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Counsel in capital case not ineffective for presenting negative evidence and missing mitigating evidence

Roy L. Ward v. Ron Neal, 7th Circuit Court of Appeals No. 16-1001, 8/26/16

Ward’s trial lawyers weren’t ineffective when they failed to adequately investigate and present readily available mitigating evidence and then, due to lack of preparation, instead presented evidence Ward was a dangerous psychopath.

Ward was facing the death penalty for a brutal sexual assault and murder. He was granted a new sentencing hearing after the state supreme court ruled his change of venue motion should have been granted. His lead defense lawyer for the resentencing was overextended, so she retained other people to dig for mitigating evidence; they didn’t turn up much because they didn’t do much work on Ward’s case. The lawyer also retained a psychologist, who did work on the case, but not to Ward’s advantage: He concluded Ward should never be on the streets because he was born without a conscience and would be dangerous even to other prisoners. At Ward’s penalty phase trial his lawyers presented what mitigation evidence they had found along with the damaging information from the psychologist. Ward was sentenced to death. (Slip op. at 2-6).

After losing his state appeals of his sentence based on a claim that his trial lawyers were ineffective, Ward turned to federal court. The Seventh Circuit deploys AEDPA’s daunting standard of review to reject Ward’s habeas challenge, holding the state courts reasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in affirming Ward’s sentence:

With [AEDPA’s] intentionally demanding statutory standard in mind,  even assuming that Ward’s attorneys performed deficiently when they pounded into the jury’s mind the idea that Ward is a psychopath—not merely someone suffering from severe antisocial personality disorder—we cannot say that the state court’s conclusion that there was no prejudice was unreasonable. First, the state court unquestionably turned to the correct decision from the U.S. Supreme Court, and so there is no issue of a decision “contrary to” established law. Nor can we say that the Indiana Supreme Court unreasonably applied Strickland. The lay mitigation evidence that Ward gathered for the postconviction proceedings would have shown, if credited, that he was a well-behaved and thoughtful child, who had an especially close relationship with his grandfather. It would also have underscored Ward’s psychological problem with exhibitionism, hinting if not proving that this was something he either inherited from his father and grandfather, or maybe copied from them (both had the same problem). This evidence is not particularly strong, and it is largely cumulative of the mitigating evidence the second jury did hear.


The reason why a reasonable state court could find that Ward was not prejudiced by his trial lawyers’ strategy is easy to see. Against the mitigating evidence counsel did not use, and the psychological labels that were used, stood a mountain of stark evidence against Ward. He raped, tortured, and murdered an adolescent girl in an unbelievably brutal fashion. From the time [police] found him standing near the dying girl until the time of trial, Ward showed no remorse for his actions. He has admitted that he feels no remorse, and the jury undoubtedly observed his flat demeanor throughout the trial. No one was presenting an argument based on Atkins v. Virginia, 536 U.S. 304 (2002), that Ward was mentally retarded and thus not eligible for the death penalty (the record indicates his IQ is 79). ….

The jury thus was asked whether a sentence of death was the proper one, in light of the presence of the aggravating circumstance that Ward committed the murder by intentionally killing the victim while committing rape, and the aggravating circumstance that he tortured and mutilated the victim while she was still alive. Finding no mitigating circumstances to outweigh these facts, the jury said yes, the trial court agreed, and their decisions were affirmed by the state supreme court.

(Slip op. at 9-11).

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