Thomas Warren Whisenhant appeals the denial of his federal habeas petition under 28 U.S.C. § 2254, following his conviction and death sentence for the 1976 murder of Cheryl Lynn Payton. Whisenhant raises four claims: (1) ineffective assistance of counsel during his 1981 trial for failing to present an insanity defense; (2) failure of the state to disclose exculpatory evidence during both the 1981 trial and a 1987 penalty phase; (3) prosecutorial misconduct during closing arguments in 1981; and (4) ex parte communications between the trial judge and prosecutors prior to the 1987 penalty phase, violating his right to an impartial judge. The court affirms the district court's denial of habeas relief.
Whisenhant's case background includes his abduction, rape, and murder of Payton, followed by a confession to the crime and two other murders. In his 1977 trial, he attempted to use an insanity defense, supported by psychiatric testimony, but was convicted. After an appeal led to a retrial in 1981, his defense team opted not to pursue the insanity defense, partly due to the trial court's denial of funds to hire psychiatrists. He was again convicted and sentenced to death. While the Alabama Court of Criminal Appeals affirmed his conviction, it reversed his death sentence due to prosecutorial errors during the sentencing phase.
The Alabama Supreme Court identified a non-harmless error in Whisenhant's case and remanded it for a new sentencing trial. In 1987, during a third penalty phase, Whisenhant presented evidence of mental illness, yet the jury again unanimously sentenced him to death. Both the Court of Criminal Appeals and the Alabama Supreme Court upheld this sentence. The U.S. Supreme Court denied his petition for certiorari. Subsequently, Whisenhant initiated state habeas corpus proceedings under Alabama Rule of Criminal Procedure Rule 32. During discovery, he obtained two FBI reports with speculative profiles of the unidentified murderer and a statement from his co-worker describing him as "weird." He amended his complaint in 1995 to include a Brady violation. Whisenhant later discovered a draft order for funds to hire a psychiatrist, which had been communicated to the trial judge without defense counsel's knowledge. This led him to claim judicial bias and seek recusal of the judge, who agreed to recuse himself to avoid any appearance of impropriety.
After the Rule 32 hearing, another judge denied the habeas petition entirely, a decision affirmed by the Alabama Court of Criminal Appeals and subsequently by the Alabama Supreme Court. Exhausting state post-conviction remedies, Whisenhant filed a federal habeas petition under 28 U.S.C. § 2254. The district court analyzed his fourteen claims, ultimately denying relief. Whisenhant sought a certificate of appealability (COA), which was partially granted on four key issues, including claims related to the denial of funds for psychiatric assistance, non-disclosure of evidence by the prosecution, jury impartiality, and the trial judge's ex parte communications. He also applied for a COA on two additional claims concerning ineffective assistance of counsel and prosecutorial misconduct, which were granted. Whisenhant abandoned his claims regarding the denial of funds and jury composition in his appeal brief, narrowing the focus to the remaining four claims for habeas relief.
Whisenhant claims ineffective assistance of counsel during his 1981 trial, arguing his attorneys failed to present evidence of his insanity. He acknowledges this was a strategic choice, based on the belief that presenting such evidence would not rectify the trial judge's prior denial of funding for psychiatric evaluation. Whisenhant contends this strategy was unreasonable given substantial evidence from a 1977 trial and his medical records, asserting he was prejudiced by the lack of evidence, which could have changed the trial outcome.
To obtain federal habeas relief under the Antiterrorism and Effective Death Penalty Act (AEDPA), Whisenhant must demonstrate that the state court's decision was either contrary to established Supreme Court law or unreasonably determined the facts. The state courts evaluated his claim using the Strickland v. Washington standard, which requires a showing of both deficient performance and resulting prejudice. Both courts found trial counsel's strategy reasonable and determined that the outcome would not have differed had insanity evidence been presented.
The standard for deficient performance is high, requiring evidence that counsel's actions fell outside the range of competent assistance. The Supreme Court has warned against second-guessing counsel’s strategies based on hindsight. Whisenhant concedes the strategic nature of his attorneys’ decision but claims it was unreasonable, arguing they could have called witnesses, presented prior medical evidence, and utilized funding more effectively. However, he overlooks that the decision was made after thorough investigation by experienced counsel, who had previously determined that insanity was the strongest defense option.
Dees viewed psychiatric testimony as crucial for establishing Whisenhant's mental illness, which would not be easily recognized by those in the community. However, Dees doubted that jurors in the 1981 trial, conducted in the same county where the murders occurred, would accept an insanity defense due to their strong reactions to the crime's gruesome details during the 1977 trial. His co-counsel, John Carroll, shared these concerns, emphasizing the unlikelihood of a jury finding Whisenhant insane without live psychiatric testimony.
Dees argued it was fundamentally unfair and a violation of due process for the state to deny an indigent defendant adequate funds for essential expert testimony. He noted that the Supreme Court's decision in Ake, regarding the state's obligation to provide access to a psychiatrist for indigent defendants, aligned with his views, although it was issued four years after the 1981 trial. Dees believed the trial court's denial of funding for a psychiatrist constituted a significant error, which he felt obligated to utilize in his defense strategy to ensure a fair trial.
After the court denied the motion for funds, Dees chose not to present evidence of insanity, opting not to subpoena Dr. Brown or read previous testimony into the record. He assessed that the emotional impact of Whisenhant's sister's testimony from 1977 could not be conveyed through reading prior statements, and he deemed reading expert reports ineffective against live testimonies presented by the state. Additionally, he did not call Captain Bryant as a witness due to the lack of psychiatric context for the lay opinions on Whisenhant's childhood.
The limited $500 granted for expert testimony was redirected to test the victim’s undergarments for sperm, which Dees believed could provide a critical defense against the capital murder charge. Given these considerations, Dees concluded that the decision not to pursue an insanity defense was a reasonable trial strategy, consistent with professional standards, and reflected a sound judgment formed through thorough research into the law and case facts. Such strategic decisions are generally regarded as beyond challenge.
Counsel's performance was deemed non-deficient by state courts, aligning with Supreme Court precedent. Whisenhant could not demonstrate the first requirement of Strickland v. Washington, which precludes success on an ineffective assistance claim and negates the need to consider any potential prejudice. A breakdown in the adversary process must be shown for a conviction or death sentence to be considered unreliable, leading to the denial of habeas relief on this claim.
Regarding the Brady claim, a Certificate of Appealability (COA) was issued concerning the State's failure to disclose two FBI profile reports and a statement by Sandra L. Heverly. Both the state habeas court and the Alabama Court of Criminal Appeals concluded that the undisclosed documents were not material, as Whisenhant did not show a reasonable probability of a different outcome had the documents been disclosed. The Supreme Court has established that suppressed evidence must be evaluated collectively, with a focus on whether it could undermine confidence in the verdict rather than guarantee a different outcome.
The FBI reports suggested insights into the murder of Venora Hyatt, providing profiles that speculated on the perpetrator's mental state. Heverly's statement described Whisenhant's peculiar behavior during their brief relationship, but trial counsel decided not to present any evidence of insanity, rendering the documents irrelevant to the trial's outcome. Consequently, the Alabama Court of Criminal Appeals correctly ruled that these documents were immaterial to both the 1981 guilt phase trial and the 1987 penalty phase trial, where extensive testimony about Whisenhant’s mental state was already presented.
Dr. Brown diagnosed Whisenhant with a schizoid personality disorder that typically goes unnoticed in daily life due to its episodic nature. This diagnosis was supported by Dr. Tanay's expert report. The district court noted that the defense presented substantial evidence suggesting Whisenhant experienced extreme mental disturbance, impairing his ability to understand his actions during the rape and murder of Payton. However, the court concluded that the additional FBI profile reports and Heverly’s statement did not significantly alter the case's context or undermine confidence in the verdict. The FBI reports, which were speculative and related to a different victim, offered limited new insights and largely echoed Dr. Brown's testimony. Additionally, Heverly's opinion that Whisenhant was "weird" contradicted Dr. Brown's assessment that such behavior would be unnoticeable to co-workers, further diminishing its potential impact on the trial outcome.
Whisenhant also challenged the prosecutor's closing argument during his 1981 trial, which suggested that the defense failed to provide evidence of insanity from co-workers. He argued that the prosecutor was aware of suppressed evidence from co-worker Sandra Heverly, which could have supported his mental illness claim, thus violating his due process rights as outlined in Darden v. Wainwright. The Supreme Court stated that a prosecutor's comments must be evaluated within the overall context of the trial, considering whether the remarks infected the trial with unfairness. The court noted that remarks responding to the defense's arguments necessitate a broader evaluation of their effect on the trial.
The prosecutor's comments during closing arguments were a direct response to the defense's claim of Whisenhant's insanity, highlighting the absence of co-worker testimony supporting this claim. Whisenhant's attorney argued that his client was insane due to the nature of the murder and his confession of lack of awareness and control. However, co-worker Sandra Heverly had not characterized Whisenhant as insane and testified that he never threatened or acted violently toward her. The Alabama Court of Criminal Appeals affirmed that the prosecutor's remarks were accurate, as Heverly's observations did not meet the threshold for insanity. Whisenhant contended that suppression of Heverly's statement impeded his objection to the prosecutor's comments, but his attorney had already objected to the assertion of no insanity testimony, which the trial judge deemed permissible. Given the overwhelming evidence of Whisenhant's guilt and the defense’s strategic choice not to pursue an insanity defense, the likelihood of the prosecutor's comment affecting the jury was minimal. Consequently, Whisenhant was denied habeas relief on the grounds of prosecutorial misconduct.
Additionally, Whisenhant claimed judicial bias, alleging that Judge McRae's ex parte communication with the prosecution compromised his right to an impartial judge. This communication involved a draft order for funding a psychiatrist, which was revised by the judge before being granted. The state habeas court found this claim procedurally defaulted and lacking merit, noting that even if ex parte communications occurred, Whisenhant ultimately received the funds he requested. The Alabama Court of Criminal Appeals concluded there was no evidence that the judge was aware the motion had not been served on the defense and noted that any prior error regarding funding had already been resolved in favor of Whisenhant on appeal.
The trial judge's order granted the funds requested by Whisenhant. The Alabama Court of Criminal Appeals found that Whisenhant did not provide evidence of the trial judge's personal bias or partiality. Whisenhant contested the Court's conclusion that Judge McRae was unaware that the motion had not been served on the defense, arguing that this determination was unreasonable given the evidence from the Rule 32 proceeding. Under 28 U.S.C. 2254(e)(1), state court factual findings are presumed correct unless clearly rebutted by the appellant. Whisenhant had the opportunity to present evidence at the state habeas hearing, including testimony from Chris Galanos, who acknowledged he did not serve the draft order to Whisenhant's trial attorneys. Whisenhant did not inquire if Galanos informed Judge McRae of this omission, nor did he call Judge McRae to testify. The habeas judge suggested that calling Judge McRae was only necessary if absolutely essential, but did not prohibit it. Without Judge McRae’s testimony, speculation about his knowledge remains. Whisenhant bore the burden of proving his claims and did not meet this burden. Even if Judge McRae had known of the non-service, Whisenhant did not demonstrate a constitutional violation. Whisenhant's argument regarding the "appearance of partiality" was dismissed, as no Supreme Court ruling establishes that such an appearance alone violates due process. Regarding actual bias, the document emphasizes that while a fair trial is essential, the situations cited by Whisenhant did not parallel his case. The precedent from In re Murchison illustrated a clear violation of due process when a judge acted as both investigator and adjudicator. However, Whisenhant's circumstances did not meet this threshold for constituting actual bias.
Criminal contempt cases cited by Whisenhant indicate that a judge, other than the one criticized, should decide on contempt issues. In Offutt v. United States, the Supreme Court reversed a contempt finding due to the trial judge's bias, highlighted by ongoing conflicts with defense counsel. Similarly, in Taylor v. Hayes, the trial judge's unfavorable attitude towards the defense escalated during the trial. However, in Mayberry v. Pennsylvania, despite a contentious atmosphere due to the defendant's slanders, the trial judge was not biased as in the previous cases. In Whisenhant's situation, Judge McRae did not engage in a "running controversy" with Whisenhant or his attorneys, nor did either side make personal attacks. Judge McRae's order granting Whisenhant funds was beneficial to the defense and did not indicate any collusion with the prosecution. The district court found Whisenhant's conspiracy claims incredible, especially given the nature of the order. Ex parte communications, if any, did not suggest the required bias. The Alabama courts' rejection of Whisenhant’s judicial bias claim was consistent with federal law. Whisenhant's appeal for federal habeas relief from his conviction for the 1977 murder of Cheryl Payton was denied. The court upheld that Whisenhant's trial counsel provided effective assistance by strategically not presenting insanity evidence, and the prosecutor's arguments were appropriate and accurate. The trial judge did not display bias when granting funds for a psychiatrist. Consequently, the district court's judgment is affirmed.
