When the syringe would not pick up the cocaine, Detrich began screaming that "the needle wasn't any good, or the cocaine wasn't any good" and told Souter that she would have to pay for the bad drugs by having sex with him. Id. Three witnesses-Charlton and two others-reported that Detrich was holding a knife against Souter's throat. Id.
Detrich then told Souter they were going for a ride, and Detrich, Charlton, and Souter left in Charlton's car. Id. Charlton drove, Detrich sat in the middle, and Souter sat on the passenger side, against the door. Id. Charlton testified that, while stopped at a red light, he saw Detrich "humping" Souter and asking her how she liked it. Id. Soon thereafter, Charlton looked again and saw that Souter's throat was slit. Id. Charlton further testified that Detrich then hit Souter and asked her who gave her the drugs, and that Souter only gurgled in response. Id. at 1331-32. Detrich asked twice more, and Souter again responded with only a gurgle. Id. at 1332. Charlton claims that he never saw Detrich actually stab Souter, but that he himself was poked in the arm with a knife several times. Id. A pathologist established that Souter was stabbed forty times. Id.
Charlton testified that, at this point, Detrich said to him, "It's dead but it's warm. Do you want a shot at it?" Id. Charlton declined. Id. The two pulled over in a remote area approximately fifteen minutes from Souter's home, and Detrich dragged Souter's body into the desert. Id. The two men then drove to a friend's house in Tucson. Id. The friend testified that the men showed up at his house at 4 a.m., that Detrich was covered in blood, and that Charlton had blood only on his right side. Id. About an hour later, Detrich told the friend that he had killed a girl by slitting her throat because she had given them bad drugs. Id.
Several days later, the friend called in an anonymous tip to the police. Id. Based on the tip, the police arrested Charlton, who confessed to his involvement in the crime. Id. Several days later, Detrich was arrested in New Mexico with a folding knife in his possession. Id. Although Charlton admitted the knife was his, he explained that it often fell out of his pants, and that Detrich had the knife on the night of the murder and the next morning, when it was covered in blood. Id.
Charlton entered into a plea bargain under which he pleaded guilty to kidnapping and agreed to testify against Det-rich in exchange for the prosecution dropping the capital murder charge against him. Charlton was sentenced to ten and a half years' imprisonment.
B. 1990-1991 Trial, Sentencing, and Appeal
Detrich was charged with first-degree murder, kidnapping, and sexual assault. State v. Detrich (Detrich I), 873 P.2d 1302, 1304 (Ariz. 1994). Detrich's first trial ended in a mis-trial when a prosecution witness mentioned that Detrich had invoked his right to remain silent at one point during the investigation. Id. After a retrial, the jury convicted Detrich of first-degree murder and kidnapping, acquitted him of sexual assault, and convicted him of the lesser-included offense of sexual abuse. Id. The state sought the death penalty. See id. at 1303.
Pursuant to Arizona law, the sentencing judge held a hearing to determine whether aggravating and mitigating circumstances were present. See Ariz. Rev. Stat. § 13-703(B) (1995).*fn3
Under Arizona law at the time, if the sentencing judge found one or more of ten enumerated aggravating circumstances, he had to impose the death penalty unless mitigating circumstances outweighed the aggravating factors. Id. § 13-703(E). At the sentencing hearing, the prosecution urged the court to find as an aggravating circumstance that the crime was "especially cruel, heinous, or depraved."
In response, defense counsel noted that a doctor had testified that he could not tell whether the victim had actually experienced conscious, physical pain and suffering and urged the court to find several mitigating circumstances. First, counsel argued that Detrich did not have the capacity to appreciate the wrongfulness of his acts or to conform his conduct to the law due to his extreme intoxication, and possible black-out, at the time of the murder. In support of this argument, counsel noted that Detrich had no known pattern of aggressive behavior and that Detrich's problems with alcohol had existed since he was nine years old. Further, defense counsel urged the court to find as mitigating circumstances Detrich's co-defendant's mere ten-and-a-half-year sentence and Detrich's remorse.
Three days after this hearing, the trial judge sentenced Det-rich to death, concluding that the murder had been committed in an "especially cruel, heinous, and depraved" manner, and that no mitigating circumstances were proven.
Detrich appealed his conviction and sentence to the Arizona Supreme Court. See Detrich I, 873 P.2d at 1303. That court reversed his kidnapping and murder convictions because of a defective jury instruction and remanded for a new trial on those charges. Id. at 1306 07.
C. 1994-1995 Trial, Sentencing, and Appeal
New counsel, Harold Higgins, was appointed for Detrich's retrial. The jury convicted Detrich of kidnapping and first-degree murder, but did not unanimously agree on a single theory of first-degree murder: nine jurors found premeditation; eleven found felony murder; and eight found both.
The prosecution sought the death penalty and filed a sentencing memorandum alleging as an aggravating circumstance that the crime was especially cruel, heinous, and depraved, and arguing that this aggravating factor outweighed the mitigating factors. In response, Detrich's counsel filed a three-page sentencing memorandum that did not challenge the state's aggravation case, and instead argued that the court should not impose the death penalty because the jury's lack of unanimity about whether Detrich had committed premeditated murder or just felony murder indicated that the jury was not convinced that Detrich actually committed the murder. In addition, the memorandum pointed to new evidence presented at the second trial that suggested that Charlton, not Detrich, may have actually killed Souter.
The sentencing memorandum also listed five mitigating factors, with little elaboration or argument: Detrich's diminished capacity due to voluntary intoxication, his "abusive background," his lack of previous convictions involving serious injury or threat thereof, his remorse, and the minimal sentence received by his co-defendant. The only elaboration on any of these factors was a note that Detrich's "abusive background" was "[f]ully detailed in" an October 18, 1994, letter from Detrich's sister, and an explanation that "[t]he evidence was clear that Defendant Detrich was highly intoxicated due to alcohol at the time of the incident, and perhaps had also ingested cocaine. In addition, [the sister's letter] makes it clear Defendant has a lengthy history of alcohol abuse and was encouraged into same by his parent-figures."
Higgins did little to bolster these arguments. He did not employ a mitigation investigator, nor did he ask his investigator, James Williams, to investigate mitigating evidence. In any event, Williams was not qualified to do a life history investigation. At most, Williams made phone calls to family members, but no one responded. According to Detrich's sister, Diana Jo Stevens, someone from the defense team contacted her shortly before the sentencing hearing and asked her to write a letter "about David." She wrote the letters not knowing what to include or for what purpose they would be used. In all, Higgins spent only ten and a half hours on the penalty phase of Detrich's trial, including the time spent at the penalty-phase hearings themselves.
In February 1995, the court held an aggravation/mitigation hearing. At the beginning of the hearing, Higgins gave the sentencing judge two more letters, totaling ten hand-written pages, from Detrich's sister, Diana Jo Stevens. One letter provided information about Detrich's abusive childhood, and the other letter simply made a plea for mercy. To give himself time to consider these newly submitted letters, the trial judge scheduled the sentencing for two days later.
At the aggravation/mitigation hearing, the prosecution argued that the crime was "especially cruel, heinous, [and] depraved," an aggravating circumstance that could authorize a death sentence under Arizona Revised Statutes § 13-703(F)(6). The prosecution argued that the crime was "especially cruel" because Souter suffered a slit throat and forty- five knife injuries, some of which were defensive; because she was conscious during some of the attack, as indicated by her gurgling attempts to respond to Detrich's questions; and because she suffered mentally when she was held at knifepoint and threatened with sexual assault. In addition, the prosecution argued that the crime was "especially heinous or depraved" because it involved gratuitous violence, "well beyond that required to accomplish the killing"; because Det-rich apparently relished the murder, as evidenced by his asking Charlton if he "want[ed] a shot" at the dead body and his telling a friend the next morning that he slit her throat because she had gotten him bad drugs; because the killing was senseless; and because the victim was helpless.
Higgins responded with three arguments: (1) Detrich was not death-eligible under Tison v. Arizona, 481 U.S. 137 (1987), because he did not actually commit the murder, (2) the crime was not especially cruel, heinous, or depraved, and (3) mitigating circumstances called for leniency. First, Higgins argued that Detrich was not death-eligible under Tison v. Arizona, given the "many uncertainties that now exist as to what specifically happened, and as to who did what." In support of this argument, Higgins pointed to new evidence presented in Detrich's second trial suggesting that Detrich may not have actually committed the murder. Higgins argued that the jurors' failure to reach unanimous agreement that Detrich had committed premeditated murder reflected their doubt about Charlton's testimony that Detrich had murdered the victim. According to Higgins, if Detrich was not the perpetrator, he was not death-eligible under Tison.
Second, to rebut the prosecution's aggravation case, Higgins argued that the uncertainty about who actually committed the murder prevented finding that Detrich had acted in a cruel, heinous, or depraved manner. In addition, Higgins argued that many of the knife wounds were "minor"; that it was unclear whether Souter lived, and suffered, after the first of the most serious wounds was inflicted; and that Charlton's statement that Detrich had asked him if he "want[ed] a shot at" the dead body was of questionable credibility.
Third, Higgins argued that mitigating circumstances warranted leniency. In support of his mitigation case, Higgins called no witnesses, introduced as evidence only the three letters from Detrich's sister, Diana Jo Stevens, and made a short argument spanning only five transcript pages.
In his mitigation argument, Higgins first contended that Detrich's intoxication at the time of the crime diminished his capacity to appreciate the wrongfulness of his conduct. Higgins explained that Detrich had a longstanding problem with alcohol, as he had been "encouraged by a parent at a very, very early age to engage in this type of alcohol abuse," and that, given this history, Detrich's intoxication should not be considered fully "voluntary." As the pre-sentence report ("PSR") and letters from Detrich's sister reported, Detrich had begun using alcohol at age eight or nine at the encouragement of his step-father, Skip. When Skip and Detrich's mother would fight, Skip would take Detrich and leave, and the two would stay out drinking all night long. When Detrich was about fifteen years old, he could guzzle a half-pint of whiskey in one drink for Skip's friends. Once, Skip and Det-rich went on a week-long drinking spree and ended up three hundred miles away.
Higgins next briefly pointed to abuse Detrich suffered as a child as a mitigating factor. According to the letters from Detrich's sister, Detrich had suffered physical and mental abuse and had been introduced to drinking by his parents. Although Higgins did not present any live witnesses or other evidence that would compellingly portray Detrich's abusive childhood, the sentencing judge was aware of the basic facts of Detrich's upbringing from the PSR, psychological reports (none of which Higgins had provided the court), and the letters from Detrich's sister. In particular, the sentencing judge knew that Detrich was born with a cleft palate that was surgically cor- rected, that his parents divorced when he was young, and that he and his siblings began living with their father after his father and step-mother refused to let them return to their mother's home after a two-week visit. The sentencing judge knew that Detrich was "severely mistreated and frequently physically abused" by his step-mother, Jean, who frequently told the children how much she hated them and did not want them around, once held Detrich underwater in the bathtub, and once tied him to a post outside, telling him he was no better than a dog. Detrich sometimes wet the bed at night, and Jean would spank him with a belt, make him wash the sheets before school, and publicly humiliate him about it. Once, Jean pushed Detrich's brother, Danny, down the basement steps and then put a pistol to Danny's head, screaming that she would kill the kids if they told their father what happened. After five years with their father, Detrich and his siblings moved back with their mother and Skip. Skip was verbally and physically abusive to Detrich's mother, who abused drugs and was "just there." As a child, Detrich would sometimes leave for two or three weeks, and his mother would never ask him where he had been.
At the aggravation/mitigation hearing, Higgins next pointed out that Detrich had no prior criminal record involving violence and that he had exhibited remorse about having been involved in the crime. Additionally, Higgins suggested that the short sentence given to Charlton should constitute a mitigating circumstance. Finally, Higgins urged the court to consider as mitigation the fact that Detrich had a ten-year-old son, "who ought to have some contact with some fatherly influence."
The prosecutor then rebutted defense counsel's arguments that there was residual doubt about who actually committed the murder and that mitigating circumstances warranted a sentence less than death. The prosecutor dismissed the evidence of Detrich's abusive childhood because "there has to be some kind of causal connection between the abuse or the dysfunc- tional family background and the conduct." Higgins did not respond to this, or any other, argument.
Two days later, the court sentenced Detrich to death. The court found that Detrich was death-eligible under Tison and that the prosecution had proved the statutory aggravating circumstance that the crime was especially cruel, heinous, and depraved.
The court also found five mitigating circumstances to be present, but ascribed them little weight. Specifically, the court found as mitigating circumstances the fact that Detrich's intoxication significantly impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law, his abusive background, his remorse, his lack of prior convictions involving violence, and the fact that his intoxication on the night of the murder stemmed from a longstanding history of alcohol and substance abuse. The court found that these mitigating factors were "not sufficiently substantial to outweigh the aggravating circumstances [sic] of having committed this offense in an especially cruel, heinous or depraved manner" and accordingly sentenced Detrich to death.
Detrich again appealed his conviction and sentence to the Arizona Supreme Court. See Detrich II, 932 P.2d at 1331. The Supreme Court affirmed Detrich's sentence and convictions. Id. at 1340.
D. State Petition for Post-Conviction Relief
Detrich filed a petition for post-conviction relief in state court, alleging, among other things, that his trial counsel was ineffective for failing to present mitigating evidence and for failing to present an expert witness to rebut the state's aggravation case. Detrich's post-conviction counsel repeatedly requested funding for an investigator to assist in preparing Detrich's petition for post-conviction relief or, in the alternative, an evidentiary hearing on this request. The court denied the requests and ultimately ruled on the petition without appointing an investigator or holding an evidentiary hearing.
The post-conviction court, however, did grant funding for a neuropsychological expert, Dr. Robert Briggs, who produced a report on Detrich's neuropsychological functioning. The report concluded that Detrich's decision-making, especially when compromised by alcohol, "was not based on any consequence-driven thought process, but rather a leaned [sic] behavior that bypassed right or wrong." According to Dr. Briggs, Detrich's abuse led him to develop a "mindset . . . in which instinct took over and reason could not be accessed." On neuropsychological testing, Detrich performed "in the normal range of psychological function," earning a score of 25 on a scale for which scores between 0 and 26 were normal. Dr. Briggs's report explained, however, that this represented "a recovered picture," and that "improvement in function occurs as time (and sobriety) from the incidents [of head injuries and drug use] increase." Dr. Briggs further opined that an interaction between Detrich's emotional status and mild neuropsychological deficits likely caused a greater overall impairment in function. Finally, the report concluded, among other things, that, as would be expected given his abusive childhood, Detrich was immature, alienated, self-indulgent, aggressive, impulsive, hostile, resentful, and irritable; that his abusive childhood could have taught him to use violence; and that he may have antisocial or paranoid personality or paranoid disorder. Detrich's post-conviction counsel requested an evidentiary hearing on the neuropsychological findings, explaining that Dr. Briggs could testify that Detrich was brain damaged and impulsive, and that his impulsiveness, combined with the effects of alcohol, constituted mitigating circumstances. The state court denied the request.
This report supplemented other new evidence that counsel presented to the state post-conviction court. As exhibits to the petition for relief, counsel attached statements by Detrich's mother, sister, and step-father that provided additional details about the abuse Detrich suffered as a child, the custody battle between his mother and father, his history of drinking alcohol with his ...