Counsel S Failure to Investigate, Develop and Present Mitigating Evidence

PETITIONER IS ENTITLED TO RELIEF FROM HIS DEATH SENTENCE BECAUSE COUNSEL INEFFECTIVELY FAILED TO INVESTIGATE, DEVELOP AND PRESENT MITIGATING EVIDENCE OF PETITIONER’S TRAUMATIC AND IMPOVERISHED CHILDHOOD AND HISTORY OF MENTAL ILLNESS AND ORGANIC BRAIN IMPAIRMENT, AND INEFFECTIVELY PRESENTED A HARMFUL CLOSING ARGUMENT AT THE PENALTY PHASE OF PETITIONER’S TRIAL.

1)The claims and factual allegations set forth in all other sections of this petition are realleged as if set forth entirely herein.

Counsel’s Failure to Investigate, Develop and Present Mitigating Evidence

2)The importance of mitigating evidence in capital sentencing proceedings is a fundamental tenet of the United States Supreme Court’s jurisprudence. E.g., Eddings v. Oklahoma, 455 U.S. 104, 110-12 (1982); Lockett v. Ohio, 438 U.S. 586, 605 (1978).

As such, the Court has specifically held that:

[a] process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

Woodson v. North Carolina, 428 U.S. 280, 304 (1976). A reliable capital sentencing proceeding requires, therefore, that the jury render an individualized decision only after consideration of the frailties of the individual defendant before them. Gregg v. Georgia, 428 U.S. 153, 206 (1976); McCleskey v. Kemp, 481 U.S. 279, 304 (1987); Woodson, supra. To be sure that each defendant receives a properly individualized sentence, “the jury’s attention should be focused” on the “particularized characteristics of the individual defendant.” Harris v. Dugger, 874 F.2d 756 (11th Cir. 1989) (quoting and relying on Gregg v. Georgia, 428 U.S. 153, 206 (1976); Woodson, supra; Lockett v. Ohio, 438 U.S. 586 (1978)).

3)A jury cannot make the life-or-death sentencing decision in a reliable, individualized and constitutional way without knowing the actual mitigating evidence about the defendant. Thorough investigation and presentation of mitigation in a capital case are therefore absolute prerequisites to constitutionally effective assistance of counsel. The core Eighth Amendment principle that “respect for humanity” requires consideration of information about the offender, Lockett, 438 U.S. at 602 (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)), allows for no less. Commonwealth v. Perry, 537 Pa. 385, 397, 644 A.2d 705, 709 (1994) (“It is not possible to provide a reasonable justification for appearing in front of a death penalty jury without thorough preparation.”).

4)At the capital sentencing proceeding, trial counsel presented scant information about Petitioner. The jury heard, only briefly, from Christopher Conboy, Reverend Edward G. Long and Father Elias Penaloca. N.T. 1/12/94 at 173 - 233. These witnesses knew precious little about Petitioner. Mr. Conboy and Rev. Long only testified about Petitioner’s behavior after his arrest and incarceration on this matter. Fr. Penaloca testified only briefly about his church-related counseling of Petitioner. None of these witnesses knew anything about Petitioner’s childhood, his background or his impaired mental health. The jury was, therefore, left with a significantly incomplete and inaccurate picture of Petitioner. Because trial counsel failed to conduct a proper investigation of Petitioner’s life history, the jury never heard about Petitioner’s devastatingly poor, brutally violent, and traumatic childhood and his extensive history of mental illness.

5)Trial counsel failed to interview the numerous family members who would have provided him with powerful mitigating evidence. Those family members include Jose Ramon Reyes, Miriam Rodriguez, Cecilia Maldonado, Myrna Ortiz, Jose Antonio Reyes, Edina Reyes, Elsie Reyes, Norma Iris Reyes, Brunilda Zayas and Edwin Zayas. Their Affidavits are appended to this Petition. Each of these relatives of Petitioner had information of critical importance to Petitioner’s capital sentencing hearing. Each of these witnesses would have testified on Petitioner’s behalf, had they been asked. The jury heard none of the crucial information they had to offer, because counsel failed to properly investigate and prepare for the capital sentencing proceeding.

6)Moreover, counsel also failed to properly investigate, develop or present expert mental health evidence. Because counsel ineffectively failed to investigate and develop the evidence about Petitioner’s background and life history, counsel was unaware that Petitioner has a life-long history of mental illness and cognitive impairment. Because of counsel’s ignorance, which arose from counsel’s failure to investigate, counsel did not develop and present the evidence of Petitioner’s mental illness and cognitive impairments to a mental health professional; counsel did not obtain an adequate and reliable evaluation of Petitioner’s impaired mental health; and counsel failed to present to the sentencing jury any expert mental health testimony. If counsel had effectively investigated Petitioner’s background and family history; presented the results of an adequate investigation to mental health professionals; and obtained expert mental health evaluations that took Petitioner’s background into account, counsel could have presented powerful mitigating evidence of Petitioner’s impaired mental health. Attached to this petition are the Affidavits of Dr. Perry Berman, Dr. Pedro Ferreira, Dr. J. Adam Milgram, Dr. Ruth Latterner and Dr. Robert Fox, psychologists and psychiatrists who describe the substantial and significant mental health mitigating evidence that could have been presented if counsel had properly investigated Petitioner’s background, presented this information to mental health experts, and obtained reliable expert mental health evaluations and testimony.

7)Had counsel properly investigated and prepared for capital sentencing, the jury would have heard a compelling case for life.[1]

8)Angel Reyes was one of nine children born in Coamo, Puerto Rico, to Maria Isabel Rodriguez and Eladio Reyes. Angel was raised in Coamo. He lived there until he moved to the mainland United States when he was in his late teens.

9)Angel always suffered from severe health problems. He was very ill right after he was born. He was so bad off that his family thought he would die. Later, when Angel was a small boy, he had a frightening and mysterious illness. For no apparent reason, he suddenly fell to the floor and stopped breathing. As he lay there for many minutes, motionless and without breathing, his family believed that he was dead. Then, suddenly as he collapsed, Angel came back to consciousness and began breathing again. No one knew or understood what had happened to Angel. Given his family’s poverty and backward ways, they did not seek medical attention for young Angel.

10)Even when he was not in the throes of a medical crisis, Angel had many problems. He was always painfully thin and pale. He was very forgetful. He constantly had headaches and sunlight was unbearable to him. Angel was never an active child. He was always very withdrawn. While the other children were running around playing, Angel stayed to himself, on the sidelines.

11)During the years that he was growing up, Angel’s family was extremely poor. Angel and his eight brothers and sisters lived with their parents in a run-down, two-room house. Maria Isabel Rodriguez and Eladio Reyes slept together in one of the rooms while Angel and his eight brothers and sisters slept together on the floor in the other room. Angel’s childhood home had no electricity, no refrigeration and no running water. Because there was no stove in the house, all meals were cooked outside over burning wood. Because there was no indoor plumbing, Angel’s family used an outhouse with a pit toilet. Angel bathed in a bucket located in that same outhouse. The family washed clothes with a washboard in a bucket or in the river. Disease and vermin were everywhere.

12)Because of their dire poverty, Angel and his brothers and sisters constantly lacked the most basic of life’s necessities. They never had shoes to wear and were constantly forced to go barefoot. They did not have enough clothing to wear and what clothes they did have were often tattered. Holiday or birthday gifts were unheard of.

13)Because of the family’s acute poverty, Angel began working when he was still a small boy -- around five years old. Angel bought and sold fruits on the streets of Coamo. He gave what little money he earned to help support his family. Angel also did what he could to help his family with their day-to-day affairs. He planted seeds and tended the family’s cows. He hauled water from the river to the family’s house every day. This required Angel to walk three kilometers each way to get water for the house. Angel also cut wood so that the family could cook their food.

14)Angel’s father, Eladio Reyes, was a stubborn, illiterate, ignorant and uneducated man. His illiteracy caused him many very serious problems. His illiteracy became the butt of jokes and ridicule, which caused this brutal man to act out in a violent and vengeful manner.

15)Eladio was a cruel and irrational man. He had a violent temper and got angry for no reason at all. Eladio constantly yelled and screamed at Angel, his mother or his brothers and sisters. He never showed Angel any love or affection -- Eladio never hugged or kissed Angel, never told him he loved him. Despite the fact that Angel was a well-behaved child, Eladio brutally beat Angel. Eladio hit Angel with his fists, belts, sticks, two-by-fours, and garden hoes. Eladio violently threw things at Angel. Eladio beat Angel for the slightest reason or for no reason at all. Eladio beat Angel with a hoe for planting too many seeds in one hole. He beat Angel for not selling enough fruit. Many times, Eladio beat Angel without warning and for no reason at all. Because of Eladio’s constant brutality, Angel was terrified of his father. He stayed away from home for days at a time in order to avoid his father and the ruthless beatings. Angel never knew when or why his father was going to beat him.

16)Eladio Reyes mistreated Angel in many ways other than beating him. Even while Angel was just a boy, Eladio often put Angel out of the house for long periods of time. Eladio inexplicably ordered Angel to tie up his brother, Jose Ramon. Eladio denied Angel and the other children food for days at a time. On his father’s whim, Angel was forced to go for days without eating anything.

17)Angel had extraordinary difficulty learning in school. He was repeatedly left back. He was often several grade levels behind his younger relatives. Although Angel tried very hard, he was never able to catch up. As a result, Angel never learned to properly read or write.

18)As he grew up, Angel began exhibiting bizarre behaviors. Once, while in Coamo, Angel just went crazy. He crashed around blindly. He tried to throw furniture out of the windows of his mother’s house. He screamed and yelled incoherently. He saw racing ants where there were no ants. Despite the fact that Angel had his eyes wide open, he was unable to see his family members who were trying to talk to him and never responded to anything that was said to him. After a while, Angel threw himself to the floor and went into a deep sleep. When he woke up, he was unable to remember anything that had happened.

19)Angel went through repeated periods when he would go into trance-like states. When family members spoke to him, he was unable to hear or understand what was being said to him. He would just stare blankly into space.

20)Angel also has a family history of mental illness. He has a maternal cousin who has repeatedly been institutionalized because of her problems. He also has a sister who suffers from debilitating mental problems.

21)Angel left Coamo for the mainland United States when he was in his late teens, seeking work. When he got to the mainland, Angel did migrant farm work in Florida and factory work in Pennsylvania. He worked under grueling conditions, and from sun-up until sun-down. However, he always sent money back to his family.

22)Angel brought his children to Coamo to visit his family. While they were there, Angel hovered over and protected his children the entire time. It was obvious to his family members that Angel loved his children very much.

23)Angel’s bizarre behavior grew in intensity and frequency. By the time of a psychological evaluation conducted in 1987, the evaluator, Dr. J. Adam Milgram, found Angel to be a cognitively damaged and mentally ill man. In the report outlining the results of this evaluation, Dr. Milgram noted that:

Petitioner’s father was “a person who needed to be respected and demanded obedience. When Mr. Reyes failed in some way to obey, he was hit with a strap.”

Despite the violence he suffered at his father’s hands, Petitioner “respected and loved his father very deeply.”

Petitioner “became somewhat ‘smart’ with [his mother], and she immediately turned around and slapped his face.”

Petitioner “quit school in the seventh grade.”

Petitioner “began to come to the U.S. -- to Florida to pick vegetables in season.”

Psychological Evaluation, Diagnostic Consultants, Examination Date January 8, 13, 1987. 24) Dr. Milgram noted that Petitioner was “over-controlled and rigid” and that he was “easily ... affected by outside events and individuals’ reaction to him.” The conclusions that Dr. Milgram reached about Petitioner were significant:

Petitioner was “functioning in the low average range of intelligence”

“The Bender Gestalt ... indicates more functional (psychological) difficulties in terms of dealing with himself and the world. His judgment seems very poor and the test indicates real distortion in his personality.”

“The projective technique -- House-Tree-Person Drawings reveal an individual who feels very small and inferior. The drawings are childlike and quite primitive, and indicate both low functioning intelligence and/or emotional difficulties. The drawings on a whole reveal poor reality testing, poor impulse control and very little emotional resources in which to cope -- very little psychological strategies that had been developed in order to face our complex society. He is, on the whole, a poorly integrated personality and his level of development as an individual is minimal.”

“Internally, Mr. Reyes appears to be a very insecure individual who views himself as somewhat inferior and inadequate as a person.”

“Mr. Reyes still remains a somewhat repressed, overcontrolled and rigid personality with a very fixed sense of morality that he tries to place on others. His sense of perfection and self-adequacy creates undue stress upon him, and he is easily bowled over and overwhelmed by the smallest of things that he cannot control nor dominate in some respect. The feelings, the conflicts, the confusion, build up within him, and because of his machismo attitude he cannot open himself up and share his hurt and pain with others.”

“He is an insecure and fragile personality internally who has not been able to admit this.”

Psychological Evaluation, Diagnostic Consultants, Examination Date January 8, 13, 1987. Because Petitioner was suffering from such a constellation of impairments, Dr. Milgram “recommended that Mr. Reyes be mandated for” mental health treatment.

25)Despite the availability of such evidence documenting Angel’s poverty-stricken and traumatic childhood and his debilitating mental illness, the jury heard virtually nothing about Angel’s life. Counsel failed to investigate, prepare and present this mitigating evidence. Counsel did not interview family members; did not investigate Petitioner’s traumatic and deprived background; and did not seek or obtain records, such as Dr. Milgram’s report, documenting Petitioner’s background and impairments. Counsel was ineffective. Had counsel adequately prepared for the penalty phase, testimony and records regarding Angel’s background would have been presented. Evidence of Angel’s sad and traumatic upbringing and the impaired person it produced would have been presented to the jury. But counsel did not do the needed investigation and preparation, and the jury learned none of this.

26)Moreover, as significant as it is, the above-described mitigating evidence is only part of the actual mitigating evidence that exists and that could have been presented if counsel had adequately investigated, prepared and presented Petitioner’s case for life.

27)Although trial counsel retained two mental health experts, counsel failed to provide these experts with any life history information about Mr. Reyes. Counsel did not obtain or provide the family accounts discussed above. Counsel did not obtain or provide Dr. Milgram’s report or other collateral information about Mr. Reyes. Counsel did nothing to find out about the tragic life and profound impairments of this deeply troubled man or to provide the doctors with the information they needed to meaningfully evaluate Petitioner.