John Glenn v. Arthur Tate, Jr., Warden

Citation: 71 F.3d 1204Docket: 93-3568

Court: Court of Appeals for the Sixth Circuit; February 26, 1996; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

John Glenn, an Ohio prisoner sentenced to death for aggravated murder, appealed the denial of his habeas corpus petition, claiming ineffective assistance of counsel during the sentencing phase. Under Ohio law, a death sentence requires the jury to find, beyond a reasonable doubt, that aggravating circumstances outweigh mitigating ones. Key mitigating evidence included Glenn's mental impairments, stemming from global brain damage sustained before birth, and his classification as mentally retarded in school. Expert testimony regarding his brain damage was not pursued by his attorneys, who also failed to counter expert evidence suggesting the crime was not influenced by mental incapacity.

The court determined that the attorneys’ significant errors rendered them ineffective under the Sixth Amendment, leading to an unreliable sentencing outcome. While the court upheld the murder conviction, it ordered that a writ of habeas corpus be granted unless Glenn is resentenced. The prosecution had presented strong evidence against Glenn for the shooting of Deputy Sheriff John Litch, Jr., during an attempted escape orchestrated by his brother, Robert Glenn, who had been in custody. The shooting occurred when a car struck the deputy’s vehicle, and Glenn shot him at close range with a shotgun, resulting in the deputy's immediate death.

Robert Glenn and an accomplice fled the scene following the shooting of Deputy Litch. John Glenn was arrested hours later at his girlfriend Alseen Lanier's home, where he confessed to her about killing the officer, instructing her to keep it secret. Concurrently, Otis Simmons, an acquaintance of John, informed a police officer that John had mentioned wanting to escape his brother Robert earlier that day. The murder occurred shortly after Ohio's 1981 death penalty law was enacted. A grand jury indicted John Glenn, then 19, for aggravated murder, specifically noting the victim was a peace officer, which allowed for the death penalty under Ohio law.

Due to extensive media coverage, the Mahoning County Common Pleas Court struggled to seat a jury, leading to a change of venue to Portage County. Testimony from Lanier and Simmons, along with chemical evidence indicating gunshot residue on John Glenn's hands and matching plaster scrapings from Robert's leg cast found in a car he drove, contributed to the prosecution's case. The jury convicted John Glenn, who was subsequently sentenced to death following a brief evidentiary hearing.

After exhausting state appeals and post-conviction remedies, John Glenn sought a writ of habeas corpus in federal court, which was denied. His primary argument on appeal was ineffective assistance of counsel during the sentencing phase, requiring proof of both unreasonable performance and resulting prejudice, as established in Strickland v. Washington. The state court of appeals acknowledged inadequate performance but upheld the denial of relief due to a lack of demonstrated prejudice. The federal district court also focused solely on the prejudice aspect without addressing the performance issue, necessitating a de novo review of the entire question.

Under Ohio's death penalty statute, juries must consider aggravating circumstances alongside the offender's history, character, background, and any mental health issues that might affect culpability. In the case of John Glenn, the jury received minimal information regarding his background and mental health, which could have influenced their decision on sentencing. The defense counsel, despite being experienced and having eight months to prepare, failed to adequately develop mitigating evidence before the trial's sentencing phase. This lack of preparation was deemed objectively unreasonable, as it likely prevented the presentation of crucial witnesses and evidence. 

Only one lawyer made some post-verdict efforts, primarily involving a videotape intended to provide context about Glenn’s upbringing. However, the admissibility of this tape was questionable, and ultimately, it was excluded as hearsay. Key individuals, including Glenn's mother and former employer, were not called to testify, resulting in the jury only hearing from a few witnesses with limited connections to Glenn. Consequently, the defense presented a weak case for mitigation, which significantly impacted the jury's ability to consider alternatives to the death penalty.

Testimony addressed a statutory mitigation factor concerning John Glenn's minimal criminal history, as outlined in Ohio Rev.Code Sec. 2929.04(B)(5). Glenn made a brief unsworn statement asserting his innocence and opposition to the death sentence. Notably, no family members testified, although some were willing to do so. The prosecutor highlighted the lack of mitigation evidence presented to the jury, attributing this deficiency to Glenn's lawyers' inadequate preparation. The defense attorneys failed to investigate Glenn's social history, neglecting to speak with family members, examine school and medical records, or consult his probation officer. Although they arranged for competency tests prior to trial, they only attempted to secure expert witnesses for mitigating evidence after the conviction. 

Had the defense conducted a thorough investigation, they could have presented evidence of Glenn's perceived intellectual limitations and troubled upbringing, including a history of educational struggles, childhood abuse, and hyperactivity linked to neurological impairment. Post-sentence expert evaluations revealed Glenn's borderline intelligence (I.Q. of 73) and neurological issues, likely stemming from complications during his mother's pregnancy. Dr. James Tanley, a neuropsychologist, testified that Glenn lacked substantial capacity to conform his behavior to legal standards and suggested he was a follower in the criminal scheme rather than its architect.

Evidence indicated that John Glenn was a follower rather than a leader, as noted by his probation officer who observed Glenn's difficulties in asserting independence from negative peer influences. The officer highlighted Glenn's willingness to engage in dangerous behavior if prompted by peers, reflecting his need for attention, primarily from his brother Robert. The jury was not informed of Glenn's classification as mentally retarded, his susceptibility to peer influence, or a neurological impairment likely resulting from anesthesia administered to his mother during pregnancy.

Nine days before the sentencing hearing, Glenn's attorney requested a medical examination under Ohio Revised Code Section 2929.024, which allows for expert services at government expense if the defendant is indigent. However, the defense mistakenly acquiesced to the prosecution's suggestion to appoint experts under a different statute, Ohio Rev. Code Secs. 2929.03(D)(1) and 2947.06. This led to the appointment of Dr. D.V. Ramani and Dr. James W. Siddall, who were briefed by the prosecution but not by the defense, resulting in a lack of communication between the defense and the experts.

Dr. Siddall conducted a psychological evaluation of Glenn and prepared a report asserting Glenn's competence to stand trial. This report assessed mitigating circumstances based on prosecutorial documents, ultimately concluding that Glenn's offense was not attributed to psychosis, mental retardation, or other significant psychological issues—an assessment problematic in light of the information not presented to the jury.

Dr. Ramani's report, resulting from an examination of John Glenn, lacked depth and concluded that there were no mitigating circumstances for Glenn, a statement detrimental to the defense. The trial court denied a request to redact this damaging conclusion before the report was presented to the jury. Defense counsel's reliance on court-appointed experts, rather than obtaining independent defense experts as allowed under Ohio Rev. Code Sec. 2929.024, contributed to this issue. The unredacted reports from Drs. Ramani and Siddall went to the jury without any indication that their conclusions could be disputed. Furthermore, Glenn had the statutory right to question the authors of these reports under oath, as per Ohio Rev. Code Sec. 2947.06, but the doctors were not called to testify. The defense's lack of preparation likely hindered effective cross-examination of the doctors regarding their damaging conclusions. 

These circumstances affected the jury's decision-making reliability. Under the Strickland test, a petitioner must demonstrate a "reasonable probability" that errors by counsel affected the outcome of the case, sufficient to undermine confidence in the result. In this case, the jurors were misled by the unchallenged report suggesting Glenn's crime was not influenced by mental retardation or organic brain disease, factors that typically mitigate culpability. The failure of Glenn's counsel to highlight his mental impairments and their potential role in his actions was both unreasonable and prejudicial, undermining the integrity of the sentencing process.

Sister circuits have consistently found prejudice in sentencing when counsel fails to present critical evidence regarding mental history and capacity. Cases such as Brewer v. Aiken and Stephens v. Kemp illustrate this, showing that the absence of such evidence can clearly result in prejudice. For instance, in Blanco v. Singletary, the failure to present evidence of brain damage was deemed to meet the prejudice requirement. Similarly, in Loyd v. Whitley, the lack of mitigating evidence regarding mental defects undermined confidence in the outcome. The court acknowledges that concluding there was no prejudice in this case would conflict with other circuit rulings. 

Furthermore, under the Strickland standard, the court finds clear prejudice in Glenn's case. Although Glenn also claims constitutional errors related to jury representation and ineffective assistance of counsel during his appeals, these arguments are rejected, aligning with the district court's reasoning.

The district court's judgment affirming the denial of habeas relief is upheld concerning the constitutionality of Glenn's conviction. However, the sentence of death is reversed, and the case is remanded for the issuance of a writ of habeas corpus, allowing the state to impose a new sentence within a reasonable timeframe.

Judge Siler concurs with the affirmation of Glenn's conviction but dissents regarding the effective assistance of counsel in the sentencing phase, advocating for the upholding of the district court's denial of the writ. The majority identifies a lack of evidence presented during sentencing that could have highlighted Glenn's personal history and mental capacity, which Siler disputes, suggesting that speculation about potential witnesses' impact is unfounded.

Defense counsel prepared a videotape for the sentencing phase, demonstrating strategic foresight. While the majority opinion suggests that counsel should have sought a pre-trial ruling on the videotape's admissibility, the likelihood of the trial court granting such a ruling remains speculative, as judges often avoid making prospective evidentiary decisions. The Ohio Court of Appeals noted some basis for admitting the videotape but ultimately deemed its exclusion a harmless error, as similar mitigation evidence was provided through other defense witnesses. The Ohio Supreme Court affirmed this view, indicating that the testimony of Glenn's mother and employer would have been cumulative.

During the sentencing phase, the jury reviewed reports from two doctors, a presentence report, and testimonies from a minister, teacher, and lawyer, in addition to Glenn's unsworn statement. The Supreme Court found that many aggravating and mitigating factors in Ohio law were not relevant to the case, but the jury was aware of Glenn's offense and background. Though Glenn had a troubled upbringing characterized by poverty and educational issues, there was no indication of significant changes in his life at age nineteen.

Concerns raised about defense counsel's failure to consult Glenn's family or review his medical and probation records were countered by the fact that such information would likely have only supported the existing evidence presented to the jury. Testimony from family members could have potentially harmed Glenn's case, as they had previously signed affidavits containing negative information about him. Additionally, a neuropsychiatrist confirmed Glenn's I.Q. findings but suggested that the theory linking Glenn's potential brain damage to his mother's surgery during pregnancy was speculative, lacking definitive medical certainty.

Evidence of brain damage was deemed less mitigating than Glenn's intellectual disability, as Dr. Siddall found that the offense was not due to his retardation or any mental illness, while Dr. Tanley disagreed. The Strickland standard does not require attorneys to seek out all potential favorable expert testimony. The defense counsel's initial request for a medical examination under Ohio Rev.Code Sec. 2929.024, later followed by appointments under Secs. 2929.03(D)(1) and 2947.06, does not signify any error since both statutes provide for expert services, albeit in different contexts. Once a defendant undergoes mental evaluations, the jury may learn of the expert conclusions, a practice deemed constitutional. If the defense counsel found the expert conclusions unsatisfactory, they faced the dilemma of either requesting new experts or presenting existing findings, potentially leading to claims of ineffective assistance had they opted not to introduce the expert opinions during sentencing.

Two pretrial evaluations by Dr. Kayne and Dr. Nalluri regarding Glenn's competency and possible insanity defense were not presented during sentencing, despite their potential corroborative value. These reports indicated Glenn was competent to stand trial and did not have a mental illness, though he exhibited borderline intellectual functioning. The absence of these reports did not result in prejudice, as no significant mitigating factors were overlooked aside from those introduced by later-found experts. The court expressed no substantial doubt about the absence of prejudice, supporting the decision to affirm the ruling. Furthermore, it was noted that indigent defendants can utilize services under Sec. 2929.024 for their own benefit, allowing them discretion over the introduction of expert findings to the jury.

Mitigating circumstances in Mr. Glenn's case are difficult to ascertain from his own denial of involvement. However, investigation documents imply that he was aware the victim was a law enforcement officer on duty and suggest his intent to kill this officer, with no indication that the victim provoked or assisted in the offense. During a psychological examination, Mr. Glenn was found well-groomed, cooperative, and oriented, with intact cognitive functions and adequate judgment, despite a reported IQ in the 75th percentile, which was not deemed severe enough to impair his day-to-day management. The dissent raises a hypothetical regarding the appointment of experts under Sec. 2929.024, noting that competent defense counsel would not submit damaging reports from experts like Drs. Ramani and Siddall without seeking alternative evaluations. Dr. Ramani acknowledged Glenn's mild intellectual disability but overstepped by declaring a lack of mitigating circumstances, despite the jury not having access to Glenn's complete psychological history. The trial court likely would have denied a request for an additional mental evaluation by a defense-chosen expert at state expense.