Edward Lang v. David Bobby
Opinion
Edward Lang, an Ohio prisoner under a death sentence, appeals from the district court's denial of his petition for a writ of habeas corpus filed under
I. Factual Overview
In 2006, Lang shot and killed Jaron Burditte and Marnell Cheek during a botched drug deal turned robbery in Canton, Ohio. 2 Lang was indicted on two counts of aggravated murder and one count of aggravated robbery with firearm *806 specifications. In 2007, the case was tried before a jury.
Juror 386
After the jury had been empaneled and the first two witnesses had testified, the prosecutor notified the trial court that Cheek's father recognized Juror 386 as the daughter of the woman married to Cheek's brother. The trial court decided to address the issue at the next break, after two more witnesses testified. The court later noted that, because the jurors were in the courtroom, they did not have the opportunity to interact with each other. During the break, the trial court and counsel questioned Juror 386 outside the presence of the other jurors. Juror 386 acknowledged her connection to Cheek and said she had met her once and had attended her funeral. The juror said she learned of Cheek's death from her grandfather and from what she had read in the newspaper; however, she denied talking to her mother, step-father, or family members about the case or learning anything about it. The trial court also questioned Juror 386 about her contact with the other jurors. She denied telling any of them about her connection to Cheek. Juror 386 was excused by agreement of the parties.
Before dismissing her, the trial court confirmed that Juror 386 had not spoken with other jurors and instructed her to have no contact with other jurors:
Trial Court: You cannot discuss this at all with any of the other jurors. You have not done so. Is that correct?
Juror 386: No.
Trial Court: No? You cannot discuss this with them. You cannot call them on the phone and talk to them about this. If you would see them on the street or at a store while this case is still going on, you can't discuss with them why you were removed from jury service or anything else about this case whatsoever. Do you understand that?
Juror 386: Yes.
Trial Court: Have you talked to any of them about this whatsoever up until this very moment? Have you talked to any of the other jurors about this at all?
Juror 386: No.
Trial Court: Okay thank you.
The trial court then summoned the jurors and told them that Juror 386 was excused because "it was determined that she may have had a relationship with either a witness or a party or somebody that was involved in the case." The trial court asked the jurors as a group whether Juror 386 had talked to them about knowing someone involved in the case. The judge stated: "I take it by your silence that she did not." Neither Lang's counsel nor the prosecutor asked to question the jurors individually. Juror 386 was replaced, and the trial resumed. State v. Lang , 954 N.E.2d at 613. Lang does not claim a motion for a mistrial was made. When the prosecution rested, Lang presented no evidence. The jury returned a guilty verdict on all counts. Thereafter, the trial court held a separate hearing for mitigation evidence and sentencing.
Mitigation Hearing
At the mitigation hearing, the jury heard evidence, chiefly from Lang's mother and half-sister, about Lang's difficult and dysfunctional childhood. In his opening statement, Lang's defense counsel, Anthony Koukoutas, said, "I am not here to make excuses." He continued to say, "I want to show you that [Lang] [i]s not just a name on a case file or a name that appears in the newspaper, that he's an actual human being." Counsel then previewed what he expected Lang's mother, Tracie Carter, and Lang's half-sister, Yahnene Robinson, to testify. He emphasized *807 Lang's father's negative qualities and how he abducted, abused, and neglected Lang. He also referred to evidence of Lang's psychiatric problems and the fact that Lang was severely withdrawn and emotionally scarred after living with his father for two years.
The Ohio Court of Appeals summarized Carter's and Robinson's testimony:
{¶ 315} Yahnena Robinson, the defendant's half-sister, had a close relationship with Lang before he was ten years old. She described it as a "typical brother sister relationship." Lang was also a "good student."
{¶ 316} Robinson testified that Lang's father, Edward Lang Sr., abused their mother and was on drugs. Their mother would not allow Edward to visit Lang very often because of "his history and his anger problems."
{¶ 317} After Lang graduated from elementary school, Lang visited his father in Delaware. The visit was supposed to last for two weeks, but Edward did not allow Lang to return home. Two years later, their mother found Lang and brought him home.
{¶ 318} Lang was happy when he first came home, but later, his mood changed. According to Robinson, "he would be sad sometimes, quiet * * * [and] other times he would look real hurt or be angry." Subsequently, Lang received counseling, went to a psychiatric facility, and spent time in a residential facility for his mental-health problems.
{¶ 319} Robinson also testified that Lang has a two-year-old daughter whose name is Kanela Lang.
{¶ 320} Tracy Carter, the defendant's mother, testified that Lang is the third of her four children. Carter met Edward Lang Sr. when he was her landlord. Carter did not have money to pay the rent, and she slept with him in exchange for lodging. Carter and Edward then developed a relationship.
{¶ 321} Carter stated that Edward became violently abusive when he was intoxicated and using drugs. After Lang was born, Edward went to jail for stabbing Carter and setting her apartment on fire. Edward was also incarcerated for child molestation.
{¶ 322} Carter would not allow Lang to visit his father until a court order ordered her to do so. Carter lived in Baltimore, Maryland, and Edward lived in Delaware. When he was ten years old, Lang went to see his father in Delaware for a two-week visit. However, Edward did not allow Lang to return home after the two weeks ended, and Carter did not see her son for the next two years. Carter made repeated attempts to find Lang in Delaware, but was unsuccessful. Finally, Carter found Lang and brought him home.
{¶ 323} Carter stated that her son was malnourished when she found him and was wearing the same clothing that he had been wearing when he left. Lang also had a burn on his shoulder, a gash on his hand, and other bruises. Lang told his mother that the burn was a cigarette burn.
{¶ 324} Before he saw his father, Lang had been treated with Depakote, Lithium, and Risperdal for depression and other conditions. Carter made sure that he took these medications on a regular basis. However, Lang did not continue to take them when he was with his father, because Edward did not obtain refills for the prescriptions.
{¶ 325} After returning home, Lang was withdrawn. Lang told Carter that he was fine and did not want to talk to her about what had happened. But Carter learned from her son, Mendez, that Edward had sexually abused Lang.
*808 {¶ 326} Lang has received extensive psychiatric and other treatment. Carter testified, "He stayed in the Bridges Program twice for 90 days. He stayed at Woodburn Respiratory [sic] Treatment Center for a year. And he stayed off and on at * * * [the] Sheppard Pratt Center [a crisis center] 28 times."
{¶ 327} Lang has one child, Kanela. Carter states, "He has taken care of his daughter ever since the mother was pregnant. * * * [There] was nothing that he wouldn't do for her and for the baby."
{¶ 328} Lang did not finish high school. He dropped out of the 11th grade and "went to take care of his baby's mother." Lang got a job working for the census department. In June 2006, Lang moved to Canton.
{¶ 329} As a final matter, Carter told the jury, "We all are suffering. * * * I never sat here and said my son was a perfect child. I never sat here and said that my child had a good life or a bad life. But I am asking you not to kill my child."
Lang , 954 N.E.2d at 643-44.
After Carter and Robinson testified, the prosecutor began his closing argument. He attempted to minimize the testimony of Lang's mother and half-sister, stating, "We know now that Eddie was born in Baltimore, Maryland, that until the age of 10 life seemed to be pretty good. From 10 to 12 his life was allegedly not so good." The prosecutor continued to discredit Lang's mitigation narrative, "[W]e know that his mother on numerous occasions sought help for Eddie, but Eddie didn't take his medication." In his charge to the jury, the prosecutor stated that the "aggravating circumstances that you found to exist beyond a reasonable doubt now outweigh those mitigating factors by that same burden."
In response, Koukoutas started his closing argument by reminding the jury of the seriousness of the death penalty. He returned to his theme that the jurors had learned about Lang as a person. "You learned that he had siblings, that what like the prosecutor said, pretty normal childhood up until he was ten." Koukoutas depicted Lang's mother in a relatively positive light, in contrast to Lang's abusive father. He asked the jury to consider how she was ashamed to testify that she had exchanged sex for rent to Lang's father-a drug user and a convicted child molester who beat her while she was pregnant with Lang. Koukoutas said no one would ever know exactly what happened to Lang during the two years he was with his father, but he speculated that Lang's father may have "molested him or even pimped him out to get drugs." Koukoutas stressed the impact, both physical and psychological, on Lang of those two years when he was kept away from his mother. In conclusion, Lang's counsel acknowledged the loss to the victims' families, and he urged the jury to consider the consequences to Lang and his family.
II. Procedural History
The jury deliberated for approximately eleven hours before recommending that Lang be sentenced to death for the aggravated murder of Cheek and to life imprisonment for the aggravated murder of Burditte. The trial court adopted this recommendation and sentenced Lang accordingly.
3
On direct appeal, Lang presented twenty-one propositions of law, arguing among other things: juror bias and ineffective assistance of counsel for failing to
*809
adequately prepare and present mitigation evidence. The Ohio Supreme Court affirmed Lang's convictions and sentence of death.
State v. Lang
,
In 2008, while his direct appeal was pending, Lang filed a state post-conviction petition, which raised fourteen claims, including several that alleged ineffective assistance of counsel at sentencing. The trial court dismissed Lang's petition and denied his requests for discovery and an evidentiary hearing. The Ohio Court of Appeals affirmed the trial court's denial of the post-conviction petition.
State v. Lang
, No. 2009 CA 00187,
In 2012, Lang filed a notice of intent to initiate the underlying federal habeas action. Lang's new counsel filed a
We granted Lang an expansion of the COA to include three additional claims: Ground Three, ineffective assistance of trial counsel based on counsel's failure to question individual jurors about their conversations with a biased juror; Ground Four, ineffective assistance of appellate counsel based on counsel's failure to raise claims of juror bias on direct appeal; 4 and Ground Fourteen, ineffective assistance of trial counsel based on trial counsel's characterization of Lang's childhood as "normal." Therefore, the questions before us in this appeal are as follows:
(1) Whether Lang's due process rights and rights to an unbiased jury were violated when a juror who was related to one of the victims was seated on the jury.
(2) Whether trial counsel were ineffective for failing to question individual jurors about their conversations with the allegedly biased juror.
(3) Whether Lang's trial counsel provided ineffective assistance by failing to adequately and properly investigate, develop, and present significant mitigation evidence.
(4) Whether Lang's trial counsel were ineffective for characterizing Lang's childhood as "normal."
III. Standard of Review
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this case.
See
Moreland v. Bradshaw
,
IV. Juror Bias
Lang first claims that his constitutional right to an unbiased jury was violated because Juror 386 was seated, albeit briefly. Lang argues that "Juror 386 never should have been on the jury or given the opportunity to taint Appellant's jury. The most basic disqualification of a juror occurs when the juror has a familial connection to the case." He contends that the trial court erred by failing to immediately remove Juror 386 and instead waiting for the next break in the trial, permitting two witnesses to testify in the interim. Lang also argues that his trial counsel was ineffective for failing to individually voir dire the other jurors after Juror 386 was removed.
Lang raised the juror bias claim and the related claim of ineffective assistance of trial counsel on direct appeal. The Ohio Supreme Court held that Juror 386's presence on the jury before being excused did not taint the jury because Juror 386 assured the trial court that she had not talked to any of the other jurors about her relationship to Cheek, and the other jurors indicated that they had had no conversations with her about the matter.
Lang
,
Lang's post-conviction petition did not include any claim related to Juror 386. However, in his federal habeas petition, Lang once again argued that his Sixth Amendment right to an impartial jury was *811 violated by the presence of Juror 386. Likewise, he claimed his counsel was ineffective for failing to individually question the other jurors regarding Juror 386. The district court rejected these arguments, finding that the Ohio Supreme Court reasonably applied federal law in denying Lang's claim of juror bias. For the reasons that follow, we agree.
Under the standard established by the Supreme Court in
Remmer v. United States
, when there is evidence of possible juror bias, a defendant is entitled to a hearing with all interested parties present to determine the circumstances, the impact on the juror, and whether the information was prejudicial.
In cases applying
Remmer
and
Smith
, the habeas petitioner bears the burden to demonstrate that a juror was biased.
See
Sheppard v. Bagley
,
In
Phillips v. Bradshaw
,
In reviewing claims of juror bias in the habeas context, we bear in mind that: (1) the trial court must hold a hearing when the defendant alleges unauthorized contact with a juror; (2) no presumption of prejudice arises from the unauthorized contact; (3) the defendant has the burden of proving actual juror bias; and (4) juror testimony at the Remmer hearing is not inherently suspect.
Similarly, in
Carroll v. Renico
,
Nevertheless, Lang argues that he was entitled to relief under
*812
McDonough Power Equipment v. Greenwood
,
Lang also relies on
United States v. Corrado
,
In this case, the state court's rulings were not contrary to clearly established federal law. Once the trial court knew Juror 386's relationship to Cheek, it acted to prevent her from communicating with the other jurors and held a hearing to determine the effect of her presence on the jury.
See
*813
Courts enjoy leeway when applying a general standard.
See
Yarborough v. Alvarado
,
Furthermore, because Lang's juror bias claim lacks merit, there is no merit to his related claim of ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that counsel's performance was deficient and that deficient performance prejudiced the defense so as to deprive the petitioner of a fair trial.
See
Strickland v. Washington
,
V. Mitigation Evidence
Two claims of ineffective assistance of counsel at sentencing were certified for appeal. In Ground One of his habeas petition, Lang alleged that counsel failed to adequately and properly investigate, develop, and present significant mitigation evidence. In Ground Fourteen, he alleged that counsel was ineffective because, in closing argument to the jury, counsel characterized Lang's childhood up to age ten as "normal."
To prevail on these claims, Lang must do two things. First, he must establish a Sixth Amendment violation-that his lawyer performed well below the norm of competence in the profession and that this failing prejudiced his case.
Strickland
,
The Ohio Court of Appeals affirmed the trial court's denial of Lang's post-conviction petition.
Lang
,
The state court also held that even if counsel's performance was deficient, Lang was not prejudiced by counsel's performance. The court found that Lang's mother and half-sister presented a detailed picture of his youth, mental health problems, and abuse by his father. Id. Summarizing Lang's additional, post-conviction evidence, the Ohio Court of Appeals recounted Lang's father's physical and sexual abuse of Lang's mother, Lang's brother's physical and sexual abuse of Lang and his sister, and Lang's father's sexual, physical, and emotional abuse of Lang. Id. at *6-7. The court also found that, after the two years spent with his father, Lang began using drugs, was admitted to a psychiatric hospital, and attempted suicide. Id. at *7. Moreover, Lang's mother abandoned him at times and did not ensure that he took his mood disorder medications. Id. Nonetheless, the Ohio Court of Appeals was unpersuaded that this "additional and more detailed evidence about the [Lang]'s upbringing and mental health issues would have created a reasonable probability that the jury would have recommended a life sentence, rather than the death penalty, for the Marnell Cheek killing." Id. at *9.
The district court agreed, holding that the Ohio Court of Appeals' denial of Lang's claims was not contrary to or an unreasonable application of Strickland . For the reasons articulated by the district court, we also find that the Ohio court reasonably determined that defense counsel's performance at the mitigation hearing was not ineffective.
As a threshold matter, Lang did not submit affidavits from his trial counsel, and both the post-conviction trial court and the district court denied Lang an evidentiary hearing. Thus, there is no direct evidence of Lang's trial counsel's mitigation strategy. However, invoices filed with the trial court indicate that counsel began preparing for the mitigation hearing soon after taking Lang's case. Counsel hired a mitigation investigator and a psychologist and spent several hundred hours preparing for trial.
Lang's post-conviction materials suggest that counsel either chose not to present or perhaps overlooked other evidence about Lang and his family, but there are reasonable strategic reasons for counsel to have chosen not to present these materials. This additional evidence could have opened the door to evidence of bad character on cross-examination and rebuttal. Reports from various social services agencies documented how Lang's mother neglected, abused, and abandoned Lang and his siblings. A psychologist's expert report filed by Lang in his post-conviction materials indicated that Lang had no friends, threatened people, set fires, made improper sexual advances, was too violent to be placed in juvenile detention, and did not comply with mental health treatment. Thus, counsel's choice to have only Lang's mother and sister testify at the mitigation hearing and to not call a psychologist may have been strategic.
There is a strong presumption that an attorney's attention to some issues at the exclusion of others reflects tactics rather than neglect.
See
Yarborough
, 540 U.S. at 8,
Moreover, Lang bears the burden of proof to show that his counsel made decisions without adequate knowledge.
See
Strickland
,
As we recently held in
Caudill v. Conover
,
Finally, we turn to Lang's argument that his counsel performed both deficiently and prejudicially when, during closing argument, he mischaracterized Lang's early childhood as "normal." Lang argues that "[a] childhood filled with horrific abuse and violence is not normal." We do not dispute this. As the post-conviction evidence revealed, Lang's childhood prior to age ten was anything but normal. However, Lang's mitigation evidence centered on Lang's experiences at the hands of his father who, as Lang's mother testified, was absent until Lang was ten years old. Lang's counsel echoed the prosecutor's characterization of Lang's early life as "normal" presumably to avoid blaming Lang's mother-his primary mitigation witness-for his client's difficulties. Therefore, the Ohio Supreme Court reasonably concluded that counsel's approach did not result in ineffective assistance of counsel because it "allowed the defense to focus the jury's attention on defense counsel's argument that addressed Lang's abuse after his father abducted him."
Lang
,
For the foregoing reasons, the district court's denial of Lang's petition for a writ of habeas corpus is AFFIRMED .
DISSENT
KAREN NELSON MOORE, Circuit Judge, dissenting.
Because I believe that Lang's constitutional right to an unbiased jury was violated and also that he has established his two ineffective-assistance-of-counsel claims arising out of the mitigation phase of his trial, I respectfully dissent from the majority's denial of relief to Lang on Grounds One, Two, and Fourteen.
I. STANDARD OF REVIEW
Lang's petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, a federal court may not grant a writ of habeas corpus unless the state court's adjudication of the claim on the merits was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court"; or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
II. JUROR BIAS
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. VI. This right is applicable to the states via the Fourteenth Amendment.
Morgan v. Illinois
,
Lang argues that his constitutional right to an unbiased jury was violated when the victim Marnell Cheek's niece by marriage was seated on his jury. I agree.
A. Juror 386
On the morning of the second day of trial, defense counsel informed the court that Juror 386 had been observed nodding and smiling to individuals in the public *817 gallery. R. 22-2 (App'x Vol. 28 at 517) (Page ID #7352). In response, the prosecutor stated that Marnell Cheek's father had approached him and revealed that Juror 386 was Cheek's niece by marriage. Id. at 517-18 (Page ID #7352-53). The trial court said that it would investigate this issue at the next break. Id. at 518 (Page ID #7353).
When questioned, Juror 386 confirmed that the victim Marnell Cheek was her step-father's sister. Id. at 593 (Page ID #7428). Juror 386 claimed that she had not discussed the case with anyone and that the only information she had about the case was what she had read in the newspaper. Id. at 594, 598 (Page ID #7429, 7433). However, Juror 386 admitted that she had learned of her aunt's death from her grandfather and that she had attended her aunt's viewing and funeral with her step-father. Id. at 596-99 (Page ID #7431-34). She also admitted that she had failed to disclose this information to the court. Id. at 593 (Page ID #7428); see also R. 22-1 (App'x Vol. 27 at 227-39) (Page ID #6551-63) (portion of voir dire in which the court asked the prospective jurors about any connections to the criminal justice system, including whether they knew a victim of a crime, and Juror 386 remained silent); R. 55-1 (Juror Questionnaires Part 1a at 99-109) (Page ID #10969-79) (Juror 386's questionnaire in which she stated that no relative had ever been a victim of a crime, she had no personal knowledge of Cheek's death, and she had not discussed Cheek's death with anyone). Juror 386 did deny discussing her relationship to Cheek with the other jurors. R. 22-2 (App'x Vol. 28 at 597-98) (Page ID #7432-33).
At this point, the prosecutor moved to remove Juror 386 for cause, and defense counsel agreed. Id. at 601 (Page ID #7436). The trial court removed Juror 386 from the jury panel, id. at 603 (Page ID #7438), and proceeded to question the remaining jurors as a group, id. at 605 (Page ID #7440). The court first informed the jurors that Juror 386 "may have had a relative relationship with either a witness or a party or somebody that was involved in the case." Id. at 606 (Page ID #7441). Next, the court asked the jurors as a group whether Juror 386 had discussed her relationship with someone involved in the case with any of them; the court stated that "I will take your silence if none did." Id. All the jurors remained silent and the court then proceeded with the trial. Id.
B. Inadequate Remmer Hearing
Lang raised his claim for relief predicated on Juror 386 on direct appeal in front of the Supreme Court of Ohio.
State v. Lang
,
Lang argues that the Supreme Court of Ohio unreasonably applied
Remmer v. United States
,
The trial court's inquiry into juror bias in this case was less than minimal. The court asked the remaining jurors as a group one question-had Juror 386 discussed a potential relationship with someone involved in the case with them-and took silence as a no. R. 22-2 (App'x Vol. 28 at 606) (Page ID #7438). This question was overly narrow because it focused only on whether Juror 386 had revealed her relationship to Cheek to her fellow jurors, and not on whether Juror 386 had tainted the remaining jurors' ability to be impartial through other biased comments. Furthermore, if a juror were hesitant, being forced to speak up in front of the rest of the jury panel would have a depressing effect on his or her ability or willingness to be forthcoming. Certainly, as the majority admits, Maj. Op. at 812-13, if this case were before us on direct review, our precedent compels us to conclude that this one-question hearing was constitutionally inadequate.
United States v. Corrado
,
The majority looks to
Carroll v. Renico
,
Phillips v. Bradshaw
,
The investigations in Carroll and Phillips varied in degree and kind from what occurred in this case. A sufficient investigation *819 into potential juror bias must proceed along multiple dependent axes. A trial court cannot determine the prejudicial impact of potential extraneous influence upon a juror until it discovers all the means by which that extraneous influence may have touched the juror. It would be akin to a doctor trying to determine if a patient had caught an infectious disease from an afflicted acquaintance by asking only if the patient had shared a drink with that person, and not determining whether the two individuals had other interactions through which the disease could be communicated. Here, the trial court's one question directed to the entire panel did not sufficiently determine the potential scope of the extraneous influence on the remaining jurors, because it was such a limited question. Juror 386 may not have mentioned her relationship to the victim Cheek, but she could have made other prejudicial comments. The remaining jurors were not even aware to whom Juror 386 was related, so may not have realized that any other comments she may have made were inappropriate. The remaining jurors' silence to the trial court's one question leaves us unable to determine anything about the true extent of Juror 386's prejudicial impact. Therefore, the trial court could not have sufficiently investigated the effect of the tainted Juror 386 on the remaining jurors' ability to remain impartial.
The
Remmer
hearings in
Carroll
and
Phillips
may have satisfied the Supreme Court's requirement that a trial court "should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate,"
Remmer
,
Furthermore, to the extent that the Supreme Court of Ohio deemed the one-question hearing sufficient under
Remmer
because "[n]either the state nor the defense counsel objected to the questioning or requested an additional inquiry,"
Lang
,
*820
Smith
,
III. MITIGATION PHASE
The mitigation phase of a capital case is premised on "the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background ... may be less culpable than defendants who have no such excuse."
Foust v. Houk
,
Before this court, Lang asserts two claims arising from the mitigation phase of his trial: (1) ineffective assistance of counsel due to the failure properly to investigate, develop, and present mitigation evidence; and (2) ineffective assistance of trial counsel based on the characterization of Lang's childhood as "normal." Lang presented both these ineffective-assistance-of-counsel claims to an Ohio state court.
Lang
,
A. The Standard for An Ineffective-Assistance-of-Counsel Claim
To prevail on an ineffective-assistance claim, Lang must meet the two-pronged standard articulated in
Strickland v. Washington
,
*821 B. The Mitigation Phase
At the mitigation phase of Lang's trial, his trial counsel called Lang's half-sister and his mother as mitigation witnesses. R. 22-3 (App'x Vol. 29 at 339-71) (Page ID #8015-47). His half-sister, Yahnena Robinson, testified that Lang's father, known as Coffee, abused their mother and was a drug addict. Id. at 341 (Page ID #8017). She described her relationship with her brother as "close" and said that they "had a typical brother sister relationship" before Lang was ten years old. Id. Robinson then explained that when Lang was ten, he went to visit his father in Delaware for what was supposed to be a two-week visit. Id. at 342-43 (Page ID #8018-19). According to Robinson, it took her mother two years to recover her son and during that time Robinson had no contact with her brother. Id. at 343-44 (Page ID #8019-20). After their mother found Lang and brought him back to Maryland, Robinson described Lang's emotional state as noticeably different. Id. at 344-45 (Page ID #8020-21).
After Robinson testified, Lang's trial counsel called Lang's mother, Tracy Carter. Id. at 348 (Page ID #8024). She told the jury that she met Coffee when she was eighteen; he was her landlord and, because she was a single, teenage mother with no money, she traded sex for free rent. Id. at 349 (Page ID #8025). Carter testified that Coffee was a violent drug addict. Id. at 349-50 (Page ID #8025-26). According to Carter, Coffee was around for some period of time after Lang was born, but he did not reconnect with his son until Lang was ten. Id. at 350 (Page ID #8026). In the interim, Coffee was incarcerated for setting Carter's apartment on fire, raping Carter, and molesting a child. Id. When Lang was ten, his father gained court-ordered visitation rights. Id. at 351 (Page ID #8027). Carter testified that Lang was supposed to visit his father for two weeks in Delaware, but Coffee kept Lang from Carter for two years. Id. at 351-55 (Page ID #8027-31). When Carter was finally reunited with Lang, he was wearing the same clothes and shoes he had worn when he left her two years prior and weighed less than ninety pounds. Id. at 355 (Page ID #8031). Lang had a cigarette burn on his shoulder, a gash on his hand, and bruises on his body. Id. at 356 (Page ID #8032). Furthermore, his emotional problems-which he had suffered from prior to this period-were exacerbated, and Carter testified that Lang visited a psychiatric facility twenty-eight times, including multiple times as an inpatient, during his childhood. Id. at 356-60 (Page ID #8032-36). Carter suspected that Coffee had sexually abused Lang, but testified that Lang had never admitted this to her. Id. at 361-61 (Page ID #8037-38).
Although Lang's mother and sister painted a fairly dire picture of Lang's childhood, their testimony did not accurately portray the extraordinary extent of the abuse and deprivation Lang endured as a child. In its decision on Lang's post-conviction appeal, the Ohio Court of Appeals summarized much of the mitigation evidence not presented by Lang's trial counsel.
Lang
, No. 2009 CA 00187,
Furthermore, trial counsel did not develop the facts of Lang's abduction by Coffee during Carter's testimony. "During the time [Lang] lived with his father, he endured physical, sexual, and emotional abuse. [Lang] was forced to stay in his bedroom for days at a time, and he was repeatedly beaten with anything in reach. In addition to enduring the physical abuse, [Lang] was falsely told by Coffee that his mother was dead. [Lang], at this young age, began using drugs." Id. (internal citations and quotation marks omitted).
Trial counsel also failed to present evidence that Lang's older brother physically and sexually abused Lang and his sister, Robinson. Lang's brother hit Lang in the head with a baseball bat, and "acted out sexually towards [Lang and his sister], ordering them to perform oral sex on him." Id . Lastly, Lang's trial counsel did not present to the jury evidence that Carter frequently abandoned Lang and his siblings, leaving her children to care for themselves. Id. at *6.
C. Ineffective Investigation, Development, and Presentation of Mitigation Evidence
Lang first argues that his trial counsel's investigation, development, and presentation of mitigation investigation was constitutionally inadequate. I agree.
Trial counsel began preparing for the mitigation phase in December 2006, requesting funds for a private investigator, psychological expert, and defense mitigation expert. R. 17-1 (App'x Vol. 1 at 1-23) (Page ID #195-217). However, the record shows that trial counsel did not obtain much of the corroborating documentary mitigation evidence until too late. On July 9, 2007, the expert psychologist sent a fax to trial counsel inquiring whether they had obtained Lang's records yet. R. 19-3 (App'x Vol. 13 at 69) (Page ID #2852) ("No Lang records yet, I gather ... ? ? ?" (ellipses in original) ). The record indicates that the psychologist did not receive the relevant records until the day after the mitigation phase, when the jury had already recommended that Lang be executed for the murder of Cheek. Id. at 70 (Page ID #2853). Additionally, the private investigator for the defense received only three-quarters of Lang's foster care records less than a week before the mitigation phase and it appears he may not have received the remaining records prior to the hearing. Id. at 68 (Page ID #2851). The investigation and preparation of mitigation witnesses was similarly sparse. His mother Carter-the supposed lynchpin of the mitigation strategy-had one twenty-five minute meeting with the mitigation specialist less than ten days before trial and met substantively with trial counsel only once: the day before she testified. R. 18-4 (App'x Vol. 9 at 98) (Page ID #2451). Despite these deficiencies, trial counsel repeatedly represented to the trial court that the investigation into mitigation evidence was proceeding or had proceeded smoothly. R. 22-1 (App'x Vol. 27 at 124) (Page ID #6448); R. 22-3 (App'x Vol. 29 at 378) (Page ID #8054); see also R. 22-1 (App'x Vol. 27 at 92) (Page ID #6416).
As the majority recognizes, "Lang's post-conviction materials suggest that counsel either chose not to present or perhaps overlooked other evidence about Lang and his family." Maj. Op. at 814. Either possibility leads to the conclusion that the performance of Lang's trial counsel during the mitigation phase was constitutionally deficient.
First, to the extent the record demonstrates that trial counsel "overlooked other evidence about Lang and his childhood,"
*823
this constitutes constitutionally inadequate performance. The Supreme Court has relied on the American Bar Association's Guidelines on death-penalty representation in order to determine what constitutes objectively reasonable performance.
Wiggins v. Smith
,
Second, if trial counsel's decision to present an incomplete picture of Lang's childhood is justified as strategic, Maj. Op. at 814-15, it can only be done so if it was a reasoned decision based on a complete investigation.
Terry Williams
,
Even if trial counsel's choice to present such a minimal description of Lang's life was an informed decision based on an adequate investigation, the Ohio Court of Appeals' rationalization of the trial counsel's strategy is insufficient.
Harrington v. Richter
,
Lang's counsel failed to present any evidence that Lang was a witness to and a victim of Coffee's physical and sexual violence from a very young age, as well as
*824
evidence that Lang's older brother physically and sexually abused him.
Lang
, No. 2009 CA 00187,
Furthermore, the state court's holding that the failure to present this evidence was not prejudicial is an unreasonable application of clearly established federal law. The state court held that because the omitted evidence was merely "additional and more detailed," it would not have "created a reasonable probability that the jury would have recommended a life sentence."
Lang
, No. 2009 CA 00187,
Second, the state court's characterization of the omitted evidence as cumulative is unreasonable. Lang's trial counsel failed at the mitigation phase to present any evidence of the sexual and physical abuse of Lang starting from when he was a toddler at the hands of both his father and brother. Thus, any evidence about this abuse could not have been cumulative.
See
Jells v. Mitchell
,
Consequently, there is a reasonable probability that a juror-especially one sitting on a jury that had recommended life imprisonment and not death for the murder of the other victim, Jaron Burditte-would have weighed the mitigation evidence differently if he or she had heard the true nature and extent of the deprivations of Lang's childhood. 5 Cf.
*825
Sears
,
D. Ineffective Closing Argument at the Mitigation Phase
During the closing argument of the mitigation phase, Lang's counsel described Lang's childhood as "pretty normal ... up until he was ten." R. 22-3 (App'x Vol. 29 at 389) (Page ID #8065). Lang argues that, by making this statement, his trial counsel was constitutionally ineffective because they misrepresented the evidence. Appellant Br. at 53. On direct review, the Supreme Court of Ohio held that this statement was not a misrepresentation of the evidence and that it "maintained defense credibility and allowed the defense to focus the jury's attention on defense counsel's argument that addressed Lang's abuse after his father abducted him."
Lang
,
The warden also acknowledges that Lang did not have a "normal" childhood prior to age of ten, and instead centers his argument on the Supreme Court of Ohio's conclusion that this statement was not an inaccurate summary of the mitigation evidence that was actually presented. Appellee Br. at 49. Even considering the paucity of evidence presented regarding Lang's life prior to age ten, the state court's conclusion that the description of Lang's early childhood as "normal" was true strains credulity-as the majority recognizes, Maj. Op. at 816. Lang's mother, Carter, testified that Coffee was physically abusive towards her when she was pregnant with Lang. R. 22-3 (App'x Vol. 29 at 350) (Page ID #8026). Lang's sister, Robinson, corroborated the fact that Coffee was a physically abusive drug addict. Id. at 341 (Page ID #8017). Carter testified that Coffee was present in Lang's life after he was born, before he was incarcerated for setting her apartment on fire, raping her, and molesting a child. Id. at 350 (Page ID #8026). She also explained that Lang suffered from depression and behavioral problems prior to his abduction at age ten, and that he was prescribed Depakote, lithium, and Respiradol. Id. at 357 (Page ID #8033). A characterization of even this partial presentation of the level of abuse and mental illness endured by Lang prior to the age of ten as "normal" is absurd.
Furthermore, the Supreme Court of Ohio's post-hoc rationalization of this argument as strategically designed to "focus the jury's attention on defense counsel's argument that addressed Lang's abuse after his father abducted him,"
Lang
,
Because it held that Lang's trial counsel was not constitutionally deficient for making this statement during closing argument, the Supreme Court of Ohio did not reach
Strickland
's second prong: prejudice.
Lang
,
Lang has satisfied both prongs of Strickland : He has demonstrated that his counsel's erroneous characterization of his early childhood during closing arguments fell below an objectively reasonable standard, and there is a reasonable probability a juror would have reached the opposite decision with regards to the imposition of the death penalty in the absence of this deficiency. Consequently, I respectfully dissent from the majority's contrary holding.
IV. CONCLUSION
Although our habeas review is deferential,
*827 And in trial counsel's final argument to the jury prior to this sentence of death, counsel falsely described Lang's horrific childhood as "normal."
If the majority is correct that our constitutional rights to an impartial jury and legal representation are so minimal that Lang's trial was constitutionally acceptable, then this case is more about the parsimonious interpretation of our constitutional protections than about the reasonableness of executing a person following this paucity of due process.
Caudill v. Conover
,
However, Lang did not brief one of the claims certified for appeal: the ineffective assistance of appellate counsel. Therefore, this claim is waived.
See
Elzy v. United States
,
Additional information about the facts underlying the crime can be found in the Ohio Supreme Court's opinion affirming Lang's conviction on direct appeal.
State v. Lang
,
The trial court also sentenced Lang to a ten-year term of imprisonment for the aggravated-robbery count and merged the gun specifications with an additional three-year term of imprisonment.
Because Lang did not brief Ground Four, he has waived any claim that his appellate counsel were ineffective when they failed to argue, on direct appeal, that trial counsel should have requested additional questioning of the jurors.
On direct appeal, the Ohio Supreme Court found that Lang's counsel thoroughly prepared for the penalty phase by hiring a mitigation expert, a psychologist, and a criminal investigator several months before trial and by requesting social service records.
Lang
,
Lang makes other arguments with respect to this claim, Appellant Br. at 19-20, but I agree with the majority that these arguments are inapposite, Maj. Op. at 811-12.
The majority also states that the trial court could reasonably rely on the testimony of Juror 386 that she did not mention her relationship to Cheek to her fellow jurors because her testimony was not "inherently suspect." Maj. Op. at 812-13. This statement strains credulity. Certainly, the Supreme Court has stated that the testimony of a juror at a
Remmer
hearing is not "inherently suspect."
Smith
,
The majority implies that if Lang's trial counsel had presented evidence of Lang's childhood trauma prior to his abduction, this would have harmed his mother's credibility as a mitigation witness. Maj. Op. at 815-16. This conclusion is puzzling. If Carter's credibility was not impugned by her failure to protect Lang from Coffee's abduction and rescue him, why would her credibility be hurt by her failure to protect Lang from the repeated physical and mental trauma to which he was exposed prior to his abduction? Alternatively, if the concern is that the jury would blame Carter for Coffee's abuse of Lang, then this potential opprobrium was already triggered by introducing some evidence of the abuse.
That some of this evidence may have opened the door to the state's introduction of adverse evidence in response does not alter this conclusion.
See
Harries v. Bell
,
The prejudice arising from the failure to introduce this evidence was compounded by trial counsel's misrepresentation of Lang's early childhood as "normal." See Section III.D infra .
Reference
- Full Case Name
- Edward LANG, Petitioner-Appellant, v. David BOBBY, Warden, Respondent-Appellee.
- Cited By
- 43 cases
- Status
- Published