* Judges Michael W. McConnell and Timothy M. Tymkovic h joined the

court after oral argument in the instant case and d id not participate in this decision. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 21 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT LEROY BRYAN,

Petitioner-Appellant,

v. MIKE MULLIN, Warden, Oklahoma State Penitentiary,

Respondent-Appellee. No. 00-6090

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-97-1967-R)

Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbi son & Lewis (F. Andrew Fugitt, with him on the briefs), Oklahoma City, Okl ahoma, for PetitionerAppellant. David M. Brockman, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief s), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before TACHA , Chief Judge, SEYMOUR , EBEL , KELLY , HENRY , BRISCOE , LUCERO , MURPHY , HARTZ , and O’BRIEN , Circuit Judges. *-2-

MURPHY , Circuit Judge.

I. INTRODUCTION Robert Leroy Bryan was convicted in Oklahoma state court of first degree malice murder and sentenced to death. See Bryan v. State (Bryan I) , 935 P.2d 338 (Okla. Crim. App. 1997). After the Oklahoma Co urt of Criminal Appeals denied his state petition for post-conviction relie f, see Bryan v. State (Bryan II) , 948 P.2d 1230 (Okla. Crim. App. 1997), Bryan filed the instant 28 U.S.C. § 2254 habeas petition in federal district court, alleging , inter alia : (1) the state failed to adduce sufficient evidence to support his convictio n for first degree malice murder; (2) counsel labored under a conflict of int erest; (3) counsel was ineffective at both the guilt and penalty phases of his trial because counsel failed to present mental health evidence; and (4) he was i ncompetent to stand trial. The district court denied relief. A panel of this court unanimously concluded that Bryan was not entitled to relief on his evidence-su fficiency, conflict of interest, and competency claims. See Bryan v. Gibson (Bryan III) , 276 F.3d 1163, 1166- 68, 1172-75, 1168-72 (10th Cir. 2001); id. at 1179, 1180 (Henry, J., concurring in part and dissenting in part). The panel, althou gh divided, further held that trial counsel had not rendered ineffective assistance dur ing either the guilt or penalty phase of the trial by failing to present mental hea lth evidence. Compare id. at1 As to Bryan’s argument that his counsel rendered in effective assistance

during the guilt phase of the trial, Judge Henry si mply indicated as follows: “I believe that counsel was ineffective in the guilt p hase, but I will concentrate on Mr. Bryan’s best argument: that he received unreaso nably ineffective assistance in the all-important ‘second’ or ‘sentencing phase. ’” Bryan III, 276 F.3d at 1180 (Henry, J., concurring in part and dissenting in part).

2 In his supplemental brief before the en banc court, Bryan focuses exclusively on the question whether his trial couns el was ineffective in failing to present potentially mitigating mental health eviden ce during the penalty phase of the trial. He does not address at all whether coun sel was constitutionally ineffective during the guilt phase of the trial. -3- 1172-79 (panel majority), with id. at 1182-85 (Henry, J., concurring in part and dissenting in part). 1 A majority of the active judges of this court order ed the case reheard en banc and requested that the parties brief whether trial counsel rendered constitutionally ineffective assistance when he fai led to present evidence of Bryan’s mental illness “during either the guilt or penalty phases of the trial.” 2 Upon consideration of the parties’ briefs and submi ssions, we vacate that portion of the panel opinion addressing Bryan’s claim of in effective assistance of trial counsel, see id. at 1175-79, and affirm the denial of habeas relief for the reasons set out below. We do not reconsider as an en banc court the panel’s denial of habeas relief as to Bryan’s evidence-sufficiency, c ompetency, or conflict of interest claims. See id. at 1166-68, 1168-72, 1172-75. Accordingly, all remaining portions of the panel opinion remain undi sturbed.-4- II. BACKGROUND A. Factual Background The evidence presented at trial linking Bryan to th e murder of his aunt, Inabel Bryan, was almost entirely circumstantial. Inabel disappeared from her home in September of 1993. A neighbor found tire m arks at Inabel’s home matching the tracks of a car Bryan had rented at th at time. A potted plant was also found at Inabel’s home; Bryan purchased that p lant the day Inabel disappeared. Police found Inabel’s body, and a rec eipt for the purchase of the plant, several days after her disappearance on a parcel of property owned by Bryan’s parents. Inabel died from a gunshot wound to the forehead; a pillowcase was duct-taped over her head. There was a single s et of vehicle tracks present at the scene; the tracks matched the tread pattern of the right rear tire on Bryan’s rental car. Authorities searched the property where Inabel’s bo dy was found because, several years earlier, Bryan had solicited an under cover police officer to kidnap and kill a local banker and dump the body at the same location. This solicitation scheme included plans to force the banker to sign anumber of fraudulent promissory notes and personal checks. Similarly, i n this case, Bryan possessed several handwritten promissory notes and agreements in which Inabel purportedly agreed she owed him millions of dollars as a resultof an investment in his failed-5-

businesses. A handwriting expert testified Bryan w rote the agreements and forged Inabel’s signature. Police also found in Bryan’s possession several of Inabel’s personal checks. According to the expert, Bryan had forged Inabel’s signature on one of the checks and had made four ot hers signed by Inabel payable to himself in varying amounts. Police found Inabel ’s checkbook just outside the Bryan home, burned in a can of ashes. Before Inabel’s disappearance, Bryan rented a car f rom a local dealership. When making the arrangements, he requested a car wi th a large trunk. When he returned the car two days after Inabel’s disappearance, he could not pay the rental fee. He did, however, show the owner of the dealer ship one of the forged checks. Police found a hair in the trunk similar t o the hair of the victim. They also found grass and vegetation, like that on the p roperty where Inabel’s body was discovered, throughout the car’s undercarriage. Fibers lining the trunk were similar to those on Inabel’s clothes and tape found on or near her body. Police located additional evidence in Bryan’s bedro om tying Bryan to the murder. They discovered a roll of duct tape of the same type as pieces found near Inabel’s body and on the pillowcase over her h ead. An expert testified that the edges of the tape taken from Bryan’s bedroom matched the edges of one of the pieces of tape near Inabel’s body. Police also found ammunition in Bryan’s bedroom consistent with the type of ammunition used to kill Inabel and-6-

consistent with a bullet in the rental car. A meta llurgy study indicated that all the bullets—the one that killed Inabel, the one in the rental car, and the ones in the Bryan home—were manufactured at the same time and c ould have come from the same box. B. Additional Background The issues before this court turn on evidence of Bryan’s mental health at the time of the murder and the non-use of that evid ence during both the guilt and penalty phases of Bryan’s trial. As a consequence, some brief additional background is in order. Bryan has a history of organic brain disease, possi bly related to his severe case of diabetes mellitus, dating back to his mid-twenties. In 1989, when Bryan was forty-nine-years-old, he was charged with solic itation of murder relating to the scheme to kidnap and kill the banker described above. He was initially found incompetent to stand trial and was sent to Eastern State Hospital in March of 1989 for treatment. Bryan was diagnosed as sufferi ng from an organic delusional disorder and was considered severely psychotic at t he time of his admission to the hospital. Doctors also discovered that Bryan’s bra in exhibited significant signs of atrophy. Doctors treated Bryan’s diabetes and m edicated him with Navane, an antipsychotic drug, until Bryan was determined comp etent in 1990.3 This competency hearing failed to comply with the d ictates of the United

States Supreme Court’s decision in Cooper v. Oklahoma , 517 U.S. 348 (1996), because Bryan was required to prove his incompetenc e to stand trial by clear and convincing evidence. See Bryan I, 935 P.2d at 347. Accordingly, a retrospective competency hearing was conducted in 1996 utilizing the proper preponderanceof-the-evidence standard; Bryan was also found comp etent during this proceeding. See id. ; Bryan III, 276 F.3d at 1168-72. -7- After Bryan was charged in 1993 with Inabel’s murde r, Bryan’s family hired Raymond Munkres to represent Bryan. At the arraignment, Munkres expressed serious doubt as to Bryan’s competency an d made an oral motion for a competency determination. A jury trial on the ques tion of Bryan’s competency was eventually held on December 30, 1993. Because it was beyond the financial resources of Bryan’s family, Munkres did not presen t any medical testimony at the hearing. Instead, Munkres adduced the testimon y of Mike Jackson, an individual who volunteered his services to Munkres as an investigator. The essence of Munkres’ presentation at the competency hearing was that Bryan was incompetent because the version of events he descri bed surrounding the murder had no basis in reality, but that Bryan nonetheless sincerely believed in the veracity of his version of events. The jury conclu ded that Bryan had failed to demonstrate that he was incompetent to undergo furt her criminal proceedings. 3 On January 3, 1994, just four days after the compet ency trial was completed, Bryan filed a letter with the trial court indicating as follows: “I wish to advise the court that as [of] this date I am dis missing my attorney of record-8-

because of philosophical differences in how this ca se should proceed in my best and most aggressive defense to the charges leveled against me.” The trial court allowed Munkres to withdraw from the case and appoi nted the Oklahoma Indigent Defense System (“OIDS”) to represent Bryan

. Wesley Gibson of the OIDS replaced Munkres as Bryan ’s attorney. Like Munkres, Gibson could not verify Bryan’s version of the events surrounding the murder. Gibson hired Dr. J.R. Smith, a board-certi fied psychiatrist, to evaluate Bryan. It was Dr. Smith’s opinion that Bryan’s “de lusional system and circumstantiality of thought (as well as the fluctu ating blood sugar levels) affect his ability to assist his attorney in his own defen se. He produces volumes of information that are irrelevant and often erroneous (but believed by the patient).” Based on the information provided by Dr. Smith, Gib son requested a second competency hearing. At a hearing on the applicatio n, the trial court considered the testimony of Gibson and the sheriff in charge o f the jail where Bryan was housed, as well as the affidavit of Dr. Smith. The trial court denied the application for a new competency hearing, concludin g that there was no doubt that Bryan was then competent. Gibson continued to represent Bryan until May of 19 94, when he had a slight stroke. He was replaced by Steven Hess, als o of the OIDS. Hess continued to consult medical experts and hired Dr. Philip Murphy, a clinical-9-

psychologist, to evaluate Bryan. Based on an evalu ation which included numerous psychological tests and a review of relevant medical records, Dr. Murphy concluded as follows: “Mr. Bryan suffers fro m a serious mental disorder which places into serious question his competence t o stand trial, as well as his legal culpability in the crimes for which he is charged.” Based on the opinions expressed by Drs. Smith and M urphy, and the two unsuccessful attempts to challenge Bryan’s competen cy, Hess thought it was in Bryan’s best interest to utilize an insanity defens e rather than to continue to litigate the competency issue. Accordingly, Hess f iled a notice of intent to rely on the insanity defense and a witness list setting out expert witnesses, including particularly Drs. Smith and Murphy, in support of s uch a defense. When Hess informed Bryan and his parents that he intended to utilize an insanity defense, both Bryan and his parents expressed their disappro val. Shortly thereafter, Bryan and his parents informed Hess that he would be repl aced by privately retained counsel. In so doing, they indicated that Hess was being replaced because he had filed the notice to rely on an insanity defense. Hess was replaced by Jack Freeman. Freeman contact ed Hess and indicated that he would be Hess’ replacement. He a lso set up a meeting with Hess and the medical experts. Hess turned over Bry an’s file to Freeman, including all of the records and expert reports on Bryan’s mental health.4 On direct appeal to the OCCA, Bryan was represented by William Luker

of the OIDS. -10- Freeman did not ultimately present any mental health evidence during either the guilt or penalty phase of Bryan’s trial, although h e arranged for Dr. Murphy to be available in case his testimony would be helpful du ring the guilt phase of the trial.

III. ANALYSIS A. Standard of Review On direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”), Bryan asserted that Freeman was ineffective during both the guilt and penalty phases of the trial because he failed to present ev idence of Bryan’s mental illness. 4 Contemporaneously with the filing of his opening brief on direct appeal, Bryan filed an application for an evidentiary heari ng, supported by affidavits, seeking a hearing on the issue of trial counsel’s i neffectiveness for “failure to utilize available evidence of [Bryan’s] mental illn ess at any point in the trial.” The OCCA did not specifically reject Bryan’s reques t for an evidentiary hearing; it did so implicitly, however, when it proceeded to the merits of Bryan’s ineffective assistance claims without an evidentiary hearing and denied him relief. See Bryan I, 935 P.2d at 263.-11-

In the instant § 2254 habeas corpus petition, Bryan asserted the same claims of ineffective assistance he asserted in state court. The federal district court granted Bryan an evidentiary hearing, made fi ndings of fact and conclusions of law, and denied relief. Although th e respondent contended before the district court that an evidentiary hearing was unnecessary because “there is plenty of information in the record before this Cou rt to make that determination,” he did not raise the propriety of that hearing befo re this court. Accordingly, the panel declined to address the question whether the district court should have granted Bryan an evidentiary hearing on his claims of ineffective assistance. See Bryan III, 276 F.3d at 1172 n.6 (citing Romano v. Gibson , 239 F.3d 1156, 1174 n.9 (10th Cir. 2001) (declining to consider proprie ty of district court’s grant of an evidentiary hearing when such hearing had already t aken place and respondent had not challenged on appeal district court’s decis ion to grant hearing)). In the order granting rehearing en banc , this court instructed the parties to address the following questions: Did the district court’s decision to take evidence on Mr. Bryan’s claim that his counsel was ineffective in failing t o present mental health evidence at trial comport with 28 U.S.C. § 2 254(e)(2)? By failing to argue the issue on appeal, did the gover nment waive its objection to the district court’s grant of an evide ntiary hearing? In his supplemental brief, the respondent cites Romano and asserts that the issue is not “properly before this court for review at th is time” because he did not-12-

appeal the district court’s grant of an evidentiary hearing. The respondent nevertheless proceeds to brief the issue on the mer its and again asserts that an evidentiary hearing was unnecessary because “there [was] plenty of information in the [existing state court] record” to decide the merits of Bryan’s claims of ineffective assistance. We conclude that the distr ict court’s decision to grant Bryan an evidentiary hearing on his claims of ineff ective assistance did not contravene 28 U.S.C. § 2254(e)(2). Accordingly, itis unnecessary to determine what steps a respondent must undertake to preserve an objection, predicated on § 2254(e)(2), to a district court decision to grant ahabeas petitioner an evidentiary hearing. Section 2254(e)(2) provides that “[i]f the applican t has failed to develop the factual basis of a claim in State court proceed ings, the court shall not hold an evidentiary hearing on the claim unless the applicant” satisfies one of the two exceptions set out in § 2254(e)(2)(A) or (B). If, however, the petitioner did not “fail[] to develop the factual basis of [his] claim in State court,” id. , § 2254(e)(2) is not applicable and a federal habeas court should proceed to analyze whether a hearing is appropriate or required under pre-AEDPA standards. Miller v. Champion , 161 F.3d 1249, 1253 (10th Cir. 1998). Under thos e standards, Bryan is entitled to an evidentiary hearing “so long as h is allegations, if true and not contravened by the existing factual record, would e ntitle him to habeas relief.”5 See Williams v. Taylor , 529 U.S. 420, 432 (2000) (“Under the opening

clause of § 2254(e)(2), a failure to develop the fa ctual basis of a claim is not established unless there is lack of diligence, or s ome greater fault, attributable to the prisoner or the prisoner’s counsel.”); Miller v. Champion , 161 F.3d 1249, 1253 (10th Cir. 1998) (noting that the petitioner h ad sought and been denied an evidentiary hearing in state court and concluding t hat where “a habeas petitioner has diligently sought to develop the factual basis underlying his habeas petition, but a state court has prevented him from doing so, § 2254(e)(2) does not apply”). -13- Id. See generally Medina v. Barnes , 71 F.3d 363, 369-71 (10th Cir. 1995) (discussing at length pre-AEDPA standard for obtain ing an evidentiary hearing). In his supplemental brief before the en banc court, the respondent does not dispute that Bryan diligently sought to develop the factual basis underlying his claims of ineffective assistance in state court. 5 Instead, he argues that the evidentiary hearing was inappropriate because Bryan ’s allegations “are contravened by the existing record.” Respondent’s Brief at 19. Notably, however, the respondent does not identify those portions of the state court record which allegedly contravene the allegations of ineff ective assistance set out in Bryan’s § 2254 habeas petition. Instead, he broadl y asserts that the trial record contained sufficient information to allow the OCCA to decide the merits of Bryan’s claims without an evidentiary hearing and t hat, in light of that record, the decision of the OCCA rejecting Bryan’s claims of in effective assistance is neither6 See Respondent’s Brief at 20 (“[B]ecause Petitioner di d develop his

ineffective assistance of trial counsel [claim] fornot presenting the mental health evidence there was sufficient information in the re cord to determine if the state court decision was contrary to, or an unreasonable application of, clearly established law.”). -14- contrary to nor an unreasonable interpretation of g overning Supreme Court precedent. 6 We find the respondent’s argument, which is not sup ported by a single citation to the state court record, unconvincing. This court has reviewed the entire state court record, including the transcriptof the retrospective competency hearing. Although that record contains much inform ation relevant to the question whether Freeman’s failure to utilize mental health evidence during both the guilt and penalty phases of Bryan’s trial was constitutio nally ineffective, it is missing key testimony from Freeman regarding what he knew and understood about Bryan’s mental health history and, most importantly , why he decided not to utilize that evidence. It is exactly this informat ion Bryan sought to develop in state court when he requested an evidentiary hearin g before the OCCA. Because Bryan diligently sought to “develop the factual bas is of [his] claim in State court proceedings,” § 2254(e)(2) does not bar an evidenti ary hearing. Accordingly, the appropriate question is whether Bryan was entitled to a hearing under pre-AEDPA law. See Miller , 161 F.3d at 1253 (holding that preAEDPA standards govern question of propriety of granting an evidentiary-15-

hearing when a petitioner diligently sought to deve lop the factual basis of his claim in state court and citing Medina , 71 F.3d at 368-69, as setting out the controlling pre-AEDPA standard). The answer to that question is clearly “yes.” See Medina , 71 F.3d at 369-70 (examining controlling Supreme Court cases and holding that those cases require “an evidentiary he aring when the facts were not adequately developed in the state court, so long as that failure is not attributable to the petitioner”). Having determined that the district court correctly afforded Bryan an evidentiary hearing on his claims of ineffective as sistance, the appropriate standard of review is that set out in Miller

. [I]neffective assistance claim[s] present[] a mixed question of law and fact. Because our analysis of this claim primarily involves consideration of legal principles, we review this c laim de novo. Further, we note that because the state court did n ot hold any evidentiary hearing, we are in the same position to evaluate the factual record as it was. Accordingly, to the exte nt the state court’s dismissal of [petitioner’s ineffective assistance c laim] was based on its own factual findings, we need not afford those findings any deference.7 In light of Miller , the panel erred in applying the deferential revie w

standards set out in § 2254(d) and (e) in reviewing Bryan’s claims that his trial counsel was ineffective. See Bryan III, 276 F.3d at 1177 (concluding that OCCA’s resolution of Bryan’s claim of ineffective a ssistance during guilt phase was not contrary to or an unreasonable application of Supreme Court precedent pursuant to § 2254(d)(1)); id. (same as regards OCCA’s resolution of Bryan’s claim of ineffective assistance during penalty phas e).

8 In a published dissent from the denial of rehearing en banc , four judges of the Fifth Circuit registered their agreement with Millerand noted that the rule adopted by the Fifth Circuit mandated the perverse result of deferring to legal and factual determinations made by state courts, ev en though a habeas petitioner had never been afforded a full and fair opportunity to develop the factual basis of his claim in state court. See Valdez v. Cockrell , 288 F.3d 702, 703-05 (5th Cir. 2002) (Dennis, J., dissenting from the denial of th e Petition for Rehearing En Banc). -16- Miller , 161 F.3d at 1254 (citations omitted). 7 But see Valdez v. Cockrell , 274 F.3d 941, 953 (5th Cir. 2001) (specifically rejecti ng Millerapproach and holding instead that even where a petitioner was denied a f ull and fair hearing, federal court is obligated to apply the deferential review standards set out in § 2254(d) and (e)). 8 In these circumstances, this court accepts the di strict court’s factual findings unless they are clearly erroneous and revi ews de novo whether counsel’s performance was legally deficient and whether the d eficiencies prejudiced the defendant. See United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995).
B. Discussion “A convicted defendant’s [or habeas petitioner’s] c laim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components.” Strickland v. Washington , 466 U.S. 668, 687-17-

(1984); see also id. at 697 (“The principles governing ineffectiveness claims should apply in federal collateral proceedings as t hey do on direct appeal or in motions for a new trial.”). To be entitled to reli ef, a petitioner must prove both that his counsel’s performance was deficient and th at the deficient performance prejudiced his defense. See id. at 687 (“Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”). To carry his burden of demonstrating that counsel’s performance was deficient, a petitioner must show “that counsel made errors so s erious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. To carry his burden of demonstrating prejudice, apetitioner must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. The Supreme Court has made clear that “there is no reason for a court deciding an ineffective assistance claim to approac h the inquiry in [any particular order] or even to address both components of the in quiry if the defendant makes an insufficient showing on one.” Id. at 697. As set out more fully below, this court resolves Bryan’s claim of ineffective assistance on the basis of Strickland ’s performance prong. For that reason, and because itis important to reemphasize-18-

that “[j]udicial scrutiny of counsel’s performance must be highly deferential,” we set out the Supreme Court’s teachings on the matterat some length. Id. at 689. The proper measure of attorney performance is that of reasonably effective assistance under prevailing professional norms, con sidering all of the surrounding circumstances. Id. at 687-88. The Court has been crystal clear that “[j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel ’s assistance after conviction or adverse sentence, and it is all too easy for a c ourt, examining counsel’s defense after it has proved unsuccessful, to conclu de that a particular act or omission of counsel was unreasonable. ” Id. at 689. For that reason, a reviewing court must “reconstruct the circumstances of counse l’s challenged conduct [and] evaluate [that] conduct from counsel’s perspective at the time.” Id. ; see also id. at 690 (“[A] court deciding an actual ineffectivene ss claim must judge the reasonableness of counsel’s challenged conduct on t he facts of the particular case, viewed as of the time of counsel’s conduct.”) . Because of the difficulties that inhere in such a process, “a court must indulg e a strong presumption that counsel’s conduct falls within the wide range of re asonable professional assistance.” Id. at 689 (emphasis added). The importance of this p resumption cannot be overstated. This is made clear by the Co urt’s repeated invocation of the “strong presumption” that counsel provided cons titutionally adequate9 As noted above, Bryan’s counsel ignored this court’ s request that he

address in his supplemental en banc brief the question of the effectiveness of trial counsel’s performance during the guilt phase. See supran.2. -19- assistance. See id. at 690 (“[T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and m ade all significant decisions in the exercise of reasonable professional judgment .”); id. at 696 (“In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceedin g is unreliable because of a breakdown in the adversarial process that our syste m counts on to produce just results.”). Thus, this court must analyze whether Bryan has add uced sufficient evidence to overcome the strong presumption that tr ial counsel provided constitutionally adequate assistance during both th e guilt and penalty phase of Bryan’s capital trial. In so doing, we recognize t he “need to apply even closer scrutiny when reviewing attorney performance during the sentencing phase of a capital case.” Battenfield v. Gibson , 236 F.3d 1215, 1226 (10th Cir. 2001) (quotations omitted). 1. Failure to present mental health evidence during the guilt phase In his brief before the panel, 9 Bryan contended that Freeman should have presented evidence of his mental illness during the trial’s guilt stage in support of either an insanity defense or in support of a secon d-degree murder instruction. In10 Freeman testified as follows: Counsel: Do you recall at that County Line meeting what Dr. (continued...) -20- particular, Bryan relies on a report prepared by Dr . Murphy for the defense in May of 1994 which indicates that “Mr. Bryan suffers from a serious mental disorder which places into serious question . . . h is legal culpability in the crimes for which he is charged.” Bryan asserts that this evidence, when coupled with the interview performed by Dr. Smith, evidence deri ved from CAT and SPECT scans of Bryan’s brain, and the Eastern State Hospi tal records, casts doubt on his ability to form an intent to kill. Bryan’s arguments regarding the viability of a guil t-phase insanity defense are completely at odds with the testimony adduced at the evidentiary hearing conducted by the district court. To assert an insanity defense, “Oklahoma . . . requir[es] the defendant to show that at the time o f the crime he suffered from a mental disease or defect rendering him unable to di fferentiate between right and wrong, or unable to understand the nature and conse quences of his actions.” James v. Gibson , 211 F.3d 543, 553 (10th Cir. 2000) (quotation omi tted). Despite the statements in Dr. Murphy’s May 1994 rep ort relied upon so heavily by Bryan, Freeman testified unequivocally that both Drs. Murphy and Smith told him that Bryan was not legally insane and that he r elied on the doctors’ opinions in formulating his trial strategy. 10 Freeman’s testimony in this regard was fully10 (...continued)

Smith’s opinion was as to the petitioner’s sanity?

. . . . Freeman: Yes, sir, I do, because that was one of th e things that I wanted to learn was where we stood on the matter of insanity question. And Dr. Smith’s response was, in being a sked a question as to whether or not Mr. Bryan was legally insane, that he was not. I believe what he said was, if I refresh my recollect ion, that he might be crazy but he was not legally insane.

. . . . Counsel: Mr. Freeman, we were discussing your meeti ng with certain members of the defense team at the County L ine Restaurant. Now, let me ask you: Do you recall that Dr. Smith p rovided you an opinion as to whether the petitioner could or could not form the intent to kill? Freeman: No, sir, I do not remember. I do not reco llect him giving me any such opinion. Counsel: You do recall or do you recall, though, th at he gave you an opinion as to legal sanity? Freeman: Yes. Counsel: And did Dr. Murphy give you an opinion, li kewise? Freeman: Yes, he did. Counsel: And was it the same as Dr. Smith’s, essent ially? Freeman: Yes, sir. Counsel: And did you rely on the opinion of these e xperts? Freeman: Yes, sir. -21- corroborated by testimony provided by Hess at the f ederal evidentiary hearing. Hess specifically testified there was no medical ev idence indicating that Bryan did not understand the consequences of his actions and no medical evidence that would provide a defense during the guilt phase of t he trial. Instead of presenting a viable defense based on medical evidence during t he guilt phase of the trial, Hess’ strategy was to utilize the guilt phase to lay the foundation for a mitigation11 Hess testified as follows: Counsel: After you had talked with some various exp erts and talked with Mr. Bryan and conducted your investigat ion, did you arrive at a strategy for how to defend the case? Hess: Yes, I did. Counsel: And what was that strategy, please? Hess: We filed a notice of intent to rely on the in sanity defense, the reason being the version of the case t hat was provided with—by Mr. Bryan varied very little over the two m onths that I spent talking to him. It was the same story every time we talked. That factual basis provided by Mr. Bryan did not me et what the factual basis was as the evidence in this case showed, and our belief was to put Mr. Bryan—try the case, put Mr. B ryan on the stand in Stage 1, let him tell the jury his story, and then follow that up with either Dr. Smith or Dr. Murphy, to start laying the groundwork for where all my evidence was invariably going to go, which was a Stage 2 mental health defense in mitigation to—in an attempt to save Mr. Bryan from the death sentence.

12Nor would the medical evidence Freeman possessed have supported an instruction for second degree murder. Under Oklaho ma law, second degree murder “occurs ‘[w]hen perpetrated by an act immine ntly dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.’” Gilson v. State , 8 P.3d 883, 917 (Okla. Crim. App. 2000) (quoting Okla. Stat. Ann. tit. 21, § 701.8(1)). The facts in this case do not sug gest the lack of a premeditated intent to kill the victim. Rather, Inabel was abdu cted from her home and shot, having had a pillowcase taped over her head. Furth er, as the testimony of Hess and Freeman set out above demonstrate, there was si mply no evidence available at trial specifically indicating Bryan was not capable of forming the requisite intent for first degree malice murder. -22- case at the penalty phase. 11 Accordingly, Freeman lacked the medical evidence necessary to present an insanity defense at the gui lt stage of Bryan’s trial. 1213 Bryan testified at the federal evidentiary hearing as follows: Counsel: Mr. Bryan, is it fair to say that neither you nor your parents wanted Mr. Freeman or any earlier lawyer, f or that matter, to use any evidence of your alleged mental evidence in court? Bryan: That’s correct. Counsel: Was that clearly communicated to Mr. Freem an? Bryan: It was.

14 With regard to the possibility of a plea agreement, Gibson, Bryan’s first OIDS attorney, testified as follows during Bryan’s retrospective competency hearing: Gibson: There were considerable plea negotiations i n the case. There were plea offers of plea—again, my discussion s and advice to Mr. Bryan was on numerous occasions that he accept those offers.

. . . . Counsel: Well, Mr. Gibson, since its been opened up , what was the only offer ever made to you for a recommend ation in regard to this man? Gibson: I don’t want to misspeak, [Counsel]. There were discussions and I’m not absolutely sure whether a f irm offer was made or what some DA’s would consider an offer, butI—it was my understanding and what I communicated to Mr. Bryan was that the State would accept a plea, even a plea of nolo cont endere to a life without parole sentence. -23- Significantly, Bryan did not want his attorney to p resent evidence suggesting he was mentally ill 13 ; he was also apparently unwilling to accept a guilty plea to avoid a possible death sentence. 14 This court must presume that Bryan was competent to rationally assist defense co unsel at trial, as he was adjudicated competent at the retrospective competen cy hearing. See Bryan III, 276 F.3d at 1169-72. “The reasonableness of counse l’s actions may be determined or substantially influenced by the defen dant’s own statements or actions. Counsel’s actions are usually based, quit e properly, on informed-24-

strategic choices made by the defendant and on info rmation supplied by the defendant.” Strickland, 466 U.S. at 691; see also Romano , 239 F.3d at 1181 (collecting cases for this proposition). “Although trial counsel has an independent duty to investigate and make a case in [defense], counsel also has to be responsive to the wishes of his client.” Romano , 239 F.3d at 1181; see also Wallace v. Ward, 191 F.3d 1235, 1247-48 (10th Cir. 1999) (concludi ng counsel’s decision to acquiesce to petitioner’s wishes that attorney not present any mitigating evidence during penalty phase was not de ficient performance). Additionally, the prosecution’s case, although stro ng, was almost entirely circumstantial. See Smith v. Gibson , 197 F.3d 454, 461-62 (10th Cir. 1999) (holding defense counsel’s innocence-based defense was reasonable strategy in light of circumstantial nature of prosecution’s cas e). There was evidence admitted at trial indicating that Bryan’s physical condition had so deteriorated at the time of the murder, due to his diabetes, that h e was physically incapable of carrying out this crime. Accordingly, based on the record before this court, it appears that Freeman had two options during the guilt phase of the trial . He could put the prosecution to its burden of proof, as he was specifically inst ructed to do by Bryan. Or, alternatively, he could present a non-viable insani ty defense, as foundation for a mitigation case during the penalty phase, the very strategy that led to Bryan’s15 As noted above, Bryan replaced Munkres four days af ter Bryan’s first competency trial because of “philosophical differen ces in how this case should proceed in my best and most aggressive defense to t he charges leveled against me.” See supraSection II.B., at 7. -25- termination of Munkres 15 and Hess. Freeman’s decision to follow the former course—after meeting with the medical experts, revi ewing all of the additional medical evidence, consulting with Bryan on numerous occasions, and noting the circumstantial nature of the prosecution’s case and the evidence of Bryan’s deteriorated health—is not objectively unreasonable

. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough inves tigation of law and facts relevant to plausible options are virtually unchall engeable.”). 2. Failure to present mental health evidence during the penalty phase In his supplemental brief before the en banc court, Bryan argues that Freeman provided objectively unreasonable represent ation during the penalty phase of the trial through ignorance of the law and failure to act as a knowledgeable guide and advisor. In particular, Bryan asserts that Freeman did not understand the importance of thoroughly investi gating and presenting mitigating evidence as demonstrated by his view that evidence of mental illness short of insanity was not relevant during the penal ty phase. He further asserts that in light of this failure, Freeman “failed adeq uately to advise Mr. Bryan regarding the mitigating evidence which was availab le and its potential benefits.”16 Freeman testified at Bryan’s retrospective competen cy hearing that he

spent between 1200 and 1500 hours working on Bryan’ s case and that “the bulk of that would have been with Mr. Bryan.” -26- This court finds Bryan’s arguments unconvincing on several levels. First, Freeman’s testimony at the federal evidentiary hear ing relied upon by Bryan in support of his claim that Freeman did not understan d the relevance of Bryan’s mental health evidence is presented out of context and is clearly insufficient to overcome the strong presumption that Freeman “rende red adequate assistance and made all significant decisions in the exercise of r easonable professional judgment.” Strickland, 466 U.S. at 690. Second, Hess clearly testified that he discussed with Bryan his preferred strategy of util izing mental health evidence during both the guilt and penalty phases of Bryan’s trial, with a focus on the penalty phase and preventing a sentence of death, and that Bryan had vigorously rejected the use of mental health evidence and term inated him. Accordingly, Bryan was certainly apprised of the benefits of usi ng mental health evidence in mitigation at the penalty phase and rejected that s trategy. Freeman was well aware of this history, having spent an extensive am ount of time with Bryan 16 and having met with Hess to discuss the case and the av ailable mental health evidence. Finally, the only testimony adduced at t he federal evidentiary hearing on the question demonstrates that the use of mental health evidence during the penalty phase would not have been effective followi ng a guilt phase defense of17 Cf. Provenzano v. Singletary , 148 F.3d 1327, 1330 (11th Cir. 1998)

(“Inquiries into strategic or tactical decisions ch allenged as ineffective assistance of counsel involve both a factual and a legal compo nent. The question of whether an attorney’s actions were actually the pro duct of a tactical or strategic decision is an issue of fact . . . . By contrast, the question of whether the strategic or tactical decision is reasonable enough to fall within the wide range of professional competence is an issue of law not one of fact . . . .”). -27- actual innocence. See infran.22. Accordingly, Freeman’s decision not to employ medical evidence, viewed from “his perspecti ve at the time” of the trial, is not objectively unreasonable. Strickland, 466 U.S. at 689. Relying on limited portions of Freeman’s testimony at the evidentiary hearing held by the district court, Bryan argues th at Freeman did not understand the potential usefulness of mental health evidence during the penalty phase, instead thinking that such evidence was irrelevant unless it demonstrated insanity or lack of competence. A review of Freeman’s state ments in context, however, confirms the district court’s conclusion that “[t]r ial counsel’s decision not to present evidence of Petitioner’s organic brain synd rome and mental illness [at the penalty phase] was clearly a strategic one.” 17 For instance, Bryan notes at the evidentiary hearin g, Freeman responded affirmatively to the following cross-examination qu estion: “So you saw no use for the experts’ mental testimony, except to prove either insanity or incompetence, right?” When read in context, howeve r, it is clear that Freeman is18 Freeman testified during cross-examination as follo ws: Counsel: Now, Leroy . . . could have had public def enders put on the organic brain damage evidence and the mental health evidence at no cost to Leroy or to the family, righ t? Freeman: That’s right.

. . . . Counsel: And your strategy was to try to create a r easonable doubt by basically attacking the testimony and the credibility of the State’s witnesses? Freeman: Yes, sir.

. . . . Counsel: And you resolved to create that reasonable doubt without using any of the mental health experts? Freeman: Yes, sir.

. . . . Counsel: Okay. And you allowed the mental health w itnesses to stay on the witness list that you finally went t o trial with, right? Freeman: Yes, sir. Counsel: And you did that in the hopes that maybe t hey would come up with something where they could say Leroy w as insane or he was incompetent, right? Freeman: That was a part of it. The other part was that I didn’t want to cut my options and I didn’t want the district attorney to know that I might not raise that defense, becaus e I wanted them to be concerned about other things that I could create for them to be concerned with. Counsel: So you saw no use for the experts’ mental testimony, except to prove either insanity or incompetence, ri ght? Freeman: That’s right. -28- referring only to the guilt stage of the trial. 18 Furthermore, Bryan simply misreads the transcript in asserting Freeman testif ied that he thought the testimony of the medical experts “would not have be en relevant at all.” Instead, when read in context, Freeman was indicating that i t was the opinion of Bryan’s parents that was irrelevant to his determination not to mo unt an insanity defense19 Freeman testified on cross-examination as follows: Counsel: Now, you [indicated] on direct . . . that it was in the final preparation for the trial that Leroy’s parent s first told you they didn’t think he was insane? Freeman: It was at some time during the preparation , closer to trial time than closer to the time I was hired. . .

. Counsel: Would I be correct in saying that Leroy’s parents vociferously and adamantly denied there was anythin g wrong with Leroy? Freeman: Yes, they did. You’d be correct in saying that. Counsel: And you were guided by that judgment rathe r than the judgment of the doctors, weren’t you? Freeman: No. No. No matter what, they stated—the do ctors had said that Mr. Bryan was neither incompetent to stand trial or was not insane at the time and could form the intent an d so forth. What they said would not have been relevant at all

. Counsel: Okay. And if any mental health expert was not going to say that he was legally insane or he was l egally incompetent, he wasn’t going to be of any benefit t o you, right? Freeman: That was my feeling. Counsel: All right. There was no question in your mind, though, that Leroy’s parents thought he was not men tally ill? The Court: He’s made that clear.

20 Freeman testified as follows in this regard: (continued...) -29- during the guilt phase of the trial, not the opinions of the medical experts

. 19 Nor can it be asserted that Freeman thought that he was ethically prohibited from presenting mental health evidence during the penalty phase of the trial. Instead, taken in context, Freeman’s testimony reflects the fact that he had no medical evidence supporting a guilt-phase insanity defense and that he was fearful that any testimony by Dr. Murphy during the second stage would do more harm than good. 2020 (...continued) Counsel: Now, what arrangements did you make with D r. Murphy regarding his testimony in the second stage of the trial? Freeman: I arranged with him to come to Elk City th e evening before we anticipated calling him if we were going to call him. . . . And then that evening, though, after having evaluat ed the evidence that was presented by the State in the second stage , and as I recollect we had put on some of our evidence, I determined th at in putting him on with the conclusion that he was going to giv e the State, that although he would say that there were brain abnorma lities in Mr. Bryan’s brain, that his bottom line, his conclusion s were that he had the ability to form intent, that he knew what he wa s doing and he knew the consequences of his acts. And I was fearful that if I did that, that would ju st more nearly accentuate the position of the State, that he was p rone to be and could be a danger to society and would probably hurt my case more than it would help it. So I elected not to call hi m and I called him that evening and told him that he could go back hom e.

. . . . Counsel: In your own words, please explain your sec ond-stage trial strategy in this case. Freeman: We had taken the position throughout the t rial, by reason of the fact that I could not demonstrate by medical testimony or evidence that Mr. Bryan was insane, he had alrea dy been determined competent on, I believe, either two or t hree occasions, . . . that if I raised that as a defense and put o n that evidence . . . I started a process and I couldn’t get to where I wanted to go ethically and honestly because they were not going to say tha t he was insane

. If I tried to do that, then I compromised Mr. Bryan ’s position in the trial of the case and elected to make the St ate prove and try—beyond a reasonable doubt and try to create a s ufficient doubt that the jury would believe that he had not committ ed the offense with which he was charged. In the second stage , then, as I said, Dr. Smith was out. He hadn’t been considered for some time because of what he said. I had visited on either two or three occasions with Dr. M urphy, and he had told me, you know, that he found brain abnormalitie s, but that the (continued...) -30-20 (...continued)

bottom line was that he could form the intent, thathe knew the difference in right and wrong, and that he knew the consequences of his acts. And as I say, in the second stage , I felt that I would compromise myself if I tried to get into that or co mpromise Mr. Bryan and myself and I was fearful that his testimo ny would simply support the theory and the evidence of the State.

21 Hess admitted the truth of this proposition under c ross-examination at the evidentiary hearing:

Counsel: Regarding mitigation evidence, and particu larly evidence of a psychological problem with the defend ant, would you agree that that sometimes can be a double-edged swo rd in a capital case? Hess: Very much so. Counsel: And that often a jury might accept evidenc e of psychological or emotional problems as evidence of aggravation? Hess: Yes, sir. I’ve had that happen in several ca ses. -31- Accordingly, when viewed as a whole, the testimony at the evidentiary hearing simply does not support Bryan’s assertion t hat Freeman suffered under a misapprehension as to the propriety of adducing men tal health evidence short of an insanity diagnosis during the penalty phase of t he trial. Instead, the testimony set out above demonstrates a concern with two consi derations. First, Freeman was concerned that testimony by either Dr. Smith orDr. Murphy might play into the prosecution’s case that Bryan was a continuing threat to society. See Cannon v. Gibson , 259 F.3d 1253, 1277-28 (10th Cir. 2001) (noting t hat mental health evidence like that at issue here has the possibility of being a “two-edged sword”). 21 Second, Freeman was concerned that an about-face during the penalty22 Bryan’s legal expert witness, Tim Wilson, testifiedduring the evidentiary

hearing that this was an important consideration:

Counsel: You mentioned that sometimes the second st age investigation ends up being used in the first stage . Why does that happen? Wilson: Well, the kiss of death in death penalty li tigation would be to have an inconsistent defense to—pardon the expression “kiss of death,” but to run a denial—typically a de nial defense in first stage and then in second stage suddenly turn around and introduce remorse and things like that are inconsis tent and simply don’t work. And the theory is that both stages mus t dovetail together. You should try to front-load as much of your mitigation as possible in an effort to save your client’s life.

23 See also Bullock v. Carver , 297 F.3d 1036, 1047, 1051 (10th Cir. 2002) (noting that although the ultimate question is always whether counsel’s performance fell below an objective standard of rea sonableness, “where it is shown that a challenged action was, in fact, an ade quately informed strategic choice, we heighten our presumption of objective re asonableness and presume that the attorney’s decision is nearly unchallengeable”). -32- phase might compromise Bryan in the eyes of the jur ors. 22 Bryan has simply not pointed to any evidence in the record sufficient to overcome the “strong presumption” that Freeman’s decision not to presentmental health evidence during the penalty phase of the trial was a strateg ic decision. Strickland, 466
U.S. at 689. 23 Having determined that Freeman’s decision not to pr esent mental health evidence during the penalty phase was strategic, th is court moves on to the question whether that strategic decision was reason able when viewed from Freeman’s perspective at the time of the trial. See id. at 690. Perhaps most importantly, Bryan did not want Freeman to present any psychiatric evidence,24 As noted above, Bryan’s legal expert, Wilson, concu rred with Hess’

assessment that to be effective mitigation evidence , the mental health evidence had to be incorporated into the guilt phase of the trial. See supran.22. -33- was adamant about pursuing an innocence defense dur ing the guilt phase of his trial, and had apparently refused to even consider a guilty plea in exchange for a life sentence. See , e.g. , Romano , 239 F.3d at 1181; Smith v. Massey , 235 F.3d 1259, 1278 (10th Cir. 2000); Wallace , 191 F.3d at 1247-48. This court must presume that Bryan was competent to make that deter mination. See Bryan III, 276 F.3d at 1169-72. Furthermore, the record revea ls that Hess specifically discussed with Bryan his proposed strategy of utili zing mental health evidence during the first stage of the trial as a foundation for a strong mitigation case during the penalty phase of the trial, asserting th at this was the only viable strategy to save Bryan’s life. 24 In response, Bryan terminated Hess and hired Freeman. Freeman, well aware of this history afterhaving met with Hess to discuss the case, and well aware that no medical expert would support a guiltphase insanity defense, complied with Bryan’s infor med strategic choice and put the government to its proof at trial. It is worth emphasizing again what was stated above : “Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defend ant.” Strickland, 466 U.S. at 691. Although this strategy limited Bryan’s option s during the penalty phase, it25 The dissent relies on the Supreme Court’s recent de cision in Wiggins v.

Smith , 123 S. Ct. 2527 (2003), to support its assertion that Freeman’s performance during the penalty phase was ineffectiv e because Freeman did not present evidence of Bryan’s mental illness. In Wiggins , however, the basis of the petitioner’s claim was that his counsel’s failure t o present potential mitigation evidence flowed from the failure to conduct an adeq uate investigation. See id. at 2535 (“In this case, as in Strickland, petitioner’s claim stems from counsel’s decision to limit the scope of their investigation into potential mitigation evidence.”). The Court began its analysis of petit ioner’s claim by noting as follows: “[S]trategic choices made after thorough i nvestigation of law and facts relevant to plausible options are virtually unchall engeable; and stratgic choices made after less than complete investigation are rea sonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 2535 (quotation omitted). Because petitioner’s counsel had conducted a plainly inadequate investigation, and because copio us and powerful mitigating evidence would have been discovered if an adequate investigation would have been conducted, the court concluded that counsel’s failure to present mitigation evidence during the penalty phase was not insulated from review as a strategic decision and was, in fact, unreasonable. Id. at 2541-42. As set out at length above, there is no question th at Freeman was fully aware of Bryan’s history of mental illness. Well aware of that history, and its failure to provide a defense at the guilt stage of the trial, Freeman complied with (continued...) -34- was not objectively unreasonable for Freeman to uti lize an innocence defense during the guilt phase for those reasons set out ab ove. Furthermore, in light of the testimony of Hess, Wilson, and Freeman regardin g the need for consistency between guilt and penalty phase presentations, and the possibility that Dr. Murphy’s testimony during the second stage could have supported the prosecution’s argument that Bryan constituted a con tinuing threat to society, it was not unreasonable for Freeman to utilize a mercy approach during the penalty phase. 25 Bryan has simply not overcome the strong presumpt ion set out in25 (...continued)

his competent client’s wishes to put the governmentto its burden of proof at the guilt stage of the trial. Aware of the serious pro blems associated with presenting inconsistent theories during the guilt and penalty phases, concerned that Dr. Murphy’s testimony might do more harm than good dur ing the penalty phase, and conscious of his client’s consistently expressed re fusal to rely on mental health evidence, Freeman made a strategic choice to seek m ercy during the penalty phase. This strategic choice is “virtually unchall engeable.” Id. at 2535. Wiggins simply does not speak at all to the circumstances o f this case.

26 Bryan seems to assert that, even independent of the question of the use of medical evidence during the penalty phase, Freeman’ s presentation was deficient. He does not, however, present a Strickland analysis of anything other than the failure to utilize the medical evidence. According ly, this court does not consider the matter further. See Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 679 (10th Cir. 1998) (holding that “[a]rguments inadequately briefed in the opening brief are waived”). -35- Strickland

that Freeman provided objectively reasonable assis tance during the penalty phase of the trial. 26

IV. CONCLUSION This court cannot say, under the facts set out abov e, that Freeman’s strategic choice not to present mental health evide nce during Bryan’s trial was objectively unreasonable. “There are countless way s to provide effective assistance in any given case.” Strickland, 466 U.S. at 689; see also Nix v. Whiteside , 475 U.S. 157, 165 (1986). We are mindful that itis “all too easy for a court, examining counsel’s defense after it has pro ved unsuccessful, to conclude that a particular act or omission of counsel was un reasonable.” Strickland, 466-36-

U.S. at 689. Thus, “in considering claims of ineff ective assistance of counsel, we address not what is prudent or [even] appropriate, but only what is constitutionally compelled.” Burger v. Kemp , 483 U.S. 776, 794 (1987) (quotation omitted). In this case, Bryan has faile d to establish that “in light of all the circumstances, [counsel’s] identified acts or o missions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.HENRY, J., concurring in part and dissenting in par t; Judges SEYMOUR,

EBEL, and LUCERO, join: RE: 00-6090, Bryan v. Mullin

Robert Leroy Bryan is a delusional, severely diabet ic victim of organic brain damage. He had been charged with solicitatio n of murder several years previous to this crime, but was found incompetent and subsequently institutionalized. Unfortunately for many, after i ntensive treatment, he was released. Amazingly, he was not monitored. Mr. Bryan’s illness manifested itself again in his deluded and tragic actions thatled to the case at hand. Mr. Bryan repeated the most significant portions of his earlier attempted crime, using the same location to conceal the body that he had r evealed to the police in the solicitation crime and the same tactic of seeking t o use unsigned and forged checks to repay his “business losses.” He “repeate d” his previous crime, but this time, he killed his Aunt Inabel, whom he believed ( and this is not contested) owed him several million dollars from cheating him out of fictional monies owed for fictional inventions. Despite the compelling evidence in the record regar ding Mr. Bryan’s history of mental illness, and despite the fact that the sentencing jury never heard that evidence, the majority concludes that Mr. Bryan did not receive ineffective assistance of counsel at sentencing. The majority concludes that Mr. Freeman was fully aware of the potential use of mental heal th testimony at sentencing, but-2-

that his client forbade the use of this compelling testimony in the sentencing phase. The majority also notes that counsel feared adopting an approach in the sentencing phase that might appear inconsistent wit h the guilt phase strategy. And, the majority concludes that counsel was concer ned that the mental health testimony might be viewed to support future dangero usness. This reasoning is untenable. Mr. Bryan’s counsel p rovided the most ineffective defense I have ever seen, amounting to a concession of guilt and relating none of the reams of compelling mitigating evidence. First, the record shows that Mr. Bryan’s counsel clearly did not even understand that the mental health evidence might have been used in an attempt to reduce Mr. Bryan’s culpability at sentencing. Next, case law and comm on sense make clear that counsel’s reliance on directions from a deeply dist urbed client such as Mr. Bryan cannot insulate him from his duty to present mitigating evidence. Third, counsel did not inform his client about the purpose of the sentencing stage and what role the mental health history might have played, thus, further negating any reliance on Mr. Bryan’s wishes. Finally, counsel’s performance at Mr. Bryan’s sentencing cannot be insulated by conferring upon it an ex poststrategy that did not exist. Similarly, we cannot insulate an unreasonable tacti c not to present mitigating evidence by labeling it a two-edged sword. Mr. Bry an’s lawyer was clearly ineffective as a matter of law.-3- I. BACKGROUND Mr. Bryan had three defense attorneys (two of them court-appointed) before his parents, seeking to help him, fired his public defender and mortgaged their home to hire Mr. Freeman. Mr. Freeman, in wh at was his third capital case, charged the elderly Bryans the sum of $50,000 for h is services. Had the Bryans not tried to help, paradoxically, I believe that Le roy Bryan would not be facing execution today. Mr. Bryan sincerely relayed the same intricate plot s and stories to all four of his attorneys, explaining the circumstances regarding the murder in elaborate and unwavering detail, which apparently had no fact ual basis at all. All four attorneys agreed, however, that Mr. Bryan adamantly and genuinely believed this story to be true. In addition, each attorney expla ined the difficulties he had in attempting to communicate with Mr. Bryan, and expla ined that no facet of Mr. Bryan’s outrageous stories could be confirmed. At times he appeared delusional, would ramble, appeared agitated, and would exhibit apparent paranoia through bizarre discourses concerning attorneys, bankers, j ailers, and even a judge, all of whom, Mr. Bryan believe, were out to get him. See e.g. Retro. Comp. Hr’g, vol. II, at 285, 301 (Mr. Bryan exhibited “what to me wa s paranoid delusional talk, and then that coupled with the fact that the inform ation was all unverifiable or incorrect.” “He simply was not able to separate re ality from fiction.”) (testim. of1 The SPECT scan, like all the evidence proving org anic brain damage,

was never presented to the jury. -4- Wesley Gibson, former counsel); id. vol. I, at 229 (“[A]s for a rational communication effectively assisting me, I didn’t se e it.”) (testim. of Steven B. Hess, previous counsel). All the three previous counsel also indicated that they did not believe Mr. Bryan was able to assist in his defense. Two medic al experts, well-versed in Mr. Bryan’s medical history and also familiar with his delusions and history of mental illness, also testified that Mr. Bryan was unable t o assist in his defense, because he suffered from an irreversible brain pathology, c hronic paranoid schizophrenia. There was evidence also of organic delusional disor der, evidenced by a brain
SPECT scan. 1 Only one “expert” examined Mr. Bryan for the State. The expert’s cursory one-hour evaluation, which preceded the trial by mo re than one year, produced no evidence of a mental illness at the time of the exam. The expert testified that he did not review the complete discharge summary from Mr. Bryan’s earlier commitment to Eastern State Hospital, which reveale d that Mr. Bryan suffered from organic delusional disorder. This expert, who was conducting his third or perhaps his fourth such evaluation at the time, ack nowledged that Mr. Bryan’s delusional disorder might be so well integrated that he would not have been able to discern it during his evaluation. This expert n ever spoke with Mr. Bryan on-5-

any topic relating to his delusions, which were onl y apparent when the conversation turned to a topic related to his paran oia, or his fictional schemes. This expert was, incredibly, unfamiliar with Navane , the anti-psychotic agent and “most important drug” that Mr. Bryan was prescribed while at Eastern State. See Retro. Comp. Hr’g, vol. I., at 138 (testim. of Dr. Philip J. Murphy). Thus, he was familiar with neither Mr. Bryan’s record of treatme nt nor his treatment. Although the State initially offered to sentence hi m to life without parole, as the majority points out, Mr. Bryan stands today on the brink of execution, because his final lawyer’s “strategy” was to hide f rom the jury any suggestion of the above evidence at either the guilt or the sente ncing phases. Influenced perhaps by Mr. Freeman’s underwriters–Mr. Bryan’s p arents–and also by Mr. Bryan’s insistence upon his mental clarity, Mr. Fre eman, who admits that he did little preparation for the crucial sentencing phase , supposedly adopted a “residual doubt” strategy, after that terminological haven wa s offered to him by the State during postconviction proceedings. His “residual d oubt” strategy entailed admitting in his closing argument that Bryan had “k illed” his aunt, and that this act was “vile.” Despite counsel’s purported familiarity with the above history, and his admission that the stories relayed in all sincerityby Mr. Bryan were unrealistic and “crazy,” and despite the remaining reams of doc umentation supporting Mr.2 Curiously, we have infrequently deemed it necessary to assess the

propriety of such questionable hearings. The recor d reveals that the prospective jurors were told about the crime, and about Mr. Bry an’s conviction and that they were simply revisiting Mr. Bryan’s competency at th e time of the crime. I regret that out of the pool of twelve prospective jurors, several knew Mr. Bryan personally, having lived close by. One atten ded church with Mr. Bryan, and knew him through church events. Another was a former student from Mr. Bryan’s science class. At least two had read aboutthe crime, had followed the trial in the newspapers, and had formed opinions ab out Mr. Bryan’s guilt. Retro. Comp. Hr’g, vol. I, at 20 (“Yeah. I believe he don e it.”). The final six chosen to serve included Mr. Bryan’s former student, and the juror who testified that she believed Mr Bryan had committed the crime. Mr Bryan was also easily identifiable by witnesses and jurors alike, because he wore the orange jumpsuit of a convicted inmate. Although the makeup of the jury has not been contes ted and is not contested by Mr. Bryan, I am even more inclined to disfavor reliance on such retrospective hearings when the jurors are informed of the conviction and his (continued...) -6- Bryan’s organic brain disorder, Mr. Freeman apparen tly thought the better tack was to pretend Mr. Bryan was a perfectly normal def endant who was in a bad spot. Thus, Mr. Freeman presented none of the information discussed above to the jury. So, found guilty and given no coherent defense in t he sentencing phase, Mr. Bryan is sentenced to die. His competency call ed into question again, a constitutionally “disfavored” new competency hearin g was ordered, where the jury was fully informed of the nature of his crime, the persons affected thereby, his conviction, and his sentence–essentially sugges ting that he might be released if not found competent. Not surprisingly, the jury found Mr. Bryan, clad throughout the proceedings in his prison issue oran ge jumpsuit, competent. 22 (...continued)

status on death row facing execution before and whi le they pondered his competency, and while staring at his convict’s oran ge jumpsuit. I would hope that in holding a retrospective competency hearing, a judge, and the OCCA, would “foresee the possibility of a jury becoming s o incensed or angered about the circumstances of a crime that the decision regarding [competence] is unduly influenced. The . . . hearing . . . would seek to forestall that possibility and assist” the court. Murphy v. State, 54 P.3d 556, 569 n.24 (Okla. Crim. App. 2002) (outlining aspirations for “an Atkins hearing ”). Similarly, the hearing should “not to be a mere rubber-stamping of the jury’s factual determinations, but an independent review of the evidence of [competenc y] by an objective, neutral [jury], uninfluenced by the nature and circumstance s of the crime, the persons affected thereby, or any outside influence.” Id. at n.25. Clearly, Mr. Bryan benefitted from no such insulation of the jury at h is retrospective competency hearing.

-7- The Supreme Court recently reminded us that “retribution and deterrence of capital crimes by p rospective offenders [are] the social purposes served by the death penal ty. Unless the imposition of the death penalty on a mentally retar ded person “measurably contributes to one or both of these goa ls, it is nothing more than the purposeless and needless imposition o f pain and suffering, and hence an unconstitutional punishment .” Atkins v. Virginia , 536 U.S. 304, 319 (2002) (quoting Enmund v. Florida , 458 U.S. 782, 798 (1982)). As discussed in detail belo w, the imposition by the State of Oklahoma of the death penalty against Mr. Bryan contributes nothing to either of these two legitimate goals, and also is not cons titutional.-8- II. OVERVIEW Before turning to the disagreements I have with the majority’s approach, I must compliment the majority’s studiously fair reci tation of the case’s background. And, I concur with the majority’s conc lusion in Part III.A that Mr. Bryan was entitled to an evidentiary hearing before the district court, and that pursuant to Miller , we review de novo whether counsel’s performance w as legally deficient and whether the deficiencies prej udiced the defendant. As to the majority’s conclusion that Mr. Freeman di d not provide ineffective assistance of counsel at the guilt phas e, as stated in my original panel dissent, I believe Mr. Freeman’s performance was in effective for failing to introduce evidence of Mr. Bryan’s mental illness. However, as I did previously, I will focus on Mr. Bryan’s strongest argument, that is, whether Mr. Freeman’s performance at the sentencing stage was similarly i neffective. As stated in my original panel dissent, even under AEDPA’s rigid and deferential standard of review, I believe that the OCCA unreasonably applied federal law when it concluded that Mr. Freeman’s pe rformance was effective. See Bryan v. Gibson , 276 F.3d 1163, 1171-85 (10th Cir. 2001) (Henry, J ., dissenting). However, given our de novo review of Mr. Freeman’s performance, this conclusion is that much easier to reach. Mr F reeman’s performance during the sentencing phase fell outside the range of prof essionally competent assistance-9-

and constituted ineffective assistance of counsel f or failure to present testimony regarding Mr. Bryan’s history of mental illness.

A. The Majority’s Holdings Regarding Counsel’s Perfo rmance at Sentencing
The majority summarizes Mr. Bryan’s ineffective ass istance claim at sentencing as twofold: first, that Mr. Freeman did not understand that he did not have to establish incompetence to present mental he alth evidence in mitigation; and second, that Mr. Freeman failed to advise and i nform Mr. Bryan of the use and potential benefit of the mental health evidence . As to Mr. Freeman’s ignorance, the majority responds that the evidentiary hearing testimony establishes that Mr. Freeman was well-versed in the use of mental health history at the sentencing phase. The majority also relies on Mr. Freeman’s hesitance to use the information because it might provide support for the continuing threat to society aggravator. And, in response to the challe nge to Mr. Freeman’s failure to explain the import and significance of the sentenci ng phase to his client, the majority relies on Mr. Bryan’s perceived instructio ns not to present an insanity defense and defends Mr. Freeman’s strategy at sente ncing.

B. Summary of Why the Majority Opinion Fails-10-

Upon a very close examination of these unique facts , the faulty premises of these arguments emerge. First, Mr. Freeman did notfully appreciate the nature of the testimony offered by the medical experts reg arding his client’s condition. The testimony presented at the evidentiary hearing clearly establishes that Mr. Freeman felt compelled to present mental health tes timony only if it would be “useful,” that is, to establish incompetence. He d id not recognize that testimony of organic brain damage, delusions, and that his cl ient was “crazy” would be valuable mitigation evidence. Second, a client’s wishes or direction as to the ap proach at sentencing is not unassailable and is by no means binding, even i n a case where there is little or no indication of mental distress. Here, society ’s real interest is in securing a just result that accurately assesses the culpability of those it prosecutes. Additionally, there is evidence that Mr. Bryan’s parents influenced the decision not to present any of this compelling evidence. Third, Mr. Freeman did not adequately inform his cl ient about the purpose of the sentencing phase or the nature of the eviden ce that might be presented. The majority errs by relying on Mr. Freeman’s reliance on conversations his client may have had with previous counsel as to the purpose of, and strategy behind, the sentencing phase.-11-

Fourth, the majority mischaracterizes Mr. Freeman’s “strategic decision” to adopt a “residual doubt” strategy because of the “ need for consistency” between the guilt and sentencing phases. Unquestionably, c onsistency between the phases is ideal, but Mr. Freeman’s purported strategy did nothing to preserve such consistency – his sentencing strategy squarely cont radicted his guilt phase approach. The majority implicitly admits as much r ecognizing that Mr. Freeman’s residual doubt approach was at best weak, and by characterizing it as a “mercy” approach. The majority also credits Mr. Fr eeman’s concerns about the mental health evidence serving to support the conti nuing threat aggravator, without consideration of the particular mitigating evidence present before us. As a whole, Mr. Freeman’s sentencing stage performance was completely deficient–resulting in a residual doubt strategy th at admitted the crime–and hence resulted in prejudice to his client.

III. DISCUSSION A. Deficiency of Counsel’s Performance In reviewing Mr. Freeman’s performance, we bear in mind that “‘[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.’” Mitchell v. Gibson, 262 F.3d 1036, 1063 (10th Cir. 2001) (quoting Kyles v. Whitley, 514 U.S. 419, 422 (1995) (internal quotation-12-

marks omitted)). The Supreme Court has held that i t is critical to the reliability of a capital sentencing proceeding that the jury re nder an individualized decision. See Gregg v. Georgia , 428 U.S. 153, 206 (1976) (in upholding the Georgi a capital sentencing scheme at issue, emphasizing that “[t]he new Georgia sentencing procedures . . . focus the jury’s attent ion on the particularized nature of the crime and the particularized characteristics of the indiv idual defendant ”) (emphasis added). “The jury in this case was effec tively walled off from key mitigating evidence that went to the particularized characteristics of the individual defendant.” Id. at 206. No judge or jury has ever weighed Mr. Bryan’s “particularized characteristics” in decidin g whether the death penalty would be a constitutionally appropriate punishment. “The sentencing stage is the most critical phase of a death penalty case. Any competent counsel knows the importance of thoro ughly investigating and presenting mitigating evidence.” Romano v. Gibson , 239 F.3d 1156, 1180 (10th Cir. 2001). “[T]he sentencer may not refuse to con sider or be precluded from considering ‘any relevant mitigating evidence.’” Skipper v. South Carolina , 476 U.S. 1, 4 (1986) (quoting Eddings v. Oklahoma , 455 U.S. 104, 114 (1982)). Accordingly, “the sentence imposed at the penalty s tage should reflect a reasoned moralresponse to the defendant’s background, character, and crime.” California
v. Brown , 479 U.S. 538, 545 (1987) (emphasis in original) ( O’Connor, J.,-13-

concurring); see also Mayes v. Gibson , 210 F.3d 1284, 1288 (10th Cir. 2000) (noting that mitigation evidence “affords an opport unity to humanize and explain– to individualize a defendant outside the c onstraints of the normal rules of evidence”). “Consideration of such evidence is a ‘constitutionally indispensable part of the process of inflicting the penalty of death.’” Brown , 479 U.S. at 541 (quoting Woodson v. North Carolina , 428 U.S. 280, 304 (1976) (plurality)). Thus, a criminal defendant who is charged with a capital offense has the right to present virtually any evidence in mitigati on at the penalty phase. See Hitchcock v. Dugger , 481 U.S. 393, 399 (1987). “We are therefore comp elled to insure that the sentencing jury makes an individual ized decision while equipped with the ‘fullest information possible concerning t he defendant's life and characteristics,’ and must scrutinize carefully any decision by counsel which deprives a capital defendant of all mitigation evid ence.” Mayes, 210 F.3d at 1288 (quoting Lockett v. Ohio , 438 U.S. 586, 603 (1978)). When examining counsel’s investigation and presentation of mitigat ion evidence, “the right to present mitigating evidence to the jury is constitu tionally protected,” Mayes , 210 F.3d at 1288, and, as the majority points out, thatthere is a corresponding “need to apply even closer scrutiny when reviewing attorn ey performance during the sentencing phase of a capital case.” Battenfield v. Gibson , 236 F.3d 1215, 1226-14-

(10th Cir. 2001) (quoting Cooks v. Ward, 165 F.3d 1283, 1294 (10th Cir. 1998)); see also Duckett v. Mullin , 306 F.3d 982, 997 (10th Cir. 2002) (same) (quotin g Battenfield

).

a. Counsel’s Ignorance of the Use of Mental Health Testimony at Sentencing The majority asserts that Mr. Freeman appreciated t he nature of the reports and conclusions offered by two psychiatrists, Drs. John R. Smith and Philip J. Murphy. Dr. Smith made the following conclusions r egarding Mr. Bryan’s mental state: [Mr. Bryan suffers from an] extensive paranoid delu sional system, fragmentation of thought, circumstantial thinking, and . . . diabetes. [The] delusional system and circumstantiality of th ought . . . affect his ability to assist his attorney in his own defense.

. . . . While he has an understanding of the charges agains t him, as many schizophrenic people do, this is no way modifi es their real belief in their delusional system and cannot be interprete d accurately by the court to mean that he is capable, as in a person wi thout a serious mental disorder, of participating in their own defense. Evid. Hr’g Ex. 1. Dr. Murphy reported that “Mr. Bryan suffers from a serious mental disorder which places into serious question his competence to stand trial, as well as his legal culpability in the crimes for which he is charged.” Evid. Hr’g Tr. at-15-

95. Finally, in language that Mr. Freeman should h ave clearly understood, both Drs. Smith and Murphy referred to Mr. Bryan as “cra zy.” Evid. Hr’g Tr. at 83; Retro. Comp. Hr’g, vol. I, at 135. In addition, Dr. E. William Allen, testified about the results of Mr. Bryan’s SPECT scan. The SPECT scan results independently v erified the preliminary tests performed by Drs. Murphy and Smith. The SPEC T scan enables one to detect areas of dead or severely damaged brain tiss ue. Dr. Allen concluded that Mr. Bryan suffered from multiple areas of brain dam age that raised serious concerns. He also noted that the brain deteriorati on was irreversible. As to what the SPECT scan indicated and would have shown had i t been presented, Dr. Murphy later testified that Mr. Bryan suffered from “organic delusional disorder,” meaning, in Dr. Murphy’s words, that Mr. Bryan is “crazy” and suffers from “paranoid,” “grandiose,” and “persecutory” thi nking. Retro. Comp. Hr’g vol. I, at 135. In response to such reports, Mr. Freeman stated that he understood both Drs. Smith and Murphy to have said that Mr. Bryan w as crazy, but that he was not legally insane. Mr. Freeman feared that becaus e Mr. Bryan had the ability to form intent, that any testimony regarding his menta l distress would indicate that Mr. Bryan was a danger to society.-16-

In response to the request to “please explain your second-stage trial strategy in this case,” Mr. Freeman responded: We had taken the position throughout the trial, by reason of the fact that I could not demonstrate by medical testimony o r evidence that Mr. Bryan was insane, he had already been determined co mpetent on, I believe, either two or three occasions, two juries in Beckham County and one other doctor, plus the doctor in Granite ha d determined that he was competent, that if I raised that as a defense and put on that evidence, No. 1, I started a process and I couldn’tget to where I wanted to go ethically and honestly because they we re not going to say he was insane. If I tried to do that, then I compromised Mr. Bryan ’s position in the trial of the case and elected to make the State pro ve and try – beyond a reasonable doubt and try to create a sufficient d oubt that the jury would believe that he had not committed the offense with which he was charged. In the second stage, then, as I said, Dr. Smith was out. He hadn’t been considered for some time because of what he said. I had visited on either two or three occasions with Dr. Murphy, and he had told me, you know, that he found brain abnormalities, but that t he bottom line was that he could form the intent, that he knew the dif ference in right and wrong, and that he knew the consequences of his act s. And as I say, in the second stage, I felt that I wo uld compromise myself if I tried to get into that or compromise Mr Bryan and myself and I was fearful that his testimony would simply support the theory of the State. Evid. Hr’g Tr. at 86-87. Besides underestimating D r. Murphy’s written report I quoted earlier, nowhere did Mr. Freeman apparently consider or recognize the preeminent purpose of sentencing–to create an indiv idualized history of Mr. Bryan in hopes that the jury might base its sentenc ing decision on the fullest information available. Nowhere did Mr. Freeman rec ognize that Mr. Bryan’s3 As to note 19 of the majority opinion, I think itis not completely clear

whether Mr. Freeman had shifted gears and was comme nting of the relevance of the parents’ statements rather than those of the me dical experts. In any event, under any reading of the evidentiary hearing testim ony, Mr. Freeman’s utter disregard of the nature of the medical experts’ tes timony is resoundingly clear.

4 Despite this, Mr. Freeman testified to the follow ing: Q: Up to this point, it has not occurred to you, ha s it, that if Leroy were organically brain damaged and mentally ill he might not be executed? Mr. Freeman: It occurs to me that if that were a cu rrent opinion based upon his current condition then your answer m ight be true. Q: But if that were true at the time of trial, the jury might not have given him the death penalty, right? Mr. Freeman: They might not have. Evid. Hr’g Tr. at 110. -17- organic delusional disorder might serve to humanize his client. Mr. Freeman determined that if the experts could not say Mr. Bryan was insane or incompetent at the trial stage, their testimony that he was del usional, “crazy,” and had substantial dead brain tissue was therefore exclude d because it was irrelevant. 3 Similarly, because no expert would say that Mr. Bry an was insane or incompetent, their testimony, he incredibly believe d, was rendered useless for any portion of the trial. 4 Additionally, and perhaps even more telling, Mr. Fr eeman never asked Dr. Allen about the importance of his findings. See Evid. Hr’g Tr. at 98. Mr.-18-

Freeman never appreciated the visual uses of the SP ECT scan. At the evidentiary hearing, both former counsel Mr. Hess and defense e xpert and assistant public defender Tim Wilson underscored the importance of t he SPECT scan. See e.g. Evid. Hr’g Tr. at 33 (“The major issue for mitigati on would have been the SPECT scan.”) (testim. of Steven B. Hess, previous counsel); id. at 58 (“[The SPECT scan] makes a great exhibit.”) (testim. of Ti m Wilson). And Mr. Freeman, whose understanding of the SPECT scan was limited, never intended to have Dr. Allen testify, which would have clearly an d independently verified the clinical results found by the psychiatrists. Mr. Bryan had no appreciation that psychiatric miti gating evidence not only can act in mitigation, it also could significantly blunt the force of the aggravating factors. “[T]here is a great difference between failing to present evidence sufficient to establish incompetency at tr ial and failing to pursue mental health mitigating evidence at all.” Hardwick v. Crosby, 320 F.3d 1127, 1164 (11th Cir. 2003) (quoting Blanco v. Singletary , 943 F.2d 1477, 1503 (11th Cir. 1991)). The majority ignores the possibility that “[o]ne can be competent to stand trial and yet suffer from mental health probl ems that the sentencing jury and judge should have had an opportunity to conside r.” Id. I cannot agree that Mr. Freeman’s approach to the sentencing phase, whi ch amounted to a denial of-19-

any of Mr. Bryan’s serious and evident mental disor ders, was justifiable or reasonable.

b. Mr. Bryan’s Wishes Regarding Mental Health Eviden ce Mr. Freeman attempts to defend his blueprint for th e sentencing phase by relying heavily upon his client’s wishes that he no t present evidence of mental health history. Despite the unrefuted evidence of Mr. Bryan’s longstanding delusions, the majority’s holding adopts Mr. Freeman’s argument, which contradicts case law from this and other circuits.

(i) Mr. Bryan’s desires are not sacrosanct “Most importantly,” asserts the majority, “[Mr.] Bryan did not want [Mr.] Freeman to present any psychiatric evidence.” Maj. Op. at 32. The majority thus supplies a shield for Mr. Freeman: his “competent” client told him not to present evidence of mental health. In light of Mr. Bryan’s long history of mental illness, it is difficult to characterize his decision as an informed strategic choice. “In every trial there is more at stake than just th e interests of the accused.” Mayberry v. Pennsylvania , 400 U.S. 455, 468 (1971) (Burger, C. J., concurri ng). “Mitigating evidence plays an overwhelmingly import ant role in the ‘just imposition of the death penalty. . . . As a practi cal matter, the defendant probably has little or no chance of avoiding the de ath sentence unless the defense-20-

counsel gives the jury something to counter both th e horror of the crime and the limited information the prosecution has introduced about the defendant.”
Romano , 239 F.3d at 1180 (internal quotation marks omitte d). A defendant’s desires not to present mitigating evi dence do not terminate counsel’s responsibilities during the sentencing ph ase of a death penalty trial: “The reason lawyers may not ‘blindly follow’ such c ommands is that although the decision whether to use such evidence is for the cl ient, the lawyer first must evaluate potential avenues and advise the client of those offering potential merit.” Blanco , 943 F.2d at 1502 (internal quotation marks omitte d). See id. at n.19 (“We note that a defendant’s decision concern ing the use of mitigating evidence is more an aspect of overall strategy than a decision as to which witnesses would provide the best legal support for a defense.”); see also State v. Hightower , 518 A.2d 482, 483 (N.J. Super. Ct. App. Div. 1986 ) (noting that despite competent defendant’s preference to simply appeal the guilt determination and forego defense at sentencing hearing, counsel s hould insist upon presenting any evidence of mitigating factors, because “[i]f t he jury did not hear the evidence allegedly in mitigation, it could have dif ficulty discharging its statutory, and indeed moral, duty” to weigh aggravating and mi tigating factors). Thus, although Mr. Bryan was deemed competent at th e constitutionally disfavored, and in this case highly suspect, retros pective competency hearing, see-21-

McGregor v. Gibson , 248 F.3d 946, 962 (10th Cir. 2001) (“Retrospectiv e competency hearings are generally disfavored.”) (in ternal quotation marks omitted), his opinion about whether or not to prese nt evidence of mental health history during the sentencing phase is assuredly no t sacrosanct. The attorney’s duty to society may demand that, in narrow sets of circumstances, counsel exercises her independent professional judgment. See Evid. Hr’g Tr. at 25 (“My obligation, as trial counsel, . . . is to present t he best defense, both in Stage 1 and Stage 2, I can with an eye toward saving my client no matter what my client’s desires are . . . . I consider the presentation of the insanity defense one of those issues that my co-counsel and I decided which at ti mes would conflict with our client’s desires.”) (testim. of Steven B. Hess, for mer counsel) (emphasis added); id. at 77 (“ I feel that if I have a client that’s insi sting innocence that, if he chose to, I would put him on the stand and let him testif y. . . . But the client has no choice about whether to present a mental health def ense. . . . I’ll have him testify he’s innocent, but I’ll present my mental health ev idence.”) (testim. of Tim Wilson). See also Hightower , 518 A.2d at 483 (reversing lower court conclusion that legally competent defendant’s wishes should pr evail).

(ii) Tenth Circuit precedent regarding waiver of mi tigation evidence Recently, in Battenfield v. Gibson , 236 F.3d 1215, the defendant, Mr. Battenfield, who was deemed competent and had no do cumented history of-22-

mental distress apart from chemical dependence, ins tructed his counsel notto present any evidence at the sentencing phase of the trial. The available mitigating evidence, as summarized by the court, in cluded: (a) evidence that Battenfield’s father and grandfat her were involved in moonshining, (b) Battenfield’s involvement in a ser ious car accident at age 18, during which he sustained a serious head in jury and after which he heavily used alcohol and drugs, (c) Battenfield’s family history of alcoholism and possible drug addiction, (d) mental health evidence, including evidence that Battenfield suffered from s ubstance addiction , (e) the underlying circumstances of Battenfield’s p revious conviction for assault and battery, which allegedly occurred w hile he was under the influence of drugs and alcohol and was an act o f self-defense, (f) evidence from family members and friends indicating that Battenfield was known for his compassion, gentleness, and lack of violence, even when provoked, and (g) testimony of prison personne l describing the security where Battenfield would be incarcerated if given a life sentence. Id. at 1226 (emphasis added). After Mr. Battenfield was found guilty, he instruct ed his counsel not to present any mitigating evidence in the second stage . His counsel advised him to proceed with the mitigating evidence, and the courtmade specific inquiries to Mr. Battenfield as to why he was opting not to pres ent any testimony for mitigation. The OCCA determined that Mr. Battenfiel d voluntarily waived his right to present any mitigating evidence. We noted in terms remarkably descriptive of this case that counsel: never explained the general meaning of mitigation e vidence to Battenfield or what specific mitigation evidence wa s available. [Battenfield’s counsel] acknowledged he never advised Battenfield that-23-

mitigation evidence might include evidence about Ba ttenfield’s substance abuse problems. At best, the evidence indicates that at some point during the trial proceedings, [Battenfield’s counsel] discussed with Battenfield his plan to present Battenfield’s parents as second-stage witnesses and his strategy to have Battenfield’s parents beg for Battenfield’s life. In an affidavit submitted in connection with his application for post-conviction relief, Battenf ield indicated that [his counsel] never explained to him “ the importance of mitigation or . . . what mitigation actually [wa]s. ” Battenfield Aff. ¶ 2. Id. at 1229 (emphasis added). This bolstered our conc lusion that, based on counsel’s failure to apprise his client of “what p articular mitigating evidence was available in his case,” Mr. Battenfield’s waive r was not knowing and voluntary. Id. at 1232. Judges Briscoe and Lucero thus held for the court that “counsel’s deficient performance culminated in Batt enfield waiving the right to present mitigating evidence.” Id. at 1230. Here, as indicated above, there is a serious questi on as to Mr. Freeman’s level of appreciation for the vast amount of available evidence for mitigation. Unlike in Battenfield, Mr. Freeman’s investigation was largely completedby his predecessors and Mr. Freeman needed only to connectthe dots. But unfortunately for Mr. Bryan, Mr. Freeman arrived atthe same spot as did Battenfield’s counsel: He was “was unaware at the t ime of trial of various mitigation strategies and accompanying pieces of ev idence that could have been presented during the mitigation phase by [mitigatio n witnesses]. Further, [counsel] was wholly unprepared to rebut the aggrav ating factors argued by the5 As we noted in Battenfield, 236 F.3d at 1233, within months of Mr.

Bryan’s trial, the OCCA wisely established guidelin es for courts to follow “when a defendant refuses to allow the presentation of mi tigating evidence in the sentencing stage.” Wallace v. State , 893 P.2d 504, 512 (Okla. Crim. App. 1995). The guidelines serve as benchmark for the trial cou rt’s procedures, and ideally, by trial counsel, when the record is replete with e vidence of an organic brain disorder. Those guidelines, intended to ensure that a defendant “has an understanding of his or her rights . . . in the sen tencing process, require a trial court to: ‘(1) inform the defendant of the right to present m itigating evidence, and what mitigating evidence is; (2) inquire both o f the defendant and his attorney (if not pro se) whether he or she unde rstands these rights; (3) inquire of the attorney if he or she has attemp ted to determine from the defendant whether any mitigating evidence exist s; (4) inquire what that mitigating evidence is (if the defendant has r efused to cooperate, the attorney must relate that to the court); (5) in quire of a defendant and make a determination on the record whether the defendant understands the importance of mitigating evidence i n a capital sentencing scheme, understands such evidence could be used to offset the aggravating circumstances proven by the prosecu tion in support of the death penalty, and the effect of failing to pre sent that evidence ; (6) after being assured the defendant understands these concepts, inquire of the defendant whether he or she desires to waive the right to present such mitigating evidence; and (7) make findings of fact regarding the defendant’s understanding and waiver of rights.’ Battenfield, 236 F.3d at 1233 (quoting Wallace 893 P.2d at 512-13) (emphasis added). These guidelines are “little more than common sense and should have been followed by the trial court.” Battenfield, 236 F.3d at 1233. They demonstrate that, independent of his client’s wishes, counsel h as the responsibility to evaluate mitigating evidence and inform the trial court. Si milarly, the Supreme Court has (continued...) -24- prosecution.” Id. at 1129. And, like counsel in Battenfield, Mr. Freeman’s deficient performance “rendered unreasonable his al leged penalty-phase strategy.” Id. 5 In addition, as noted below, Mr. Freeman’s failu re to advise5 (...continued)

recently reiterated that the ABA Standards for Crim inal Justice provide helpful benchmarks for “determining what is reasonable.” Wiggins v. Smith , No. 02-311, 2003 WL 21467222, at *9 (U.S. June 26, 2003) (citin g Strickland v. Washington , 466 U.S. 668, 688-89 (1984))

. The ABA Standards require counsel to inform the court of mitigating evidence. See A MERICAN B AR A SSOCIATION S TANDARDS FOR C RIMINAL J USTICE 4-4.1, commentary, at 183 (1993) (“The lawyer also has a substantial and important role to perform in raisin g mitigating factors both to the prosecutor initially and to the court at sentencing .”). -25- his client as to the nature, importance, and purpos e of the presentation of mitigation evidence, foreclosed any possibility that he might reconsider his position. See id. at 1230.

(iii) The Majority’s Misreading of Romano v. Gibson and Wallace v. Ward Despite our recent holding in Battenfield, the majority relies instead on two of our circuit’s cases in support of its conclu sion that Mr. Freeman had no choice but to heed the wishes of his client. Undou btedly, counsel’s strategy will be based in part by the defendant’s choices and on information supplied by the defendant. Thus, concludes the majority, Mr. Freem an’s second stage residual doubt strategy was one that was responsive to Mr. B ryan’s wishes. See Maj. Op.
at 32. (1) Romano v. Gibson
In Romano , the defendant challenged counsel’s effectiveness for failure to present mitigating evidence of abandonment and poss ible abuse when he was a toddler. In addition, he contended that he should have received a mental health-26-

examination. A previous report indicated that the defendant “did not suffer from any psychiatric disorders and his test results at t hat time appeared normal.” 239 F.3d at 1182. Before the sentencing stage, the def endant directed counsel not to have his parents and friends testify. Notwithstanding his client’s wishes, trial counsel disregarded his client’s instructions, and presented substantial mitigating testimony, including testimony from his mother and various friends. The defendanttestified and detailed his childhood, schooling, activities, military service, and his love of children. He described his childhood as “outstanding.” Id. at 1181. He also told the jury that he “did not like having his friends and family test ifying on his behalf and that his defense attorney had presented what mitigating test imony he had against [the defendant’s] wishes.” Id. at 1181-82. Rather than chide counsel for disregarding his clie nt’s directive, we concluded that counsel’s performance was a logical strategy to portray the defendant’s childhood as normal and happy, and we f ound no deficiency in his performance. The defendant was allowed to testify and to articulate his discomfort with the testimony presented by his coun sel. Finally, through counsel’s pretrial preparation, counsel discovered nothing that would suggest an abusive childhood.-27-

Here, Mr. Freeman’s “strategy” can hardly be similarly characterized: he severely curtailed Mr. Bryan’s testimony at the sen tencing stage, allowing him no opportunity to humanize himself before the jury. U nlike counsel in Romano, Mr. Freeman was exposed to virtual volumes of evidence of psychiatric disorders, including the scientific “picture” of the SPECT scan. Counsel in Romano clearly discussed the sentencing phase with his client and explained his strategy, and opted to allow his client to testify as to his disc omfort with having his mother and friends testify. In stark contrast to counsel in Romano , Mr. Freeman made no such effort to inform his client about the purposes of the sentencing phases, and did not discuss any mitigation strategy with him. See Evid. Hr’g Tr. at 36-37. And finally, given Mr. Bryan’s uninformed and likel y delusional perspective, Mr. Freeman still opted to heed Mr. Bryan’s wishes. (2) Wallace v. Ward The majority’s reliance on Wallace v. Ward, 191 F.3d 1235, is similarly unavailing. In Wallace , after the defendant pleaded guilty, he instructed his counsel not to present any evidence at the punishme nt trial and at the subsequent sentencing. Unlike here, the record indicated thatMr. Wallace “knew what mitigating evidence was, as his attorney discussed it with him. He likewise knew he had the right to present mitigating evidence.” 191 F.3d at 1246 (quoting Wallace v. State , 935 P.2d 366, 376 (Okla. Crim. App. 1997)). Mr. Wallace was-28-

the only defense witness at the sentencing phase, and he testified that he had conferred with counsel and knew that counsel could have vigorously presented a defense, and that he had instructed counsel not to cross-examine various witnesses or to object to the death penalty, and th at he had no desire to present mitigating evidence. Id. at 1249. “Defense counsel’s closing statement confirmed that he represented [Mr. Wallace’s] profe ssed interests.” Id. We recognized that Wallace embodied “unique” facts, and determined that couns el’s performance was not deficient and that no prejudice was shown. Id. at 1248. An attorney must weigh in his strategic calculus hi s client’s wishes. See
Romano , 239 F.3d at 1181. An attorney may disregard thos e instructions, however, when the record presents evidence that is contrary to the defendant’s wishes. Trial counsel can explain any inconsistenc ies by having her client testify as to her decision. We cannot know with certainty why Mr. Bryan’s parents feared exposing the mental illness of their son, no r can we explain Mr. Bryan’s unwillingness to concede that he was ever mentally ill. There are clues though. Mr. Bryan’s sister indicated that, to her parents, admission of mental illness equated with “someone . . .who had no sense at all. ” Evid. Hr’g Tr. at 43. I concede that, absent a determination of incompete nce, the autonomy of the client generally prevails at the guilt phase. But at sentencing, the stigma that might be associated by some with an insanity verdic t, which may be worse than-29-

the stigma of conviction, is no longer a potential outcome. See Christopher Slobogin and Amy Mashburn, The Criminal Defense Lawyer’s Fiduciary Duty to Clients with Mental Disability, 68 Fordham L. Rev. 1581, 1633 (2000) (noting that a conviction may be preferable to an insanity verdict because “the stigma associated with an insanity verdict (which incorpor ates a finding that a crime was committed) may be worse than the stigma of convicti on,” and may itself lead to institutional confinement). The Supreme Court has held that the deficiencies bo rne by the mentally retarded “do not warrant an exemption from criminal sanctions, but diminish their personal culpability.” Atkins, 536 U.S. at 320. The Court’s logic applies no less to those in Mr. Bryan’s shoes who suffer from severe mental deficiencies. See Hardwick, 320 F.3d at 1164 (“One can be competent to stand trial and yet suffer from mental health problems that the sentenc ing jury and judge should have had an opportunity to consider.”) (internal qu otation marks omitted). “Society has interests both in reliable outcomes an d a dignified process, interests that are not waiveable by a defendant. M ore specifically, society has an interest, independent of the defendant’s, in ensuri ng that the criminal justice system accurately assesses the culpability of those it prosecutes and that its procedures are not ignored or abused.” Slobogin an d Mashburn, supra , 68 Fordham L. Rev. at 1633. Mr. Freeman’s failure to recognize that no jury cou ld-30-

accurately assess the culpability of Mr. Bryan with out presentation of his mental health history was grossly deficient.

c. Counsel’s Preparation for the Mitigation Phase The majority also concludes that Mr. Bryan gave cou nsel an informed decision in part because he was “apprised of the be nefits of using mental health evidence in mitigation at the penalty phase.” Maj. Op. at 26. The majority reasons that because Mr. Bryan’s previous counsel, whose strategy was to present mental health evidence during both the guilt and pe nalty phases in his reliance upon an insanity defense, had explained thatstrategy to his client, that Mr. Bryan would somehow intuit the import of presenting menta l health testimony as applied to Mr. Freeman’s radically different approa ch (actual innocence) at both the guilt and sentencing phases. However, Mr. Free man, whose strategy clearly diverged from that of his predecessors because he p lanned to assert actual innocence during the guilt phase, did not discuss t he strategic implications of presenting mental health evidence during the senten cing phase. Cf. Romano , 239 F.3d at 1181. As to preparation for the sentencing phase, Mr. Bry an testified to the following: Q: Could you tell the Court what preparation was m ade for the

penalty phase.6 The ABA’s guidelines for capital defense work ar e “standards to which

[the Supreme Court has] long referred to as “‘guide s to determining what is reasonable.’” Wiggins , 2003 WL 21467222, at *9 (quoting Stricklin , 466 U.S. at 688). For example, “[p]rior to the sentencing phas e . . . counsel should discuss with the client the specific sentencing phase proce dures . . . and advise the client of steps being taken in preparation for sentencing. ” ABA Guidelines for the Appointment and Performance of Defense Counsel in D eath Penalty Cases § 10.11(C) (2003). Similarly, [c]ounsel at every stage of the case should discuss with the client the content and purpose of the information concerning p enalty that they intend to present to the sentencing or reviewing bo dy . . . , means by (continued...) -31- Mr. Bryan: “That’s hard to answer, because there ju st wasn’t any.” Q: Were you told that you would be a witness? Mr. Bryan: I was told that I would be called to the witness chair. Q: And when were you told that? When did Mr. Fre eman tell you that?

Mr. Bryan: Just a few minutes before I was called. Q: Did he have any time to prepare you for the que stions he was going to ask? Mr. Bryan: No, sir. Q: Did you ever discuss with Mr. Freeman the possib ility of using mental health evidence in the second stage of the trial? Mr. Bryan: It was never mentioned.
Evid. Hr’g Tr. at 36-37. Based on this testimony, which neither Mr. Freeman nor the State controverts, we cannot presume that Mr. B ryan had been counseled and advised on the new guilt phase strategy and its imp lications for the second phase strategy, when the testimony from the hearing indic ates otherwise. 66 (...continued)

which the mitigation presentation might be strength ened, and the strategy for meeting the prosecution’s case in aggr avation. Id. § 10.11(D). Furthermore, “[c]ounsel should consid er, and discuss with the client, the possible consequences of having the cli ent testify or make a statement to the sentencing . . . body.” Id. § 10.11(E). Despite these “well-defined norms,” Wiggins , 2003 WL 21467222, at *9, however, it appears thatcounsel disregarded such responsibilities. -32- In Battenfield, we determined counsel’s performance to be deficie nt where counsel “never explained the general meaning of mit igation evidence to [his client] or what specific mitigation evidence was av ailable.” 236 F.3d at 1229. Additionally, counsel in Battenfield “never advised Battenfield that mitigation evidence might include evidence about Battenfield’s substance abuse problems.” Id. Mr. Freeman cannot now hide behind Mr. Bryan’s unco unseled and uninformed wishes as to the sentencing phase. See also Thompson v. Wainwright , 787 F.2d 1447, 1451 (11th Cir. 1986) (“The reason lawyers may not blindly follow [a client’s] commands is that althou gh the decision whether to use such evidence in court is for the client . . . the lawyer first must evaluate potential avenues and advise the client of those offering pos sible merit.”) (internal quotation marks and citation omitted); see also Martin v. Maggio , 711 F.2d 1273, 1280 (5th Cir. 1983) (noting that defendant’s “inst ruction that his lawyers obtain an acquittal or the death penalty did not justify h is lawyers’ failure to investigate the intoxication defense” and that such “[u]ncounse led jailhouse bravado,-33-

without more, should not deprive a defendant of his right to counsel’s better-informed advice”); Gaines v. Hopper , 575 F.2d 1147, 1150 (5th Cir. 1978) (“[M]eaningful discussion with one’s client” is one of the “cornerstones of effective assistance of counsel.”).

d. Counsel’s “Strategy” at the Sentencing Phase The majority defends Mr. Freeman’s second stage per formance by declaring that to present any mental health testimo ny would be inconsistent with his first stage defense “and would do more harm than good.” Maj. Op. at 29. The majority also points to expert testimony that i ndicates that to have inconsistent first and second stage strategies is u nworkable, or, more specifically, the “kiss of death,” particularly when there’s a “d enial defense in the first stage” followed by “remorse and things like that” in the s econd stage. See Maj. Op. at 32 n.22 (quoting testimony of Tim Wilson, Evid. Hr’ g Tr. at 60); see also ABA Guidelines for the Appointment and Performance of D efense Counsel in Death Penalty Cases § 10.11 comment. at 107 (2003) (“[W]h ether or not the guilt phase defense will be that the defendant did not commit t he crime, counsel must be prepared from the outset to make the transition to the penalty phase.”). Neither Mr. Wilson, nor the other experts were sugg esting that a mitigation strategy employing this compelling mental evidence should nothave been used.-34-

Mr. Wilson merely pointed out that the better defen se would have been to utilize the mental health evidence in the guilt phase. In any event, the testimony highlighted by the majority merely indicates that h e discouraged arguing actual innocence in the first stage, followed by remorse i n the second stage. It is simply not correct to suggest that, given the guilt strate gy that Mr. Freeman used, that Mr. Wilson would not have utilized this “excellent organic brain damage” evidence in the sentencing phase. Evid. Hr’g at 62 . Indeed, former counsel Mr. Hess, the defense expert who was asked how he would have “done th[e] second stage differently,” answered that he “would have pu t [the] mental health experts on.” Evid. Hr’g Tr. at 23. In addition, the majority concludes that Mr. Freeman’s choice not to present the mental health history at the sentencing stage was reasonable, given his fear of the evidence acting as a two-edged swor d. Hampered by these constraints, the majority believes that Mr. Freeman opted “mercy” approach, while the State continues to characterize his “strategy” as one of “reasonable doubt.” (i) Testimony elicited at the sentencing stage The fairest way to evaluate Mr. Freeman’s strategy at sentencing is to review the scant evidence Mr. Freeman did present at the mitigation phase, in support of a purported “residual doubt” strategy. See Rec. doc. 56, Respondent’s-35-

Proposed Findings of Fact and Conclusions of Law ¶ 20 (filed Nov. 10, 1999) (“Freeman relied upon the strategy of ‘residual dou bt.’”). During the sentencing stage, Mr. Freeman presented brief testimony from M r. Bryan, his sister, and his mother. First, Mr. Bryan testified to offer an exp lanation for an alleged assault that took place while he was incarcerated. Next, M r. Bryan’s mother and sister testified that Mr. Bryan had high moral standards, believed in God, was nonviolent, and was a caring family member. Mr. Bryan ’s sister testified that she believed Mr. Bryan might reach a point that “he cou ld be salvaged” and that she “would ask the jury not to execute [her] brother.” Trial tr. vol. VII, at 1714. His mother, when asked if she would ask the jury not to kill Mr. Bryan, responded “Why sure.” Id. at 1728. Next, Mr. Freeman presented his closing argument, and rather than presenting a vivid portrait of Mr. Bryan’s life, he first noted that Mr. Bryan posed no continuing threat to society, because he h ad served his time for his past conviction. Despite his later comment that he coul d not present the mental health history evidence because of “incompatib[ility],” wi th his earlier assertions of Mr. Bryan’s innocence, Evid. Hr’g Tr. at 89, he next no ted that “[w]e have to remember that the guilt of Leroy is not an issue. You’ve determined that, we know that, everybody in this courtroom, everybody i n the world. The issue is what should be the appropriate punishment.” Trial tr

. vol. VII, at 1750-51. Mr.-36-

Freeman reminded the jury that Mr. Bryan could “be salvaged despite his vi[le]
act.” Id. at 1752. And despite the fact that “Leroy should not have killed,” id. at 1753, he asked the jury to impose a sentence of eit her life or life without parole. This is the extent of the evidence that Mr. Freeman believed he could present in support of any mitigating factors and to counter th e government’s evidence of aggravators. See id. at 1695-1734, 1748-59.

(ii) Presentation of diminished capacity after a gu ilty verdict Although Mr. Wilson testified at the evidentiary he aring that his approach to the trial and sentencing stage would have been m arkedly different from Mr. Freeman’s, in that he would have utilized strategie s that “dovetail[ed],” he does not suggest a strategy that would have “dovetailed” in any way with Mr. Freeman’s guilt phase approach. See Evid. Hr’g Tr. at 59-64. Mr. Wilson was suggesting that the bestapproach would have been to introduce the mental h ealth testimony in the first stage. But he should not be read to answer a question that he was not asked, as the majority does. See Maj. Op. at 31-32, and n.22.
In Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995), the Eighth Circuit granted habeas relief where counsel failed to inves tigate fully and present mitigating evidence of the defendant’s mental condi tion. Shortly after the offense, a state psychiatrist conducted a twenty mi nute interview of Mr. Antwine-37-

and “concluded that [he] did not suffer from any me ntal disease or defect, and that his actions at the time of the offense were co nsistent with PCP intoxication.” Id. at 1365. Several years later, Mr. Antwine was diag nosed with bipolar disorder. The Missouri state court concluded that the evidence of mental defect was insufficient to establish that the defendant su ffered from bipolar disorder at the time of the offense. In addition, the court fo und that the diagnosis was not credible. Counsel for Mr. Antwine defended his decision not t o conduct followup mental examination because it might only show dimin ished capacity in a bid for a lesser offense, like second degree murder. Mr. Antwine instructed his counsel to seek “acquittal rather than a reduced sentence, [an d] counsel decided not to investigate or pursue a diminished capacity defense .” Id. at 1366. Mr. Antwine’s counsel “gave no reason, though, for not requesting a second examination in preparation for the penalty phase of the capital mu rder trial.” Id. At the sentencing phase, counsel relied only on a p lea for mercy and presented only the testimony of the defendant’s bro ther. Counsel later testified “that he had considered putting on elaborate eviden ce of mitigation, but had rejected the idea in favor of an emotional beg-for- mercy approach. He was concerned that the guilty verdict indicated that th e jury had decided to give [his client] the death penalty, and felt that the best c ourse would be an appeal to their-38-

compassion.” Id. at 1367. Mr. Antwine’s counsel also claimed “thathe would have lost credibility if he had presented evidence of a mental impairment at the penalty phase, because such evidence would be incon sistent with the self-defense claim presented in the guilt phase.” Id. Mr. Antwine’s counsel’s performance managed to meetthe Strickland standard at the guilt phase, because Mr. Antwine co uld not establish prejudice: “If [Antwine’s] counsel had . . . presented evidenc e that [his client] was in the throes of a manic episode during the offense, the j ury might have found that he did not have the specific intent – cool deliberatio n – required for capital murder.” Id. at 1368. But the court could not say “that it was unreasonable of counsel not to make a diminished capacity argument in the guiltphase.” Id. As to the sentencing phase, however, the court held that “there [wa]s a reasonable chance that Antwine would not have been sentenced to death if counsel had effectively presented evidence of Antwi ne’s mental impairment at the penalty phase.” Id. “Since the jury found only two aggravating circumstances, the balance of aggravating and mitig ating circumstances in the penalty phase of the trial would have been altered enough to create a reasonable probability that the jury would not sentence Antwin e to death.” Id. The Antwine court dealt with issues that parallel those before us. First, Mr. Antwine’s counsel stated that his client’s goal was acquittal, and thus-39-

counsel opted not to present evidence of mental imp airment at either the guilt or sentencing phase. Here, Mr. Bryan did not want his lawyer to present evidence of mental illness. Additionally, Mr. Bryan rejecte d the idea of pleading guilty. Second, Mr. Antwine’s counsel believed he would hav e lost credibility if he had presented evidence of mental impairment because such evidence would be inconsistent with the self-defense claim. Here, Mr . Freeman testified that “[a]ny other position” apart from the one he took “would h ave been incompatible” with his first stage strategy that Mr. Bryan did not com mit the crime. Evid. Hr’g Tr. at
89. Here, in fact, the rationale for a finding Mr. Free man’s performance to constitute ineffective assistance of counsel under Strickland is much stronger than Antwine: In Antwine , counsel was deemed ineffective for not ordering subsequent mental evaluations that mighthave determined the defendant suffered from an episode during the time of the offense. We , however, do not need to speculate as to what the evaluations of Mr. Bryan m ight have said – we know Mr. Bryan has suffered from serious mental defects for several years, and that he continues to suffer from them. Thus, I would hold that Mr. Freeman’s sentencing phase “strategy” was no strategy at all – and that his failure to present evidence of Mr. Bryan’s mental health history was deficient under Strickland.

(iii) Residual Doubt Strategy-40-

Perhaps even more striking is the State’s defense o f the reasonableness of Mr. Freeman’s purported residual doubt strategy at sentencing. There is no question that “[t]he guilt phase may . . . provide the opportunity to sow the seeds of ‘residual’ doubt concerning the defendant’s guil t, enhancing the chances of a life sentence.” James M. Doyle, The Lawyer’s Act: Representation in Capital
Cases , 8 Yale J. L. & Human. 417, 423 n.25 (1996). Coun sel may further attempt to stir up any lingering doubt concerning t he guilt of the defendant during the sentencing phase, hoping to cause the ju ry to decide against the imposition of the death penalty. Residual, or “lin gering,” doubt has been defined as “(1) actual, reasonable doubt about guilt of any crime; (2) actual, reasonable doubt that defendant was guilty of a capital offens e, as opposed to other offenses; (3) a small degree of doubt about (1) or (2), suffi cient to cause the juror not to want to foreclose (by execution) the possibility th at new evidence might appear in the future.” Christina S. Pignatelli, Residual Doubt: It’s a Life Saver , 13 Capital Defense Journal 307, 307-08 (2001) (interna l quotation marks omitted). Thus, the utilization of the “residual doubt” strat egy can be an effective form of mitigation. See Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think? , 98 Colum. L. Rev. 1538, 1563 (1998) (“‘[T]he best thing a capital defendant can do to i mprove his chances of receiving a life sentence . . . is to raise doubt about his g uilt.’”). However, there is no-41-

evidence that Mr. Freeman made use of such a strate gy or tried to raise any doubt about his client’s guilt. A “strategy” is defined as “a careful plan or meth od,” or “a clever stratagem.” Merriam Webster’s Collegiate Dictionary 1162 (10th ed. 1997). Mr. Freeman never used the terms “lingering” or “residu al doubt” during the sentencing hearing. Mr. Freeman did not even use t he term “doubt” at the hearing. Mr. Freeman admitted he was not familiar with the term “residual doubt” until after the trial. See Evid. Hr’g Tr. at 106. Mr. Freeman never planned nor asserted a residual doubt defense. He was not consciously aware of relying on a residual doubt strategy at the sentenc ing trial, and never asserted the use of a residual doubt strategy until he was depos ed. There was no testimony or reminder given to the jury during the sentencing phase regarding Mr. Bryan’s potential innocence. T he concept of a residual doubt strategy makes sense when there is a chance o f mistaken identification, or when the guilt of others is implicated, such as in the case where there is a codefendant. See Evid. Hr’g Tr. at 65 (Testim. of Tim Wilson); see generally Margery Malkin Koosed, The Proposed Innocence Protection Act Won’t–Unles s it Also Curbs Mistaken Eyewitness Identifications, 63 Ohio St. L.J. 263, 313 n.44 (2002) (suggesting increased use of lingering doubt theory when suggestive identification procedure is at issue).7 When asked about his sentencing phase preparation , Mr. Freeman

testified that when he asked Mr. Bryan’s family abo ut Mr. Bryan, they stated “that [Mr. Bryan] had been a beautiful, good son, and had accomplished a great deal in society by becoming a teacher.” Evid. Hr’g Tr. at 88. Mr. Freeman elicited no such testimony during the sentencing ph ase. -42- A decision to pursue a lingering doubt strategy at the penalty phase, to the exclusion of other strategies, should be granted wi de deference, especially if mitigating evidence is presented that complements t hat strategy. However, Mr. Freeman presented no such evidence suggesting anyth ing that might lessen Mr. Bryan’s responsibility for the offense or to raise doubt about Mr. Bryan’s guilt. 7 Mr. Freeman relied upon and reiterated little, if any, evidence from the guilt phase that might have cast doubt upon Mr. Bryan’s g uilt. Instead, Mr. Freeman went to the opposite extreme. Mr. Freeman admittedthat Mr. Bryan “should not have killed” that he should not have committed this “vile act.” Mr. Freeman thus erased any doubt that might have weighed on the jury’s conscience. If the jurors had retained any residual doubts, Mr. Freeman extin guished them. The OCCA determined that it would not second guess Mr. Freeman’s sentencing phase strategy where, “[a]ccording to th e instruction on mitigating evidence, [Mr.] Bryan still appeared to be claiming actual innocence,” Bryan v.
State , 935 P.2d 338, 363 (Okla. Crim. App. 1996), and ef fectively shielded Mr. Freeman’s performance from scrutiny. Similarly, th e district court defended Mr. Freeman’s sentencing phase strategy and declared “M r. Freeman’s decision was-43-

correct or at least professionally reasonable.” Di st. Ct. Order at 65. I don’t understand how the OCCA and the district court coul d be so charitable when Mr. Freeman admitted that Mr. Bryan “killed” and committed a “vile act.” It is certainly possible that a lawyer can present the elements of a defense without knowing that there is a specific name for h er strategy. Creative minds can, indeed, devise strategies that others have rea ched via different paths. I believe, however, that to credit Mr. Freeman with h aving relied upon a strategy of residual doubt, where the evidence strongly sugg ests that he was unaware such a strategy even existed–and where his actions compl etely undermined that defense– is untenable. Mr. Freeman’s performance c annot be construed so that it is “considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotation marks and citation omitted). Strickland counsels deference to plausible legal strategies, not to unilateral disarmament. See Wiggins , 2003 WL 21467222, at *10 (in holding that the petitioner demonstrated ineffective assistance of counsel, noting that counsel put on a “half-hearted mitigation case,” and concluding that “the ‘strategic decision’ the state courts and respondents all invoke to justify counsel’s limited pursuit of miti gating evidence resembles more

a post-hoc rationalization of counsel’s conduct that an accur ate description of their deliberations prior to sentencing”).

(iv) Characterizing the mental health evidence as atwo-edged sword8 We also note that the jury heard nothing regardin g how voluntary or

involuntary treatment with anti-psychotic drugs mig ht blunt the force of the continuing threat aggravator. Based on the record before us, we are unable to discern the necessity of the forced administration of anti-psychotic drugs such as Navane, except to note that “[t]here are often stro ng reasons for a court to determine whether forced administration of drugs can be justified on these alternative grounds [such as related to the individ ual’s dangerousness or to the individual’s own interests].” Sell v. United States , 121 S. Ct. 2174, 2185 (2003).

-44- The OCCA also defended Mr. Freeman’s decision not t o present mental health evidence because “[g]iven the other evidence of violent behavior, the jury could have thought this type of psychological probl em indicated a propensity for future violence.” 935 P.2d at 343. Again, Battenfield provides a useful analogy. There, the OCCA determined that, as to the history of Mr. Battenfield’s drug use, “[t]he psychologist’s conclusion that Battenfield w as chemically dependent does nothing to undermine our confidence in the jury’s d etermination that he constitutes a continuing threat to society.” 236 F .3d at 1227 (quoting Battenfield
v. State , 953 P.2d 1123, 1147 (Okla. Crim. App. (1998)). W e noted, however, that evidence of Mr. Battenfield’s drug and alcohol reliance, and his potential treatment for such reliance, might blunt the force of the continuing threat aggravator. See id. at 1235. The same is true here. Had the jury been given mor e information about Mr. Bryan’s background, mental health and treatmenthistory, 8 and the facts surrounding his previous conviction, which would he ighten the jury’s sensitivity-45-

to the ingrained nature of his organic disease, the re is a reasonable probability that the jury would not have sentenced Mr. Bryan to death, because the jury had the option of sentencing Mr. Bryan to life without parole. The decision not to put forth mental health evidenc e may sometimes be characterized as strategic. See Cannon v. Gibson , 259 F.3d 1253, 1277-78 (10th Cir. 2001) (noting presence of “two-edged sword” wh ere counsel presented “substantial” mitigating evidence and where mental health evidence would have “displaced rather than supplemented” the mitigating evidence, such that petitioner could not establish prejudice); see also Atkins , 536 U.S. at 320-21 (recognizing that evidence of mental retardation may enhance likelihood of finding of future dangerousness aggravator, and not ing that “[m]entally retarded defendants may be less able to give meaningful assi stance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes”). However, surely the majority does not suggest that any time counsel foregoes the presentation of mitigating evidence that may be viewed to support an aggravato r, such as evidence of mental illness, evidence of alcohol abuse, or evide nce of an abusive upbringing, that he is assured blanket protection from review o f his effectiveness. See Maj. Op. at 31. To do so would be to arm counsel with atwo-edged sword.-46-

The Supreme Court’s most fundamental direction regarding the presentation of mitigating evidence at sentencing d emands that “precisely because the punishment should be directly related t o the personal culpability of the defendant,” the jury must be allowed to conside r all relevant mitigating evidence. Penry v. Lynaugh , 492 U.S. 302, 318, 327-28 (1989). In a case suc h as this, where the mitigating evidence that was act ually presented was scant at best, where counsel knew his client would make a po or witness because his delusional state precluded him from being able to b eg for mercy or to express remorse, and where the mental health evidence is we ll-documented and longstanding, Mr. Freeman’s performance left the jury n o reason even to consider as a possibility that Mr. Bryan might not be morally cul pable enough, as the result of his involuntarily adduced organic brain disorder, f or the death penalty. (iv) Post hoc “mercy” approach The majority characterizes Mr. Freeman’s sentencing strategy as a “mercy approach.” Maj. Op. at 34. Again, I do not think it is appropriate for the court to supply a “

post hoc rationalization” for Mr. Freeman. Wiggins , 2003 21467222, at *10 (rejecting state courts’ character ization of defense counsel’s “halfhearted mitigation case” approach as a “strate gic decision”). Even if his beleaguered presentation at sentencing can be deeme d as seeking mercy, though, the presentation was unreasonably flawed. “As a pr actical matter, the defendant-47-

probably has little or no chance of avoiding the de ath sentence unless the defense counsel gives the jury something to counter both th e horror of the crime and the limited information the prosecution has introduced about the defendant.” Jonathan P. Tomes, Damned if You Do, Damned if You Don’t: The Use of Mitigation Experts in Death Penalty Litigation , 24 Am. J. Crim. L. 359, 364 (1997). I find it difficult to ascribe to Mr. Free man the act of seeking mercy in the same sentence that he denounced Mr. Bryan’s “vi le act.” Mr. Freeman failed to provide any individual portrayal of Mr. Bryan’s life, a portrayal that might have included testimony about his being a college g raduate, a high school teacher, a man who was married and who began to suf fer headaches, which signaled the onset of his debilitating organic brai n damage. Asking for mercy requires some attempt to invoke co mpassion, a sympathetic response of the jurors to explain those acts. See, e.g., Anthony V. Alfieri, Mitigation, Mercy, and Delay: The Moral Politics of Death Penalty Abolitionists , 31 Harv. C.R.-C.L. L. Rev. 325, 327 (1996) (“Duri ng the penalty or sentencing phase of capital trials, lawyers pres ent mitigating evidence of client psycho-social deprivation to the jury in an attemptto explain specific violent acts of criminal lawbreaking and, thus, invite mercy.”); Stephen P. Garvey, supra , 98 Colum. L. Rev. at 1539 (“On the side of mitigation, jurors tend to focus most on factors thatdiminish the defendant’s individual responsibilityfor his actions.-48-

They attach significant mitigating potential to fac ts and circumstances that show diminished mental capacity, such as mental disturbance at the time of the offense (emphasis added); id. (“[Jurors] show little mercy to defendants who sho w no remorse.”). The majority’s holding essentially ins ulates counsel’s sentencing phase performance by supplying counsel with yet ano ther justification for a nonexistent strategy, not unlike the post hoc attempt to explain away Mr. Freeman’s guilt-affirming sentencing performance by calling it a “residual doubt” strategy. Because Mr. Freeman made no attempt to provide the jury with the “particularized nature of the crime and the particu larized characteristics of the individual defendant,” Gregg , 428 U.S. at 206, I cannot agree that he applied any strategy at all at the sentencing phase.

B. Prejudice As stated in the panel dissent, that Mr. Freeman’s deficient performance resulted in fundamental prejudice is obvious. See 276 P.2d at 1185 (Henry, J., dissenting). “[T]he death penalty is different in both its seve rity and its finality.” Neill v. Gibson , 278 F.3d 1044, 1068 (10th Cir. 1998). “From the point of view of society, the action of the sovereign in taking the life of one of its citizens . . .-49-

differs dramatically from any other legitimate stat e action.” Id. “[A] difference exists when a defendant’s life is at stake. ‘In de ath cases, doubts with regard to the prejudicial effect of trial error should be res olved in favor of the accused.’” Moore v. Reynolds , 153 F.3d 1086, 1118 (10th Cir. 1998) (Brorby, J., dissenting) (quoting Andres v. United States , 333 U.S. 740, 752 (1948)). “It is neither possible nor desirable for a person to whom the state entrusts [such] an important judgment to decide in a vacuum.” Barclay v. Florida , 463 U.S. 939, 950 (1983). Psychiatric mitigating evidence “has the potential to totally change the evidentiary picture.” Middleton v. Dugger , 849 F.2d 491, 495 (11th Cir. 1988); see also Stephens v. Kemp , 846 F.2d 642, 653 (11th Cir. 1988) (stating that “prejudice is clear” where attorney failed to prese nt evidence that defendant spent time in mental hospital). Here, we have test imony from two psychiatrists as to Mr. Bryan’s delusions and his organic brain diso rder, and a SPECT scan to verify these clinical observations. We have hospit alization records documenting his disorder. We have testimony from his previous attorneys regarding his illness. We have Mr. Bryan’s own delusions and fant astic stories and his refusal to admit he has ever been afflicted mentally. And we have the observation that his condition was apparently so grave that one expe rt stated it “place[d] into serious question his competency to stand trial, as well as his legal culpability in the crimes for which he is charged.” Evid. Hr’g Tr . at 95.-50-

The compelling and extensive evidence of Mr. Bryan’ s history of mental illness creates a reasonable probability that the j ury would have concluded that the mitigating evidence outweighed the continuing t hreat aggravator and might also be viewed in a mitigating light as to past vio lent behavior. See Battenfield, 236 F.3d at 1235 (concluding that had mitigating ev idence, which included defendant’s reliance on drugs and alcohol and menta l health evidence, been presented to jury, there was a reasonable probabili ty that the jury would have not have given defendant the death penalty); Antwine , 54 F.3d 1368 (holding that presentation of defendant’s mental impairment would alter the balance of aggravating and mitigating circumstances in the pen alty phase of the trial . . . enough to create a reasonable probability that the jury would not sentence [Mr.] Antwine to death”). This evidence could have materially altered the bal ance of aggravating and mitigating factors underlying the jury’s sentencing decision. The failure to present the evidence deprived the jury of a “vehicl e for expressing its ‘reasoned moral response’” to the substantial evidence of Mr. Bryan’s mental illnesses when it rendered its sentencing decision. Penry , 492 U.S. at 328. Accordingly, there is a substantial probability the jury, or that at least one juror, would have determined that the mitigating circumstances outwei ghed the aggravating circumstances. See Wiggins , 2003 WL 21467222, at *17 (holding that prejudice-51-

had been established where counsel presented only o ne significant mitigating factor, noting that, “[h]ad the jury been able to p lace petitioner’s excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balan ce”). Mr. Freeman’s performance “‘so undermined the proper functioning of the adversarial process that the [penalty phase of] of the trial cannot be relied on as having produced a just result.’” Battenfield, 236 F.3d at 1235 (quoting Strickland, 466 U.S. at 686).

III. CONCLUSION The majority’s conclusion revolves around the Supre me Court’s statement that “‘[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statement or actions. Counsel’s action are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.’” Ma j. Op. at 23-24 (quoting Strickland, 466 U.S. at 691) (emphasis added). I simply cannotagree that Mr. Bryan made an informed strategic choice wh en his counsel decided to forego presentation of any mental defect evidence at the sentencing stage. Mr. Freeman did not ever know what use he could have ma de of the mental health testimony. He claims to have felt constrained by t he wishes of his client’s family-52-

and by his client to submerge any indication of men tal distress in the Bryan family, and rather than discuss the purpose of the sentencing phases and of mitigating evidence generally with his client, he l imited his discussion to merely informing his client that he would be testifying minutes later. And finally, in an inconceivable decision that completely destroyed an y consistency between the guilt and sentencing phases, Mr. Freeman assured th e jury of his client’s guilt and added his own condemnation of Mr. Bryan’s act. In its recent and historic decision that declared t he execution of mentally retarded defendants unconstitutional, the Supreme C ourt observed that [m]entally retarded persons frequently know the dif ference between right and wrong and are competent to stand trial. B ecause of their impairments, however, by definition they have dimin ished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in lo gical reasoning, to control impulses, and to understand the reactions o f others. There is no evidence that they are more likely to engage in cri minal conduct than others, but there is abundant evidence that they of ten act on impulse rather than pursuant to a premeditated plan, and th at in group settings they are followers rather than leaders. Their defic iencies do not warrant an exemption from criminal sanctions, but they do d iminish their personal culpability. Atkins, 536 U.S. at 318 (footnotes omitted). The OCCA has acknowledged the direction of the Supreme Court’s capital punishmentjurisprudence and concluded that “while mentally retarded individuals are capab le of committing crimes in Oklahoma, in light of

Atkins , those who fit within its holding are no longer eligible for the death penalty.” Murphy , 54 P.3d at 567. The OCCA has further9 See, e.g. , Henry Weinstein, California Appeal Lost, Yet Freedom Won:

A dissenting opinion was so persuasive that prosecu tors dropped the case that convicted a man of immigrant smuggling , L.A. Times, Metro Section (Apr. 23, 2003) (discussing United States v. Ramirez-Lopez , 315 F.3d 1143, 1160-76 (9th Cir. 2003) (Kozinski, J., dissenting), opinion withdrawn and appeal dismissed, 327 F.3d 829 (2003)). -53- acknowledged the Supreme Court’s holding that “‘[c] onstruing and applying the Eighth Amendment in the light of our evolving stand ards of decency, we therefore conclude that such punishment is excessiv e and that the Constitution places a substantive restriction on the State’s pow er to take the life of a mentally retarded offender.’” Id. at n.15 (quoting Atkins , 536 U.S. at 321). I believe that others too can be “competent to stan d trial and yet suffer from mental health problems that the sentencing jury and judge should have had an opportunity to consider.” Blanco , 943 F.2d at 1503. Or, as even Mr. Freeman should have understood, whether Mr. Bryan was “insane” or not, he was clearly, as both Drs. Smith and Murphy colorfully concluded, “crazy.” I hope that the State of Oklahoma will reflect on these matters and consider settling this case by either agreeing to a new sentencing phase where a f airly composed jury can evaluate this compelling evidence or by renewing it s offer of life imprisonment with no possibility of parole. The prosecution’s v ictory on appeal does not eliminate its obligation on an ongoing basis to con scientiously review whether to exercise prosecutorial discretion. 9-54-

I do not quarrel with Mr. Bryan’s guilt; his crime and his irreversible brain damage justify lifelong incarceration and treatment . But our Constitution does not permit us to sentence this man to death withoutat least allowing a jury to consider evidence of his diseased mental state. I would therefore reverse the judgment of the distr ict court and remand with instructions that the district court grant the writ as to Mr. Bryan’s death sentence, subject to the state district court condu cting a new sentencing trial.