Bryan v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 21 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ROBERT LEROY BRYAN,

Petitioner-Appellant,

v. No. 00-6090

MIKE MULLIN, Warden, Oklahoma
State Penitentiary,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-97-1967-R)

Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbison & Lewis (F. Andrew
Fugitt, with him on the briefs), Oklahoma City, Oklahoma, for Petitioner-
Appellant.

David M. Brockman, Assistant Attorney General (W.A. Drew Edmondson,
Attorney General of Oklahoma, with him on the briefs), Oklahoma City,
Oklahoma, for Respondent-Appellee.

Before TACHA , Chief Judge, SEYMOUR , EBEL , KELLY , HENRY ,
BRISCOE , LUCERO , MURPHY , HARTZ , and O’BRIEN , Circuit Judges. *

*
Judges Michael W. McConnell and Timothy M. Tymkovich joined the
court after oral argument in the instant case and did not participate in this
decision.
MURPHY , Circuit Judge.

I. INTRODUCTION

Robert Leroy Bryan was convicted in Oklahoma state court of first degree

malice murder and sentenced to death. See Bryan v. State (Bryan I), 935 P.2d

338 (Okla. Crim. App. 1997). After the Oklahoma Court of Criminal Appeals

denied his state petition for post-conviction relief, see Bryan v. State (Bryan II),

948 P.2d 1230 (Okla. Crim. App. 1997), Bryan filed the instant 28 U.S.C. § 2254

habeas petition in federal district court, alleging, inter alia: (1) the state failed to

adduce sufficient evidence to support his conviction for first degree malice

murder; (2) counsel labored under a conflict of interest; (3) counsel was

ineffective at both the guilt and penalty phases of his trial because counsel failed

to present mental health evidence; and (4) he was incompetent to stand trial. The

district court denied relief. A panel of this court unanimously concluded that

Bryan was not entitled to relief on his evidence-sufficiency, conflict of interest,

and competency claims. See Bryan v. Gibson (Bryan III), 276 F.3d 1163, 1166-

68, 1172-75, 1168-72 (10th Cir. 2001); id. at 1179, 1180 (Henry, J., concurring

in part and dissenting in part). The panel, although divided, further held that trial

counsel had not rendered ineffective assistance during either the guilt or penalty

phase of the trial by failing to present mental health evidence. Compare id. at

-2-
1172-79 (panel majority), with id. at 1182-85 (Henry, J., concurring in part and

dissenting in part). 1

A majority of the active judges of this court ordered the case reheard en

banc and requested that the parties brief whether trial counsel rendered

constitutionally ineffective assistance when he failed to present evidence of

Bryan’s mental illness “during either the guilt or penalty phases of the trial.” 2

Upon consideration of the parties’ briefs and submissions, we vacate that portion

of the panel opinion addressing Bryan’s claim of ineffective assistance of trial

counsel, see id. at 1175-79, and affirm the denial of habeas relief for the reasons

set out below. We do not reconsider as an en banc court the panel’s denial of

habeas relief as to Bryan’s evidence-sufficiency, competency, or conflict of

interest claims. See id. at 1166-68, 1168-72, 1172-75. Accordingly, all

remaining portions of the panel opinion remain undisturbed.

1
As to Bryan’s argument that his counsel rendered ineffective assistance
during the guilt phase of the trial, Judge Henry simply indicated as follows: “I
believe that counsel was ineffective in the guilt phase, but I will concentrate on
Mr. Bryan’s best argument: that he received unreasonably ineffective assistance
in the all-important ‘second’ or ‘sentencing phase.’” Bryan III, 276 F.3d at 1180
(Henry, J., concurring in part and dissenting in part).
2
In his supplemental brief before the en banc court, Bryan focuses
exclusively on the question whether his trial counsel was ineffective in failing to
present potentially mitigating mental health evidence during the penalty phase of
the trial. He does not address at all whether counsel was constitutionally
ineffective during the guilt phase of the trial.

-3-
 II. BACKGROUND

A. Factual Background

The evidence presented at trial linking Bryan to the murder of his aunt,

Inabel Bryan, was almost entirely circumstantial. Inabel disappeared from her

home in September of 1993. A neighbor found tire marks at Inabel’s home

matching the tracks of a car Bryan had rented at that time. A potted plant was

also found at Inabel’s home; Bryan purchased that plant the day Inabel

disappeared. Police found Inabel’s body, and a receipt for the purchase of the

plant, several days after her disappearance on a parcel of property owned by

Bryan’s parents. Inabel died from a gunshot wound to the forehead; a pillowcase

was duct-taped over her head. There was a single set of vehicle tracks present at

the scene; the tracks matched the tread pattern of the right rear tire on Bryan’s

rental car.

Authorities searched the property where Inabel’s body was found because,

several years earlier, Bryan had solicited an undercover police officer to kidnap

and kill a local banker and dump the body at the same location. This solicitation

scheme included plans to force the banker to sign a number of fraudulent

promissory notes and personal checks. Similarly, in this case, Bryan possessed

several handwritten promissory notes and agreements in which Inabel purportedly

agreed she owed him millions of dollars as a result of an investment in his failed

-4-
businesses. A handwriting expert testified Bryan wrote the agreements and

forged Inabel’s signature. Police also found in Bryan’s possession several of

Inabel’s personal checks. According to the expert, Bryan had forged Inabel’s

signature on one of the checks and had made four others signed by Inabel payable

to himself in varying amounts. Police found Inabel’s checkbook just outside the

Bryan home, burned in a can of ashes.

Before Inabel’s disappearance, Bryan rented a car from a local dealership.

When making the arrangements, he requested a car with a large trunk. When he

returned the car two days after Inabel’s disappearance, he could not pay the rental

fee. He did, however, show the owner of the dealership one of the forged

checks. Police found a hair in the trunk similar to the hair of the victim. They

also found grass and vegetation, like that on the property where Inabel’s body

was discovered, throughout the car’s undercarriage. Fibers lining the trunk were

similar to those on Inabel’s clothes and tape found on or near her body.

Police located additional evidence in Bryan’s bedroom tying Bryan to the

murder. They discovered a roll of duct tape of the same type as pieces found

near Inabel’s body and on the pillowcase over her head. An expert testified that

the edges of the tape taken from Bryan’s bedroom matched the edges of one of

the pieces of tape near Inabel’s body. Police also found ammunition in Bryan’s

bedroom consistent with the type of ammunition used to kill Inabel and

-5-
consistent with a bullet in the rental car. A metallurgy study indicated that all the

bullets—the one that killed Inabel, the one in the rental car, and the ones in the

Bryan home—were manufactured at the same time and could have come from the

same box.

B. Additional Background

The issues before this court turn on evidence of Bryan’s mental health at

the time of the murder and the non-use of that evidence during both the guilt and

penalty phases of Bryan’s trial. As a consequence, some brief additional

background is in order.

Bryan has a history of organic brain disease, possibly related to his severe

case of diabetes mellitus, dating back to his mid-twenties. In 1989, when Bryan

was forty-nine-years-old, he was charged with solicitation of murder relating to

the scheme to kidnap and kill the banker described above. He was initially found

incompetent to stand trial and was sent to Eastern State Hospital in March of

1989 for treatment. Bryan was diagnosed as suffering from an organic delusional

disorder and was considered severely psychotic at the time of his admission to the

hospital. Doctors also discovered that Bryan’s brain exhibited significant signs

of atrophy. Doctors treated Bryan’s diabetes and medicated him with Navane, an

antipsychotic drug, until Bryan was determined competent in 1990.

-6-
 After Bryan was charged in 1993 with Inabel’s murder, Bryan’s family

hired Raymond Munkres to represent Bryan. At the arraignment, Munkres

expressed serious doubt as to Bryan’s competency and made an oral motion for a

competency determination. A jury trial on the question of Bryan’s competency

was eventually held on December 30, 1993. Because it was beyond the financial

resources of Bryan’s family, Munkres did not present any medical testimony at

the hearing. Instead, Munkres adduced the testimony of Mike Jackson, an

individual who volunteered his services to Munkres as an investigator. The

essence of Munkres’ presentation at the competency hearing was that Bryan was

incompetent because the version of events he described surrounding the murder

had no basis in reality, but that Bryan nonetheless sincerely believed in the

veracity of his version of events. The jury concluded that Bryan had failed to

demonstrate that he was incompetent to undergo further criminal proceedings. 3

On January 3, 1994, just four days after the competency trial was

completed, Bryan filed a letter with the trial court indicating as follows: “I wish

to advise the court that as [of] this date I am dismissing my attorney of record

3
This competency hearing failed to comply with the dictates of the United
States Supreme Court’s decision in Cooper v. Oklahoma, 517 U.S. 348 (1996),
because Bryan was required to prove his incompetence to stand trial by clear and
convincing evidence. See Bryan I, 935 P.2d at 347. Accordingly, a retrospective
competency hearing was conducted in 1996 utilizing the proper preponderance-
of-the-evidence standard; Bryan was also found competent during this
proceeding. See id.; Bryan III, 276 F.3d at 1168-72.

-7-
because of philosophical differences in how this case should proceed in my best

and most aggressive defense to the charges leveled against me.” The trial court

allowed Munkres to withdraw from the case and appointed the Oklahoma

Indigent Defense System (“OIDS”) to represent Bryan.

Wesley Gibson of the OIDS replaced Munkres as Bryan’s attorney. Like

Munkres, Gibson could not verify Bryan’s version of the events surrounding the

murder. Gibson hired Dr. J.R. Smith, a board-certified psychiatrist, to evaluate

Bryan. It was Dr. Smith’s opinion that Bryan’s “delusional system and

circumstantiality of thought (as well as the fluctuating blood sugar levels) affect

his ability to assist his attorney in his own defense. He produces volumes of

information that are irrelevant and often erroneous (but believed by the patient).”

Based on the information provided by Dr. Smith, Gibson requested a second

competency hearing. At a hearing on the application, the trial court considered

the testimony of Gibson and the sheriff in charge of the jail where Bryan was

housed, as well as the affidavit of Dr. Smith. The trial court denied the

application for a new competency hearing, concluding that there was no doubt

that Bryan was then competent.

Gibson continued to represent Bryan until May of 1994, when he had a

slight stroke. He was replaced by Steven Hess, also of the OIDS. Hess

continued to consult medical experts and hired Dr. Philip Murphy, a clinical

-8-
psychologist, to evaluate Bryan. Based on an evaluation which included

numerous psychological tests and a review of relevant medical records, Dr.

Murphy concluded as follows: “Mr. Bryan suffers from a serious mental disorder

which places into serious question his competence to stand trial, as well as his

legal culpability in the crimes for which he is charged.”

Based on the opinions expressed by Drs. Smith and Murphy, and the two

unsuccessful attempts to challenge Bryan’s competency, Hess thought it was in

Bryan’s best interest to utilize an insanity defense rather than to continue to

litigate the competency issue. Accordingly, Hess filed a notice of intent to rely

on the insanity defense and a witness list setting out expert witnesses, including

particularly Drs. Smith and Murphy, in support of such a defense. When Hess

informed Bryan and his parents that he intended to utilize an insanity defense,

both Bryan and his parents expressed their disapproval. Shortly thereafter, Bryan

and his parents informed Hess that he would be replaced by privately retained

counsel. In so doing, they indicated that Hess was being replaced because he had

filed the notice to rely on an insanity defense.

Hess was replaced by Jack Freeman. Freeman contacted Hess and

indicated that he would be Hess’ replacement. He also set up a meeting with

Hess and the medical experts. Hess turned over Bryan’s file to Freeman,

including all of the records and expert reports on Bryan’s mental health.

-9-
Freeman did not ultimately present any mental health evidence during either the

guilt or penalty phase of Bryan’s trial, although he arranged for Dr. Murphy to be

available in case his testimony would be helpful during the guilt phase of the

trial.

III. ANALYSIS

A. Standard of Review

On direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”),

Bryan asserted that Freeman was ineffective during both the guilt and penalty

phases of the trial because he failed to present evidence of Bryan’s mental

illness. 4 Contemporaneously with the filing of his opening brief on direct appeal,

Bryan filed an application for an evidentiary hearing, supported by affidavits,

seeking a hearing on the issue of trial counsel’s ineffectiveness for “failure to

utilize available evidence of [Bryan’s] mental illness at any point in the trial.”

The OCCA did not specifically reject Bryan’s request for an evidentiary hearing;

it did so implicitly, however, when it proceeded to the merits of Bryan’s

ineffective assistance claims without an evidentiary hearing and denied him

relief. See Bryan I, 935 P.2d at 263.

On direct appeal to the OCCA, Bryan was represented by William Luker
4

of the OIDS.

-10-
 In the instant § 2254 habeas corpus petition, Bryan asserted the same

claims of ineffective assistance he asserted in state court. The federal district

court granted Bryan an evidentiary hearing, made findings of fact and

conclusions of law, and denied relief. Although the respondent contended before

the district court that an evidentiary hearing was unnecessary because “there is

plenty of information in the record before this Court to make that determination,”

he did not raise the propriety of that hearing before this court. Accordingly, the

panel declined to address the question whether the district court should have

granted Bryan an evidentiary hearing on his claims of ineffective assistance. See

Bryan III, 276 F.3d at 1172 n.6 (citing Romano v. Gibson, 239 F.3d 1156, 1174

n.9 (10th Cir. 2001) (declining to consider propriety of district court’s grant of an

evidentiary hearing when such hearing had already taken place and respondent

had not challenged on appeal district court’s decision to grant hearing)).

In the order granting rehearing en banc, this court instructed the parties to

address the following questions:

Did the district court’s decision to take evidence on Mr. Bryan’s
claim that his counsel was ineffective in failing to present mental
health evidence at trial comport with 28 U.S.C. § 2254(e)(2)? By
failing to argue the issue on appeal, did the government waive its
objection to the district court’s grant of an evidentiary hearing?

In his supplemental brief, the respondent cites Romano and asserts that the issue

is not “properly before this court for review at this time” because he did not

-11-
appeal the district court’s grant of an evidentiary hearing. The respondent

nevertheless proceeds to brief the issue on the merits and again asserts that an

evidentiary hearing was unnecessary because “there [was] plenty of information

in the [existing state court] record” to decide the merits of Bryan’s claims of

ineffective assistance. We conclude that the district court’s decision to grant

Bryan an evidentiary hearing on his claims of ineffective assistance did not

contravene 28 U.S.C. § 2254(e)(2). Accordingly, it is unnecessary to determine

what steps a respondent must undertake to preserve an objection, predicated on §

2254(e)(2), to a district court decision to grant a habeas petitioner an evidentiary

hearing.

Section 2254(e)(2) provides that “[i]f the applicant has failed to develop

the factual basis of a claim in State court proceedings, the court shall not hold an

evidentiary hearing on the claim unless the applicant” satisfies one of the two

exceptions set out in § 2254(e)(2)(A) or (B). If, however, the petitioner did not

“fail[] to develop the factual basis of [his] claim in State court,” id., § 2254(e)(2)

is not applicable and a federal habeas court should proceed to analyze whether a

hearing is appropriate or required under pre-AEDPA standards. Miller v.

Champion, 161 F.3d 1249, 1253 (10th Cir. 1998). Under those standards, Bryan

is entitled to an evidentiary hearing “so long as his allegations, if true and not

contravened by the existing factual record, would entitle him to habeas relief.”

-12-
Id. See generally Medina v. Barnes, 71 F.3d 363, 369-71 (10th Cir. 1995)

(discussing at length pre-AEDPA standard for obtaining an evidentiary hearing).

In his supplemental brief before the en banc court, the respondent does not

dispute that Bryan diligently sought to develop the factual basis underlying his

claims of ineffective assistance in state court. 5 Instead, he argues that the

evidentiary hearing was inappropriate because Bryan’s allegations “are

contravened by the existing record.” Respondent’s Brief at 19. Notably,

however, the respondent does not identify those portions of the state court record

which allegedly contravene the allegations of ineffective assistance set out in

Bryan’s § 2254 habeas petition. Instead, he broadly asserts that the trial record

contained sufficient information to allow the OCCA to decide the merits of

Bryan’s claims without an evidentiary hearing and that, in light of that record, the

decision of the OCCA rejecting Bryan’s claims of ineffective assistance is neither

5
See Williams v. Taylor, 529 U.S. 420, 432 (2000) (“Under the opening
clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not
established unless there is lack of diligence, or some greater fault, attributable to
the prisoner or the prisoner’s counsel.”); Miller v. Champion, 161 F.3d 1249,
1253 (10th Cir. 1998) (noting that the petitioner had sought and been denied an
evidentiary hearing in state court and concluding that where “a habeas petitioner
has diligently sought to develop the factual basis underlying his habeas petition,
but a state court has prevented him from doing so, § 2254(e)(2) does not apply”).

-13-
contrary to nor an unreasonable interpretation of governing Supreme Court

precedent. 6

We find the respondent’s argument, which is not supported by a single

citation to the state court record, unconvincing. This court has reviewed the

entire state court record, including the transcript of the retrospective competency

hearing. Although that record contains much information relevant to the question

whether Freeman’s failure to utilize mental health evidence during both the guilt

and penalty phases of Bryan’s trial was constitutionally ineffective, it is missing

key testimony from Freeman regarding what he knew and understood about

Bryan’s mental health history and, most importantly, why he decided not to

utilize that evidence. It is exactly this information Bryan sought to develop in

state court when he requested an evidentiary hearing before the OCCA. Because

Bryan diligently sought to “develop the factual basis of [his] claim in State court

proceedings,” § 2254(e)(2) does not bar an evidentiary hearing.

Accordingly, the appropriate question is whether Bryan was entitled to a

hearing under pre-AEDPA law. See Miller, 161 F.3d at 1253 (holding that pre-

AEDPA standards govern question of propriety of granting an evidentiary

6
See Respondent’s Brief at 20 (“[B]ecause Petitioner did develop his
ineffective assistance of trial counsel [claim] for not presenting the mental health
evidence there was sufficient information in the record to determine if the state
court decision was contrary to, or an unreasonable application of, clearly
established law.”).

-14-
hearing when a petitioner diligently sought to develop the factual basis of his

claim in state court and citing Medina, 71 F.3d at 368-69, as setting out the

controlling pre-AEDPA standard). The answer to that question is clearly “yes.”

See Medina, 71 F.3d at 369-70 (examining controlling Supreme Court cases and

holding that those cases require “an evidentiary hearing when the facts were not

adequately developed in the state court, so long as that failure is not attributable

to the petitioner”).

Having determined that the district court correctly afforded Bryan an

evidentiary hearing on his claims of ineffective assistance, the appropriate

standard of review is that set out in Miller.

[I]neffective assistance claim[s] present[] a mixed question of law
and fact. Because our analysis of this claim primarily involves
consideration of legal principles, we review this claim de novo.
Further, we note that because the state court did not hold any
evidentiary hearing, we are in the same position to evaluate the
factual record as it was. Accordingly, to the extent the state court’s
dismissal of [petitioner’s ineffective assistance claim] was based on
its own factual findings, we need not afford those findings any
deference.

-15-
Miller, 161 F.3d at 1254 (citations omitted). 7 But see Valdez v. Cockrell, 274

F.3d 941, 953 (5th Cir. 2001) (specifically rejecting Miller approach and holding

instead that even where a petitioner was denied a full and fair hearing, federal

court is obligated to apply the deferential review standards set out in § 2254(d)

and (e)). 8 In these circumstances, this court accepts the district court’s factual

findings unless they are clearly erroneous and reviews de novo whether counsel’s

performance was legally deficient and whether the deficiencies prejudiced the

defendant. See United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995).

B. Discussion

“A convicted defendant’s [or habeas petitioner’s] claim that counsel’s

assistance was so defective as to require reversal of a conviction or death

sentence has two components.” Strickland v. Washington, 466 U.S. 668, 687

7
In light of Miller, the panel erred in applying the deferential review
standards set out in § 2254(d) and (e) in reviewing Bryan’s claims that his trial
counsel was ineffective. See Bryan III, 276 F.3d at 1177 (concluding that
OCCA’s resolution of Bryan’s claim of ineffective assistance during guilt phase
was not contrary to or an unreasonable application of Supreme Court precedent
pursuant to § 2254(d)(1)); id. (same as regards OCCA’s resolution of Bryan’s
claim of ineffective assistance during penalty phase).
8
In a published dissent from the denial of rehearing en banc, four judges of
the Fifth Circuit registered their agreement with Miller and noted that the rule
adopted by the Fifth Circuit mandated the perverse result of deferring to legal
and factual determinations made by state courts, even though a habeas petitioner
had never been afforded a full and fair opportunity to develop the factual basis of
his claim in state court. See Valdez v. Cockrell, 288 F.3d 702, 703-05 (5th Cir.
2002) (Dennis, J., dissenting from the denial of the Petition for Rehearing En
Banc).

-16-
(1984); see also id. at 697 (“The principles governing ineffectiveness claims

should apply in federal collateral proceedings as they do on direct appeal or in

motions for a new trial.”). To be entitled to relief, a petitioner must prove both

that his counsel’s performance was deficient and that the deficient performance

prejudiced his defense. See id. at 687 (“Unless a defendant makes both

showings, it cannot be said that the conviction or death sentence resulted from a

breakdown in the adversary process that renders the result unreliable.”). To carry

his burden of demonstrating that counsel’s performance was deficient, a

petitioner must show “that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id. To carry his burden of demonstrating prejudice, a petitioner must show “that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Id.

The Supreme Court has made clear that “there is no reason for a court

deciding an ineffective assistance claim to approach the inquiry in [any particular

order] or even to address both components of the inquiry if the defendant makes

an insufficient showing on one.” Id. at 697. As set out more fully below, this

court resolves Bryan’s claim of ineffective assistance on the basis of Strickland’s

performance prong. For that reason, and because it is important to reemphasize

-17-
that “[j]udicial scrutiny of counsel’s performance must be highly deferential,” we

set out the Supreme Court’s teachings on the matter at some length. Id. at 689.

The proper measure of attorney performance is that of reasonably effective

assistance under prevailing professional norms, considering all of the

surrounding circumstances. Id. at 687-88. The Court has been crystal clear that

“[j]udicial scrutiny of counsel’s performance must be highly deferential. It is all

too tempting for a defendant to secondguess counsel’s assistance after conviction

or adverse sentence, and it is all too easy for a court, examining counsel’s

defense after it has proved unsuccessful, to conclude that a particular act or

omission of counsel was unreasonable. ” Id. at 689. For that reason, a reviewing

court must “reconstruct the circumstances of counsel’s challenged conduct [and]

evaluate [that] conduct from counsel’s perspective at the time.” Id.; see also id.

at 690 (“[A] court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel’s challenged conduct on the facts of the particular

case, viewed as of the time of counsel’s conduct.”). Because of the difficulties

that inhere in such a process, “a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689 (emphasis added). The importance of this presumption

cannot be overstated. This is made clear by the Court’s repeated invocation of

the “strong presumption” that counsel provided constitutionally adequate

-18-
assistance. See id. at 690 (“[T]he court should recognize that counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment.”); id. at 696 (“In every case

the court should be concerned with whether, despite the strong presumption of

reliability, the result of the particular proceeding is unreliable because of a

breakdown in the adversarial process that our system counts on to produce just

results.”).

Thus, this court must analyze whether Bryan has adduced sufficient

evidence to overcome the strong presumption that trial counsel provided

constitutionally adequate assistance during both the guilt and penalty phase of

Bryan’s capital trial. In so doing, we recognize the “need to apply even closer

scrutiny when reviewing attorney performance during the sentencing phase of a

capital case.” Battenfield v. Gibson, 236 F.3d 1215, 1226 (10th Cir. 2001)

(quotations omitted).

1. Failure to present mental health evidence during the guilt phase

In his brief before the panel, 9 Bryan contended that Freeman should have

presented evidence of his mental illness during the trial’s guilt stage in support of

either an insanity defense or in support of a second-degree murder instruction. In

9
As noted above, Bryan’s counsel ignored this court’s request that he
address in his supplemental en banc brief the question of the effectiveness of
trial counsel’s performance during the guilt phase. See supra n.2.

-19-
particular, Bryan relies on a report prepared by Dr. Murphy for the defense in

May of 1994 which indicates that “Mr. Bryan suffers from a serious mental

disorder which places into serious question . . . his legal culpability in the crimes

for which he is charged.” Bryan asserts that this evidence, when coupled with

the interview performed by Dr. Smith, evidence derived from CAT and SPECT

scans of Bryan’s brain, and the Eastern State Hospital records, casts doubt on his

ability to form an intent to kill.

Bryan’s arguments regarding the viability of a guilt-phase insanity defense

are completely at odds with the testimony adduced at the evidentiary hearing

conducted by the district court. To assert an insanity defense, “Oklahoma . . .

requir[es] the defendant to show that at the time of the crime he suffered from a

mental disease or defect rendering him unable to differentiate between right and

wrong, or unable to understand the nature and consequences of his actions.”

James v. Gibson, 211 F.3d 543, 553 (10th Cir. 2000) (quotation omitted).

Despite the statements in Dr. Murphy’s May 1994 report relied upon so heavily

by Bryan, Freeman testified unequivocally that both Drs. Murphy and Smith told

him that Bryan was not legally insane and that he relied on the doctors’ opinions

in formulating his trial strategy. 10 Freeman’s testimony in this regard was fully

10
Freeman testified as follows:
Counsel: Do you recall at that County Line meeting what Dr.
(continued...)

-20-
corroborated by testimony provided by Hess at the federal evidentiary hearing.

Hess specifically testified there was no medical evidence indicating that Bryan

did not understand the consequences of his actions and no medical evidence that

would provide a defense during the guilt phase of the trial. Instead of presenting

a viable defense based on medical evidence during the guilt phase of the trial,

Hess’ strategy was to utilize the guilt phase to lay the foundation for a mitigation

10
(...continued)
Smith’s opinion was as to the petitioner’s sanity?
....
Freeman: Yes, sir, I do, because that was one of the things that
I wanted to learn was where we stood on the matter of insanity
question. And Dr. Smith’s response was, in being asked a question
as to whether or not Mr. Bryan was legally insane, that he was not. I
believe what he said was, if I refresh my recollection, that he might
be crazy but he was not legally insane.
....
Counsel: Mr. Freeman, we were discussing your meeting with
certain members of the defense team at the County Line Restaurant.
Now, let me ask you: Do you recall that Dr. Smith provided you an
opinion as to whether the petitioner could or could not form the
intent to kill?
Freeman: No, sir, I do not remember. I do not recollect him
giving me any such opinion.
Counsel: You do recall or do you recall, though, that he gave
you an opinion as to legal sanity?
Freeman: Yes.
Counsel: And did Dr. Murphy give you an opinion, likewise?
Freeman: Yes, he did.
Counsel: And was it the same as Dr. Smith’s, essentially?
Freeman: Yes, sir.
Counsel: And did you rely on the opinion of these experts?
Freeman: Yes, sir.

-21-
case at the penalty phase. 11 Accordingly, Freeman lacked the medical evidence

necessary to present an insanity defense at the guilt stage of Bryan’s trial. 12

11
Hess testified as follows:
Counsel: After you had talked with some various experts and
talked with Mr. Bryan and conducted your investigation, did you
arrive at a strategy for how to defend the case?
Hess: Yes, I did.
Counsel: And what was that strategy, please?
Hess: We filed a notice of intent to rely on the insanity
defense, the reason being the version of the case that was provided
with—by Mr. Bryan varied very little over the two months that I
spent talking to him. It was the same story every time we talked.
That factual basis provided by Mr. Bryan did not meet what
the factual basis was as the evidence in this case showed, and our
belief was to put Mr. Bryan—try the case, put Mr. Bryan on the
stand in Stage 1, let him tell the jury his story, and then follow that
up with either Dr. Smith or Dr. Murphy, to start laying the
groundwork for where all my evidence was invariably going to go,
which was a Stage 2 mental health defense in mitigation to—in an
attempt to save Mr. Bryan from the death sentence.
12
Nor would the medical evidence Freeman possessed have supported an
instruction for second degree murder. Under Oklahoma law, second degree
murder “occurs ‘[w]hen perpetrated by an act imminently dangerous to another
person and evincing a depraved mind, regardless of human life, although without
any premeditated design to effect the death of any particular individual.’” Gilson
v. State, 8 P.3d 883, 917 (Okla. Crim. App. 2000) (quoting Okla. Stat. Ann. tit.
21, § 701.8(1)). The facts in this case do not suggest the lack of a premeditated
intent to kill the victim. Rather, Inabel was abducted from her home and shot,
having had a pillowcase taped over her head. Further, as the testimony of Hess
and Freeman set out above demonstrate, there was simply no evidence available
at trial specifically indicating Bryan was not capable of forming the requisite
intent for first degree malice murder.

-22-
 Significantly, Bryan did not want his attorney to present evidence

suggesting he was mentally ill 13; he was also apparently unwilling to accept a

guilty plea to avoid a possible death sentence. 14 This court must presume that

Bryan was competent to rationally assist defense counsel at trial, as he was

adjudicated competent at the retrospective competency hearing. See Bryan III,

276 F.3d at 1169-72. “The reasonableness of counsel’s actions may be

determined or substantially influenced by the defendant’s own statements or

actions. Counsel’s actions are usually based, quite properly, on informed

Bryan testified at the federal evidentiary hearing as follows:
13

Counsel: Mr. Bryan, is it fair to say that neither you nor your
parents wanted Mr. Freeman or any earlier lawyer, for that matter, to
use any evidence of your alleged mental evidence in court?
Bryan: That’s correct.
Counsel: Was that clearly communicated to Mr. Freeman?
Bryan: It was.
14
With regard to the possibility of a plea agreement, Gibson, Bryan’s first
OIDS attorney, testified as follows during Bryan’s retrospective competency
hearing:
Gibson: There were considerable plea negotiations in the case.
There were plea offers of plea—again, my discussions and advice to
Mr. Bryan was on numerous occasions that he accept those offers.
....
Counsel: Well, Mr. Gibson, since its been opened up, what
was the only offer ever made to you for a recommendation in regard
to this man?
Gibson: I don’t want to misspeak, [Counsel]. There were
discussions and I’m not absolutely sure whether a firm offer was
made or what some DA’s would consider an offer, but I—it was my
understanding and what I communicated to Mr. Bryan was that the
State would accept a plea, even a plea of nolo contendere to a life
without parole sentence.

-23-
strategic choices made by the defendant and on information supplied by the

defendant.” Strickland, 466 U.S. at 691; see also Romano, 239 F.3d at 1181

(collecting cases for this proposition). “Although trial counsel has an

independent duty to investigate and make a case in [defense], counsel also has to

be responsive to the wishes of his client.” Romano, 239 F.3d at 1181; see also

Wallace v. Ward, 191 F.3d 1235, 1247-48 (10th Cir. 1999) (concluding counsel’s

decision to acquiesce to petitioner’s wishes that attorney not present any

mitigating evidence during penalty phase was not deficient performance).

Additionally, the prosecution’s case, although strong, was almost entirely

circumstantial. See Smith v. Gibson, 197 F.3d 454, 461-62 (10th Cir. 1999)

(holding defense counsel’s innocence-based defense was reasonable strategy in

light of circumstantial nature of prosecution’s case). There was evidence

admitted at trial indicating that Bryan’s physical condition had so deteriorated at

the time of the murder, due to his diabetes, that he was physically incapable of

carrying out this crime.

Accordingly, based on the record before this court, it appears that Freeman

had two options during the guilt phase of the trial. He could put the prosecution

to its burden of proof, as he was specifically instructed to do by Bryan. Or,

alternatively, he could present a non-viable insanity defense, as foundation for a

mitigation case during the penalty phase, the very strategy that led to Bryan’s

-24-
termination of Munkres 15 and Hess. Freeman’s decision to follow the former

course—after meeting with the medical experts, reviewing all of the additional

medical evidence, consulting with Bryan on numerous occasions, and noting the

circumstantial nature of the prosecution’s case and the evidence of Bryan’s

deteriorated health—is not objectively unreasonable. See Strickland, 466 U.S. at

690 (“[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable.”).

2. Failure to present mental health evidence during the penalty phase

In his supplemental brief before the en banc court, Bryan argues that

Freeman provided objectively unreasonable representation during the penalty

phase of the trial through ignorance of the law and failure to act as a

knowledgeable guide and advisor. In particular, Bryan asserts that Freeman did

not understand the importance of thoroughly investigating and presenting

mitigating evidence as demonstrated by his view that evidence of mental illness

short of insanity was not relevant during the penalty phase. He further asserts

that in light of this failure, Freeman “failed adequately to advise Mr. Bryan

regarding the mitigating evidence which was available and its potential benefits.”

As noted above, Bryan replaced Munkres four days after Bryan’s first
15

competency trial because of “philosophical differences in how this case should
proceed in my best and most aggressive defense to the charges leveled against
me.” See supra Section II.B., at 7.

-25-
 This court finds Bryan’s arguments unconvincing on several levels. First,

Freeman’s testimony at the federal evidentiary hearing relied upon by Bryan in

support of his claim that Freeman did not understand the relevance of Bryan’s

mental health evidence is presented out of context and is clearly insufficient to

overcome the strong presumption that Freeman “rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment.” Strickland, 466 U.S. at 690. Second, Hess clearly testified that he

discussed with Bryan his preferred strategy of utilizing mental health evidence

during both the guilt and penalty phases of Bryan’s trial, with a focus on the

penalty phase and preventing a sentence of death, and that Bryan had vigorously

rejected the use of mental health evidence and terminated him. Accordingly,

Bryan was certainly apprised of the benefits of using mental health evidence in

mitigation at the penalty phase and rejected that strategy. Freeman was well

aware of this history, having spent an extensive amount of time with Bryan 16 and

having met with Hess to discuss the case and the available mental health

evidence. Finally, the only testimony adduced at the federal evidentiary hearing

on the question demonstrates that the use of mental health evidence during the

penalty phase would not have been effective following a guilt phase defense of

16
Freeman testified at Bryan’s retrospective competency hearing that he
spent between 1200 and 1500 hours working on Bryan’s case and that “the bulk
of that would have been with Mr. Bryan.”

-26-
actual innocence. See infra n.22. Accordingly, Freeman’s decision not to

employ medical evidence, viewed from “his perspective at the time” of the trial,

is not objectively unreasonable. Strickland, 466 U.S. at 689.

Relying on limited portions of Freeman’s testimony at the evidentiary

hearing held by the district court, Bryan argues that Freeman did not understand

the potential usefulness of mental health evidence during the penalty phase,

instead thinking that such evidence was irrelevant unless it demonstrated insanity

or lack of competence. A review of Freeman’s statements in context, however,

confirms the district court’s conclusion that “[t]rial counsel’s decision not to

present evidence of Petitioner’s organic brain syndrome and mental illness [at the

penalty phase] was clearly a strategic one.” 17

For instance, Bryan notes at the evidentiary hearing, Freeman responded

affirmatively to the following cross-examination question: “So you saw no use

for the experts’ mental testimony, except to prove either insanity or

incompetence, right?” When read in context, however, it is clear that Freeman is

17
Cf. Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998)
(“Inquiries into strategic or tactical decisions challenged as ineffective assistance
of counsel involve both a factual and a legal component. The question of
whether an attorney’s actions were actually the product of a tactical or strategic
decision is an issue of fact . . . . By contrast, the question of whether the
strategic or tactical decision is reasonable enough to fall within the wide range of
professional competence is an issue of law not one of fact . . . .”).

-27-
referring only to the guilt stage of the trial. 18 Furthermore, Bryan simply

misreads the transcript in asserting Freeman testified that he thought the

testimony of the medical experts “would not have been relevant at all.” Instead,

when read in context, Freeman was indicating that it was the opinion of Bryan’s

parents that was irrelevant to his determination not to mount an insanity defense

18
Freeman testified during cross-examination as follows:
Counsel: Now, Leroy . . . could have had public defenders put
on the organic brain damage evidence and the mental health
evidence at no cost to Leroy or to the family, right?
Freeman: That’s right.
....
Counsel: And your strategy was to try to create a reasonable
doubt by basically attacking the testimony and the credibility of the
State’s witnesses?
Freeman: Yes, sir.
....
Counsel: And you resolved to create that reasonable doubt
without using any of the mental health experts?
Freeman: Yes, sir.
....
Counsel: Okay. And you allowed the mental health witnesses
to stay on the witness list that you finally went to trial with, right?
Freeman: Yes, sir.
Counsel: And you did that in the hopes that maybe they would
come up with something where they could say Leroy was insane or
he was incompetent, right?
Freeman: That was a part of it. The other part was that I
didn’t want to cut my options and I didn’t want the district attorney
to know that I might not raise that defense, because I wanted them to
be concerned about other things that I could create for them to be
concerned with.
Counsel: So you saw no use for the experts’ mental testimony,
except to prove either insanity or incompetence, right?
Freeman: That’s right.

-28-
during the guilt phase of the trial, not the opinions of the medical experts. 19 Nor

can it be asserted that Freeman thought that he was ethically prohibited from

presenting mental health evidence during the penalty phase of the trial. Instead,

taken in context, Freeman’s testimony reflects the fact that he had no medical

evidence supporting a guilt-phase insanity defense and that he was fearful that

any testimony by Dr. Murphy during the second stage would do more harm than

good. 20

19
Freeman testified on cross-examination as follows:
Counsel: Now, you [indicated] on direct . . . that it was in the
final preparation for the trial that Leroy’s parents first told you they
didn’t think he was insane?
Freeman: It was at some time during the preparation, closer to
trial time than closer to the time I was hired. . . .
Counsel: Would I be correct in saying that Leroy’s parents
vociferously and adamantly denied there was anything wrong with
Leroy?
Freeman: Yes, they did. You’d be correct in saying that.
Counsel: And you were guided by that judgment rather than
the judgment of the doctors, weren’t you?
Freeman: No. No. No matter what, they stated—the doctors
had said that Mr. Bryan was neither incompetent to stand trial or was
not insane at the time and could form the intent and so forth. What
they said would not have been relevant at all.
Counsel: Okay. And if any mental health expert was not
going to say that he was legally insane or he was legally
incompetent, he wasn’t going to be of any benefit to you, right?
Freeman: That was my feeling.
Counsel: All right. There was no question in your mind,
though, that Leroy’s parents thought he was not mentally ill?
The Court: He’s made that clear.
20
Freeman testified as follows in this regard:
(continued...)

-29-
20
(...continued)
Counsel: Now, what arrangements did you make with Dr.
Murphy regarding his testimony in the second stage of the trial?
Freeman: I arranged with him to come to Elk City the evening
before we anticipated calling him if we were going to call him. . . .
And then that evening, though, after having evaluated the evidence
that was presented by the State in the second stage, and as I recollect
we had put on some of our evidence, I determined that in putting
him on with the conclusion that he was going to give the State, that
although he would say that there were brain abnormalities in Mr.
Bryan’s brain, that his bottom line, his conclusions were that he had
the ability to form intent, that he knew what he was doing and he
knew the consequences of his acts.
And I was fearful that if I did that, that would just more nearly
accentuate the position of the State, that he was prone to be and
could be a danger to society and would probably hurt my case more
than it would help it. So I elected not to call him and I called him
that evening and told him that he could go back home.
....
Counsel: In your own words, please explain your second-stage
trial strategy in this case.
Freeman: We had taken the position throughout the trial, by
reason of the fact that I could not demonstrate by medical testimony
or evidence that Mr. Bryan was insane, he had already been
determined competent on, I believe, either two or three occasions,
. . . that if I raised that as a defense and put on that evidence . . . I
started a process and I couldn’t get to where I wanted to go ethically
and honestly because they were not going to say that he was insane.
If I tried to do that, then I compromised Mr. Bryan’s position
in the trial of the case and elected to make the State prove and
try—beyond a reasonable doubt and try to create a sufficient doubt
that the jury would believe that he had not committed the offense
with which he was charged.
In the second stage, then, as I said, Dr. Smith was out. He
hadn’t been considered for some time because of what he said. I had
visited on either two or three occasions with Dr. Murphy, and he had
told me, you know, that he found brain abnormalities, but that the
(continued...)

-30-
 Accordingly, when viewed as a whole, the testimony at the evidentiary

hearing simply does not support Bryan’s assertion that Freeman suffered under a

misapprehension as to the propriety of adducing mental health evidence short of

an insanity diagnosis during the penalty phase of the trial. Instead, the testimony

set out above demonstrates a concern with two considerations. First, Freeman

was concerned that testimony by either Dr. Smith or Dr. Murphy might play into

the prosecution’s case that Bryan was a continuing threat to society. See Cannon

v. Gibson, 259 F.3d 1253, 1277-28 (10th Cir. 2001) (noting that mental health

evidence like that at issue here has the possibility of being a “two-edged

sword”). 21 Second, Freeman was concerned that an about-face during the penalty

(...continued)
20

bottom line was that he could form the intent, that he knew the
difference in right and wrong, and that he knew the consequences of
his acts.
And as I say, in the second stage, I felt that I would
compromise myself if I tried to get into that or compromise Mr.
Bryan and myself and I was fearful that his testimony would simply
support the theory and the evidence of the State.
21
Hess admitted the truth of this proposition under cross-examination at the
evidentiary hearing:
Counsel: Regarding mitigation evidence, and particularly
evidence of a psychological problem with the defendant, would you
agree that that sometimes can be a double-edged sword in a capital
case?
Hess: Very much so.
Counsel: And that often a jury might accept evidence of
psychological or emotional problems as evidence of aggravation?
Hess: Yes, sir. I’ve had that happen in several cases.

-31-
phase might compromise Bryan in the eyes of the jurors. 22 Bryan has simply not

pointed to any evidence in the record sufficient to overcome the “strong

presumption” that Freeman’s decision not to present mental health evidence

during the penalty phase of the trial was a strategic decision. Strickland, 466

U.S. at 689. 23

Having determined that Freeman’s decision not to present mental health

evidence during the penalty phase was strategic, this court moves on to the

question whether that strategic decision was reasonable when viewed from

Freeman’s perspective at the time of the trial. See id. at 690. Perhaps most

importantly, Bryan did not want Freeman to present any psychiatric evidence,

Bryan’s legal expert witness, Tim Wilson, testified during the evidentiary
22

hearing that this was an important consideration:
Counsel: You mentioned that sometimes the second stage
investigation ends up being used in the first stage. Why does that
happen?
Wilson: Well, the kiss of death in death penalty litigation
would be to have an inconsistent defense to—pardon the expression
“kiss of death,” but to run a denial—typically a denial defense in
first stage and then in second stage suddenly turn around and
introduce remorse and things like that are inconsistent and simply
don’t work. And the theory is that both stages must dovetail
together. You should try to front-load as much of your mitigation as
possible in an effort to save your client’s life.
23
See also Bullock v. Carver, 297 F.3d 1036, 1047, 1051 (10th Cir. 2002)
(noting that although the ultimate question is always whether counsel’s
performance fell below an objective standard of reasonableness, “where it is
shown that a challenged action was, in fact, an adequately informed strategic
choice, we heighten our presumption of objective reasonableness and presume
that the attorney’s decision is nearly unchallengeable”).

-32-
was adamant about pursuing an innocence defense during the guilt phase of his

trial, and had apparently refused to even consider a guilty plea in exchange for a

life sentence. See, e.g., Romano, 239 F.3d at 1181; Smith v. Massey, 235 F.3d

1259, 1278 (10th Cir. 2000); Wallace, 191 F.3d at 1247-48. This court must

presume that Bryan was competent to make that determination. See Bryan III,

276 F.3d at 1169-72. Furthermore, the record reveals that Hess specifically

discussed with Bryan his proposed strategy of utilizing mental health evidence

during the first stage of the trial as a foundation for a strong mitigation case

during the penalty phase of the trial, asserting that this was the only viable

strategy to save Bryan’s life. 24 In response, Bryan terminated Hess and hired

Freeman. Freeman, well aware of this history after having met with Hess to

discuss the case, and well aware that no medical expert would support a guilt-

phase insanity defense, complied with Bryan’s informed strategic choice and put

the government to its proof at trial.

It is worth emphasizing again what was stated above: “Counsel’s actions

are usually based, quite properly, on informed strategic choices made by the

defendant and on information supplied by the defendant.” Strickland, 466 U.S. at

691. Although this strategy limited Bryan’s options during the penalty phase, it

24
As noted above, Bryan’s legal expert, Wilson, concurred with Hess’
assessment that to be effective mitigation evidence, the mental health evidence
had to be incorporated into the guilt phase of the trial. See supra n.22.

-33-
was not objectively unreasonable for Freeman to utilize an innocence defense

during the guilt phase for those reasons set out above. Furthermore, in light of

the testimony of Hess, Wilson, and Freeman regarding the need for consistency

between guilt and penalty phase presentations, and the possibility that Dr.

Murphy’s testimony during the second stage could have supported the

prosecution’s argument that Bryan constituted a continuing threat to society, it

was not unreasonable for Freeman to utilize a mercy approach during the penalty

phase. 25 Bryan has simply not overcome the strong presumption set out in

25
The dissent relies on the Supreme Court’s recent decision in Wiggins v.
Smith, 123 S. Ct. 2527 (2003), to support its assertion that Freeman’s
performance during the penalty phase was ineffective because Freeman did not
present evidence of Bryan’s mental illness. In Wiggins, however, the basis of the
petitioner’s claim was that his counsel’s failure to present potential mitigation
evidence flowed from the failure to conduct an adequate investigation. See id. at
2535 (“In this case, as in Strickland, petitioner’s claim stems from counsel’s
decision to limit the scope of their investigation into potential mitigation
evidence.”). The Court began its analysis of petitioner’s claim by noting as
follows: “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and stratgic choices
made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.”
Id. at 2535 (quotation omitted). Because petitioner’s counsel had conducted a
plainly inadequate investigation, and because copious and powerful mitigating
evidence would have been discovered if an adequate investigation would have
been conducted, the court concluded that counsel’s failure to present mitigation
evidence during the penalty phase was not insulated from review as a strategic
decision and was, in fact, unreasonable. Id. at 2541-42.
As set out at length above, there is no question that Freeman was fully
aware of Bryan’s history of mental illness. Well aware of that history, and its
failure to provide a defense at the guilt stage of the trial, Freeman complied with
(continued...)

-34-
Strickland that Freeman provided objectively reasonable assistance during the

penalty phase of the trial. 26

IV. CONCLUSION

This court cannot say, under the facts set out above, that Freeman’s

strategic choice not to present mental health evidence during Bryan’s trial was

objectively unreasonable. “There are countless ways to provide effective

assistance in any given case.” Strickland, 466 U.S. at 689; see also Nix v.

Whiteside, 475 U.S. 157, 165 (1986). We are mindful that it is “all too easy for a

court, examining counsel’s defense after it has proved unsuccessful, to conclude

that a particular act or omission of counsel was unreasonable.” Strickland, 466

25
(...continued)
his competent client’s wishes to put the government to its burden of proof at the
guilt stage of the trial. Aware of the serious problems associated with presenting
inconsistent theories during the guilt and penalty phases, concerned that Dr.
Murphy’s testimony might do more harm than good during the penalty phase, and
conscious of his client’s consistently expressed refusal to rely on mental health
evidence, Freeman made a strategic choice to seek mercy during the penalty
phase. This strategic choice is “virtually unchallengeable.” Id. at 2535. Wiggins
simply does not speak at all to the circumstances of this case.
26
Bryan seems to assert that, even independent of the question of the use of
medical evidence during the penalty phase, Freeman’s presentation was deficient.
He does not, however, present a Strickland analysis of anything other than the
failure to utilize the medical evidence. Accordingly, this court does not consider
the matter further. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th
Cir. 1998) (holding that “[a]rguments inadequately briefed in the opening brief
are waived”).

-35-
U.S. at 689. Thus, “in considering claims of ineffective assistance of counsel, we

address not what is prudent or [even] appropriate, but only what is

constitutionally compelled.” Burger v. Kemp, 483 U.S. 776, 794 (1987)

(quotation omitted). In this case, Bryan has failed to establish that “in light of all

the circumstances, [counsel’s] identified acts or omissions were outside the wide

range of professionally competent assistance.” Strickland, 466 U.S. at 690.

-36-
HENRY, J., concurring in part and dissenting in part; Judges SEYMOUR,
EBEL, and LUCERO, join:

RE: 00-6090, Bryan v. Mullin

Robert Leroy Bryan is a delusional, severely diabetic victim of organic

brain damage. He had been charged with solicitation of murder several years

previous to this crime, but was found incompetent and subsequently

institutionalized. Unfortunately for many, after intensive treatment, he was

released. Amazingly, he was not monitored. Mr. Bryan’s illness manifested

itself again in his deluded and tragic actions that led to the case at hand. Mr.

Bryan repeated the most significant portions of his earlier attempted crime, using

the same location to conceal the body that he had revealed to the police in the

solicitation crime and the same tactic of seeking to use unsigned and forged

checks to repay his “business losses.” He “repeated” his previous crime, but this

time, he killed his Aunt Inabel, whom he believed (and this is not contested)

owed him several million dollars from cheating him out of fictional monies owed

for fictional inventions.

Despite the compelling evidence in the record regarding Mr. Bryan’s

history of mental illness, and despite the fact that the sentencing jury never heard

that evidence, the majority concludes that Mr. Bryan did not receive ineffective

assistance of counsel at sentencing. The majority concludes that Mr. Freeman

was fully aware of the potential use of mental health testimony at sentencing, but
that his client forbade the use of this compelling testimony in the sentencing

phase. The majority also notes that counsel feared adopting an approach in the

sentencing phase that might appear inconsistent with the guilt phase strategy.

And, the majority concludes that counsel was concerned that the mental health

testimony might be viewed to support future dangerousness.

This reasoning is untenable. Mr. Bryan’s counsel provided the most

ineffective defense I have ever seen, amounting to a concession of guilt and

relating none of the reams of compelling mitigating evidence. First, the record

shows that Mr. Bryan’s counsel clearly did not even understand that the mental

health evidence might have been used in an attempt to reduce Mr. Bryan’s

culpability at sentencing. Next, case law and common sense make clear that

counsel’s reliance on directions from a deeply disturbed client such as Mr. Bryan

cannot insulate him from his duty to present mitigating evidence. Third, counsel

did not inform his client about the purpose of the sentencing stage and what role

the mental health history might have played, thus, further negating any reliance

on Mr. Bryan’s wishes. Finally, counsel’s performance at Mr. Bryan’s sentencing

cannot be insulated by conferring upon it an ex post strategy that did not exist.

Similarly, we cannot insulate an unreasonable tactic not to present mitigating

evidence by labeling it a two-edged sword. Mr. Bryan’s lawyer was clearly

ineffective as a matter of law.

-2-
 I. BACKGROUND

Mr. Bryan had three defense attorneys (two of them court-appointed)

before his parents, seeking to help him, fired his public defender and mortgaged

their home to hire Mr. Freeman. Mr. Freeman, in what was his third capital case,

charged the elderly Bryans the sum of $50,000 for his services. Had the Bryans

not tried to help, paradoxically, I believe that Leroy Bryan would not be facing

execution today.

Mr. Bryan sincerely relayed the same intricate plots and stories to all four

of his attorneys, explaining the circumstances regarding the murder in elaborate

and unwavering detail, which apparently had no factual basis at all. All four

attorneys agreed, however, that Mr. Bryan adamantly and genuinely believed this

story to be true. In addition, each attorney explained the difficulties he had in

attempting to communicate with Mr. Bryan, and explained that no facet of Mr.

Bryan’s outrageous stories could be confirmed. At times he appeared delusional,

would ramble, appeared agitated, and would exhibit apparent paranoia through

bizarre discourses concerning attorneys, bankers, jailers, and even a judge, all of

whom, Mr. Bryan believe, were out to get him. See e.g. Retro. Comp. Hr’g, vol.

II, at 285, 301 (Mr. Bryan exhibited “what to me was paranoid delusional talk,

and then that coupled with the fact that the information was all unverifiable or

incorrect.” “He simply was not able to separate reality from fiction.”) (testim. of

-3-
Wesley Gibson, former counsel); id. vol. I, at 229 (“[A]s for a rational

communication effectively assisting me, I didn’t see it.”) (testim. of Steven B.

Hess, previous counsel).

All the three previous counsel also indicated that they did not believe Mr.

Bryan was able to assist in his defense. Two medical experts, well-versed in Mr.

Bryan’s medical history and also familiar with his delusions and history of mental

illness, also testified that Mr. Bryan was unable to assist in his defense, because

he suffered from an irreversible brain pathology, chronic paranoid schizophrenia.

There was evidence also of organic delusional disorder, evidenced by a brain

SPECT scan. 1

Only one “expert” examined Mr. Bryan for the State. The expert’s cursory

one-hour evaluation, which preceded the trial by more than one year, produced no

evidence of a mental illness at the time of the exam. The expert testified that he

did not review the complete discharge summary from Mr. Bryan’s earlier

commitment to Eastern State Hospital, which revealed that Mr. Bryan suffered

from organic delusional disorder. This expert, who was conducting his third or

perhaps his fourth such evaluation at the time, acknowledged that Mr. Bryan’s

delusional disorder might be so well integrated that he would not have been able

to discern it during his evaluation. This expert never spoke with Mr. Bryan on

1
The SPECT scan, like all the evidence proving organic brain damage,
was never presented to the jury.

-4-
any topic relating to his delusions, which were only apparent when the

conversation turned to a topic related to his paranoia, or his fictional schemes.

This expert was, incredibly, unfamiliar with Navane, the anti-psychotic agent and

“most important drug” that Mr. Bryan was prescribed while at Eastern State. See

Retro. Comp. Hr’g, vol. I., at 138 (testim. of Dr. Philip J. Murphy). Thus, he was

familiar with neither Mr. Bryan’s record of treatment nor his treatment.

Although the State initially offered to sentence him to life without parole,

as the majority points out, Mr. Bryan stands today on the brink of execution,

because his final lawyer’s “strategy” was to hide from the jury any suggestion of

the above evidence at either the guilt or the sentencing phases. Influenced

perhaps by Mr. Freeman’s underwriters–Mr. Bryan’s parents–and also by Mr.

Bryan’s insistence upon his mental clarity, Mr. Freeman, who admits that he did

little preparation for the crucial sentencing phase, supposedly adopted a “residual

doubt” strategy, after that terminological haven was offered to him by the State

during postconviction proceedings. His “residual doubt” strategy entailed

admitting in his closing argument that Bryan had “killed” his aunt, and that this

act was “vile.”

Despite counsel’s purported familiarity with the above history, and his

admission that the stories relayed in all sincerity by Mr. Bryan were unrealistic

and “crazy,” and despite the remaining reams of documentation supporting Mr.

-5-
Bryan’s organic brain disorder, Mr. Freeman apparently thought the better tack

was to pretend Mr. Bryan was a perfectly normal defendant who was in a bad

spot. Thus, Mr. Freeman presented none of the information discussed above to

the jury.

So, found guilty and given no coherent defense in the sentencing phase,

Mr. Bryan is sentenced to die. His competency called into question again, a

constitutionally “disfavored” new competency hearing was ordered, where the

jury was fully informed of the nature of his crime, the persons affected thereby,

his conviction, and his sentence–essentially suggesting that he might be released

if not found competent. Not surprisingly, the jury found Mr. Bryan, clad

throughout the proceedings in his prison issue orange jumpsuit, competent. 2

2
Curiously, we have infrequently deemed it necessary to assess the
propriety of such questionable hearings. The record reveals that the prospective
jurors were told about the crime, and about Mr. Bryan’s conviction and that they
were simply revisiting Mr. Bryan’s competency at the time of the crime.
I regret that out of the pool of twelve prospective jurors, several knew Mr.
Bryan personally, having lived close by. One attended church with Mr. Bryan,
and knew him through church events. Another was a former student from Mr.
Bryan’s science class. At least two had read about the crime, had followed the
trial in the newspapers, and had formed opinions about Mr. Bryan’s guilt. Retro.
Comp. Hr’g, vol. I, at 20 (“Yeah. I believe he done it.”). The final six chosen to
serve included Mr. Bryan’s former student, and the juror who testified that she
believed Mr Bryan had committed the crime. Mr Bryan was also easily
identifiable by witnesses and jurors alike, because he wore the orange jumpsuit
of a convicted inmate.
Although the makeup of the jury has not been contested and is not
contested by Mr. Bryan, I am even more inclined to disfavor reliance on such
retrospective hearings when the jurors are informed of the conviction and his
(continued...)

-6-
 The Supreme Court recently reminded us that

“retribution and deterrence of capital crimes by prospective offenders

[are] the social purposes served by the death penalty. Unless the

imposition of the death penalty on a mentally retarded person

“measurably contributes to one or both of these goals, it is nothing

more than the purposeless and needless imposition of pain and

suffering, and hence an unconstitutional punishment.”

Atkins v. Virginia, 536 U.S. 304, 319 (2002) (quoting Enmund v. Florida, 458

U.S. 782, 798 (1982)). As discussed in detail below, the imposition by the State

of Oklahoma of the death penalty against Mr. Bryan contributes nothing to either

of these two legitimate goals, and also is not constitutional.

2
(...continued)
status on death row facing execution before and while they pondered his
competency, and while staring at his convict’s orange jumpsuit. I would hope
that in holding a retrospective competency hearing, a judge, and the OCCA,
would “foresee the possibility of a jury becoming so incensed or angered about
the circumstances of a crime that the decision regarding [competence] is unduly
influenced. The . . . hearing . . . would seek to forestall that possibility and
assist” the court. Murphy v. State, 54 P.3d 556, 569 n.24 (Okla. Crim. App.
2002) (outlining aspirations for “an Atkins hearing”). Similarly, the hearing
should “not to be a mere rubber-stamping of the jury’s factual determinations, but
an independent review of the evidence of [competency] by an objective, neutral
[jury], uninfluenced by the nature and circumstances of the crime, the persons
affected thereby, or any outside influence.” Id. at n.25. Clearly, Mr. Bryan
benefitted from no such insulation of the jury at his retrospective competency
hearing.

-7-
 II. OVERVIEW

Before turning to the disagreements I have with the majority’s approach, I

must compliment the majority’s studiously fair recitation of the case’s

background. And, I concur with the majority’s conclusion in Part III.A that Mr.

Bryan was entitled to an evidentiary hearing before the district court, and that

pursuant to Miller, we review de novo whether counsel’s performance was

legally deficient and whether the deficiencies prejudiced the defendant.

As to the majority’s conclusion that Mr. Freeman did not provide

ineffective assistance of counsel at the guilt phase, as stated in my original panel

dissent, I believe Mr. Freeman’s performance was ineffective for failing to

introduce evidence of Mr. Bryan’s mental illness. However, as I did previously, I

will focus on Mr. Bryan’s strongest argument, that is, whether Mr. Freeman’s

performance at the sentencing stage was similarly ineffective.

As stated in my original panel dissent, even under AEDPA’s rigid and

deferential standard of review, I believe that the OCCA unreasonably applied

federal law when it concluded that Mr. Freeman’s performance was effective.

See Bryan v. Gibson, 276 F.3d 1163, 1171-85 (10th Cir. 2001) (Henry, J.,

dissenting). However, given our de novo review of Mr. Freeman’s performance,

this conclusion is that much easier to reach. Mr Freeman’s performance during

the sentencing phase fell outside the range of professionally competent assistance

-8-
and constituted ineffective assistance of counsel for failure to present testimony

regarding Mr. Bryan’s history of mental illness.

A. The Majority’s Holdings Regarding Counsel’s Performance at
Sentencing

The majority summarizes Mr. Bryan’s ineffective assistance claim at

sentencing as twofold: first, that Mr. Freeman did not understand that he did not

have to establish incompetence to present mental health evidence in mitigation;

and second, that Mr. Freeman failed to advise and inform Mr. Bryan of the use

and potential benefit of the mental health evidence. As to Mr. Freeman’s

ignorance, the majority responds that the evidentiary hearing testimony

establishes that Mr. Freeman was well-versed in the use of mental health history

at the sentencing phase. The majority also relies on Mr. Freeman’s hesitance to

use the information because it might provide support for the continuing threat to

society aggravator. And, in response to the challenge to Mr. Freeman’s failure to

explain the import and significance of the sentencing phase to his client, the

majority relies on Mr. Bryan’s perceived instructions not to present an insanity

defense and defends Mr. Freeman’s strategy at sentencing.

B. Summary of Why the Majority Opinion Fails

-9-
 Upon a very close examination of these unique facts, the faulty premises of

these arguments emerge. First, Mr. Freeman did not fully appreciate the nature

of the testimony offered by the medical experts regarding his client’s condition.

The testimony presented at the evidentiary hearing clearly establishes that Mr.

Freeman felt compelled to present mental health testimony only if it would be

“useful,” that is, to establish incompetence. He did not recognize that testimony

of organic brain damage, delusions, and that his client was “crazy” would be

valuable mitigation evidence.

Second, a client’s wishes or direction as to the approach at sentencing is

not unassailable and is by no means binding, even in a case where there is little

or no indication of mental distress. Here, society’s real interest is in securing a

just result that accurately assesses the culpability of those it prosecutes.

Additionally, there is evidence that Mr. Bryan’s parents influenced the decision

not to present any of this compelling evidence.

Third, Mr. Freeman did not adequately inform his client about the purpose

of the sentencing phase or the nature of the evidence that might be presented.

The majority errs by relying on Mr. Freeman’s reliance on conversations his

client may have had with previous counsel as to the purpose of, and strategy

behind, the sentencing phase.

-10-
 Fourth, the majority mischaracterizes Mr. Freeman’s “strategic decision” to

adopt a “residual doubt” strategy because of the “need for consistency” between

the guilt and sentencing phases. Unquestionably, consistency between the phases

is ideal, but Mr. Freeman’s purported strategy did nothing to preserve such

consistency – his sentencing strategy squarely contradicted his guilt phase

approach. The majority implicitly admits as much recognizing that Mr.

Freeman’s residual doubt approach was at best weak, and by characterizing it as a

“mercy” approach. The majority also credits Mr. Freeman’s concerns about the

mental health evidence serving to support the continuing threat aggravator,

without consideration of the particular mitigating evidence present before us. As

a whole, Mr. Freeman’s sentencing stage performance was completely

deficient–resulting in a residual doubt strategy that admitted the crime–and hence

resulted in prejudice to his client.

III. DISCUSSION

A. Deficiency of Counsel’s Performance

In reviewing Mr. Freeman’s performance, we bear in mind that “‘[o]ur duty

to search for constitutional error with painstaking care is never more exacting

than it is in a capital case.’” Mitchell v. Gibson, 262 F.3d 1036, 1063 (10th Cir.

2001) (quoting Kyles v. Whitley, 514 U.S. 419, 422 (1995) (internal quotation

-11-
marks omitted)). The Supreme Court has held that it is critical to the reliability

of a capital sentencing proceeding that the jury render an individualized decision.

See Gregg v. Georgia, 428 U.S. 153, 206 (1976) (in upholding the Georgia

capital sentencing scheme at issue, emphasizing that “[t]he new Georgia

sentencing procedures . . . focus the jury’s attention on the particularized nature

of the crime and the particularized characteristics of the individual defendant”)

(emphasis added). “The jury in this case was effectively walled off from key

mitigating evidence that went to the particularized characteristics of the

individual defendant.” Id. at 206. No judge or jury has ever weighed Mr.

Bryan’s “particularized characteristics” in deciding whether the death penalty

would be a constitutionally appropriate punishment.

“The sentencing stage is the most critical phase of a death penalty case.

Any competent counsel knows the importance of thoroughly investigating and

presenting mitigating evidence.” Romano v. Gibson, 239 F.3d 1156, 1180 (10th

Cir. 2001). “[T]he sentencer may not refuse to consider or be precluded from

considering ‘any relevant mitigating evidence.’” Skipper v. South Carolina, 476

U.S. 1, 4 (1986) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)).

Accordingly, “the sentence imposed at the penalty stage should reflect a reasoned

moral response to the defendant’s background, character, and crime.” California

v. Brown, 479 U.S. 538, 545 (1987) (emphasis in original) (O’Connor, J.,

-12-
concurring); see also Mayes v. Gibson, 210 F.3d 1284, 1288 (10th Cir. 2000)

(noting that mitigation evidence “affords an opportunity to humanize and

explain– to individualize a defendant outside the constraints of the normal rules

of evidence”). “Consideration of such evidence is a ‘constitutionally

indispensable part of the process of inflicting the penalty of death.’” Brown, 479

U.S. at 541 (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)

(plurality)).

Thus, a criminal defendant who is charged with a capital offense has the

right to present virtually any evidence in mitigation at the penalty phase. See

Hitchcock v. Dugger, 481 U.S. 393, 399 (1987). “We are therefore compelled to

insure that the sentencing jury makes an individualized decision while equipped

with the ‘fullest information possible concerning the defendant's life and

characteristics,’ and must scrutinize carefully any decision by counsel which

deprives a capital defendant of all mitigation evidence.” Mayes, 210 F.3d at

1288 (quoting Lockett v. Ohio, 438 U.S. 586, 603 (1978)). When examining

counsel’s investigation and presentation of mitigation evidence, “the right to

present mitigating evidence to the jury is constitutionally protected,” Mayes, 210

F.3d at 1288, and, as the majority points out, that there is a corresponding “need

to apply even closer scrutiny when reviewing attorney performance during the

sentencing phase of a capital case.” Battenfield v. Gibson, 236 F.3d 1215, 1226

-13-
(10th Cir. 2001) (quoting Cooks v. Ward, 165 F.3d 1283, 1294 (10th Cir. 1998));

see also Duckett v. Mullin, 306 F.3d 982, 997 (10th Cir. 2002) (same) (quoting

Battenfield).

a. Counsel’s Ignorance of the Use of Mental Health Testimony at
Sentencing

The majority asserts that Mr. Freeman appreciated the nature of the reports

and conclusions offered by two psychiatrists, Drs. John R. Smith and Philip J.

Murphy. Dr. Smith made the following conclusions regarding Mr. Bryan’s

mental state:

[Mr. Bryan suffers from an] extensive paranoid delusional system,
fragmentation of thought, circumstantial thinking, and . . . diabetes.

[The] delusional system and circumstantiality of thought . . . affect his
ability to assist his attorney in his own defense.

....

While he has an understanding of the charges against him, as
many schizophrenic people do, this is no way modifies their real belief
in their delusional system and cannot be interpreted accurately by the
court to mean that he is capable, as in a person without a serious mental
disorder, of participating in their own defense.

Evid. Hr’g Ex. 1.

Dr. Murphy reported that “Mr. Bryan suffers from a serious mental

disorder which places into serious question his competence to stand trial, as well

as his legal culpability in the crimes for which he is charged.” Evid. Hr’g Tr. at

-14-
95. Finally, in language that Mr. Freeman should have clearly understood, both

Drs. Smith and Murphy referred to Mr. Bryan as “crazy.” Evid. Hr’g Tr. at 83;

Retro. Comp. Hr’g, vol. I, at 135.

In addition, Dr. E. William Allen, testified about the results of Mr. Bryan’s

SPECT scan. The SPECT scan results independently verified the preliminary

tests performed by Drs. Murphy and Smith. The SPECT scan enables one to

detect areas of dead or severely damaged brain tissue. Dr. Allen concluded that

Mr. Bryan suffered from multiple areas of brain damage that raised serious

concerns. He also noted that the brain deterioration was irreversible. As to what

the SPECT scan indicated and would have shown had it been presented, Dr.

Murphy later testified that Mr. Bryan suffered from “organic delusional

disorder,” meaning, in Dr. Murphy’s words, that Mr. Bryan is “crazy” and suffers

from “paranoid,” “grandiose,” and “persecutory” thinking. Retro. Comp. Hr’g

vol. I, at 135.

In response to such reports, Mr. Freeman stated that he understood both

Drs. Smith and Murphy to have said that Mr. Bryan was crazy, but that he was

not legally insane. Mr. Freeman feared that because Mr. Bryan had the ability to

form intent, that any testimony regarding his mental distress would indicate that

Mr. Bryan was a danger to society.

-15-
 In response to the request to “please explain your second-stage trial

strategy in this case,” Mr. Freeman responded:

We had taken the position throughout the trial, by reason of the fact
that I could not demonstrate by medical testimony or evidence that Mr.
Bryan was insane, he had already been determined competent on, I
believe, either two or three occasions, two juries in Beckham County
and one other doctor, plus the doctor in Granite had determined that he
was competent, that if I raised that as a defense and put on that
evidence, No. 1, I started a process and I couldn’t get to where I
wanted to go ethically and honestly because they were not going to say
he was insane.

If I tried to do that, then I compromised Mr. Bryan’s position in the
trial of the case and elected to make the State prove and try – beyond
a reasonable doubt and try to create a sufficient doubt that the jury
would believe that he had not committed the offense with which he was
charged.

In the second stage, then, as I said, Dr. Smith was out. He hadn’t been
considered for some time because of what he said. I had visited on
either two or three occasions with Dr. Murphy, and he had told me, you
know, that he found brain abnormalities, but that the bottom line was
that he could form the intent, that he knew the difference in right and
wrong, and that he knew the consequences of his acts.

And as I say, in the second stage, I felt that I would compromise myself
if I tried to get into that or compromise Mr Bryan and myself and I was
fearful that his testimony would simply support the theory of the State.

Evid. Hr’g Tr. at 86-87. Besides underestimating Dr. Murphy’s written report I

quoted earlier, nowhere did Mr. Freeman apparently consider or recognize the

preeminent purpose of sentencing–to create an individualized history of Mr.

Bryan in hopes that the jury might base its sentencing decision on the fullest

information available. Nowhere did Mr. Freeman recognize that Mr. Bryan’s

-16-
organic delusional disorder might serve to humanize his client. Mr. Freeman

determined that if the experts could not say Mr. Bryan was insane or incompetent

at the trial stage, their testimony that he was delusional, “crazy,” and had

substantial dead brain tissue was therefore excluded because it was irrelevant. 3

Similarly, because no expert would say that Mr. Bryan was insane or

incompetent, their testimony, he incredibly believed, was rendered useless for any

portion of the trial. 4

Additionally, and perhaps even more telling, Mr. Freeman never asked Dr.

Allen about the importance of his findings. See Evid. Hr’g Tr. at 98. Mr.

3
As to note 19 of the majority opinion, I think it is not completely clear
whether Mr. Freeman had shifted gears and was commenting of the relevance of
the parents’ statements rather than those of the medical experts. In any event,
under any reading of the evidentiary hearing testimony, Mr. Freeman’s utter
disregard of the nature of the medical experts’ testimony is resoundingly clear.
4
Despite this, Mr. Freeman testified to the following:

Q: Up to this point, it has not occurred to you, has it, that if Leroy
were organically brain damaged and mentally ill he might not be
executed?

Mr. Freeman: It occurs to me that if that were a current opinion
based upon his current condition then your answer might be true.

Q: But if that were true at the time of trial, the jury might not have
given him the death penalty, right?

Mr. Freeman: They might not have.

Evid. Hr’g Tr. at 110.

-17-
Freeman never appreciated the visual uses of the SPECT scan. At the evidentiary

hearing, both former counsel Mr. Hess and defense expert and assistant public

defender Tim Wilson underscored the importance of the SPECT scan. See e.g.

Evid. Hr’g Tr. at 33 (“The major issue for mitigation would have been the

SPECT scan.”) (testim. of Steven B. Hess, previous counsel); id. at 58 (“[The

SPECT scan] makes a great exhibit.”) (testim. of Tim Wilson). And Mr.

Freeman, whose understanding of the SPECT scan was limited, never intended to

have Dr. Allen testify, which would have clearly and independently verified the

clinical results found by the psychiatrists.

Mr. Bryan had no appreciation that psychiatric mitigating evidence not

only can act in mitigation, it also could significantly blunt the force of the

aggravating factors. “[T]here is a great difference between failing to present

evidence sufficient to establish incompetency at trial and failing to pursue mental

health mitigating evidence at all.” Hardwick v. Crosby, 320 F.3d 1127, 1164

(11th Cir. 2003) (quoting Blanco v. Singletary, 943 F.2d 1477, 1503 (11th Cir.

1991)). The majority ignores the possibility that “[o]ne can be competent to

stand trial and yet suffer from mental health problems that the sentencing jury

and judge should have had an opportunity to consider.” Id. I cannot agree that

Mr. Freeman’s approach to the sentencing phase, which amounted to a denial of

-18-
any of Mr. Bryan’s serious and evident mental disorders, was justifiable or

reasonable.

b. Mr. Bryan’s Wishes Regarding Mental Health Evidence

Mr. Freeman attempts to defend his blueprint for the sentencing phase by

relying heavily upon his client’s wishes that he not present evidence of mental

health history. Despite the unrefuted evidence of Mr. Bryan’s longstanding

delusions, the majority’s holding adopts Mr. Freeman’s argument, which

contradicts case law from this and other circuits.

(i) Mr. Bryan’s desires are not sacrosanct

“Most importantly,” asserts the majority, “[Mr.] Bryan did not want [Mr.]

Freeman to present any psychiatric evidence.” Maj. Op. at 32. The majority thus

supplies a shield for Mr. Freeman: his “competent” client told him not to present

evidence of mental health. In light of Mr. Bryan’s long history of mental illness,

it is difficult to characterize his decision as an informed strategic choice.

“In every trial there is more at stake than just the interests of the accused.”

Mayberry v. Pennsylvania, 400 U.S. 455, 468 (1971) (Burger, C. J., concurring).

“Mitigating evidence plays an overwhelmingly important role in the ‘just

imposition of the death penalty. . . . As a practical matter, the defendant

probably has little or no chance of avoiding the death sentence unless the defense

-19-
counsel gives the jury something to counter both the horror of the crime and the

limited information the prosecution has introduced about the defendant.”

Romano, 239 F.3d at 1180 (internal quotation marks omitted).

A defendant’s desires not to present mitigating evidence do not terminate

counsel’s responsibilities during the sentencing phase of a death penalty trial:

“The reason lawyers may not ‘blindly follow’ such commands is that although the

decision whether to use such evidence is for the client, the lawyer first must

evaluate potential avenues and advise the client of those offering potential

merit.” Blanco, 943 F.2d at 1502 (internal quotation marks omitted). See id. at

n.19 (“We note that a defendant’s decision concerning the use of mitigating

evidence is more an aspect of overall strategy than a decision as to which

witnesses would provide the best legal support for a defense.”); see also State v.

Hightower, 518 A.2d 482, 483 (N.J. Super. Ct. App. Div. 1986) (noting that

despite competent defendant’s preference to simply appeal the guilt determination

and forego defense at sentencing hearing, counsel should insist upon presenting

any evidence of mitigating factors, because “[i]f the jury did not hear the

evidence allegedly in mitigation, it could have difficulty discharging its statutory,

and indeed moral, duty” to weigh aggravating and mitigating factors).

Thus, although Mr. Bryan was deemed competent at the constitutionally

disfavored, and in this case highly suspect, retrospective competency hearing, see

-20-
McGregor v. Gibson, 248 F.3d 946, 962 (10th Cir. 2001) (“Retrospective

competency hearings are generally disfavored.”) (internal quotation marks

omitted), his opinion about whether or not to present evidence of mental health

history during the sentencing phase is assuredly not sacrosanct. The attorney’s

duty to society may demand that, in narrow sets of circumstances, counsel

exercises her independent professional judgment. See Evid. Hr’g Tr. at 25 (“My

obligation, as trial counsel, . . . is to present the best defense, both in Stage 1 and

Stage 2, I can with an eye toward saving my client no matter what my client’s

desires are. . . . I consider the presentation of the insanity defense one of those

issues that my co-counsel and I decided which at times would conflict with our

client’s desires.”) (testim. of Steven B. Hess, former counsel) (emphasis added);

id. at 77 (“ I feel that if I have a client that’s insisting innocence that, if he chose

to, I would put him on the stand and let him testify. . . . But the client has no

choice about whether to present a mental health defense. . . . I’ll have him testify

he’s innocent, but I’ll present my mental health evidence.”) (testim. of Tim

Wilson). See also Hightower, 518 A.2d at 483 (reversing lower court conclusion

that legally competent defendant’s wishes should prevail).

(ii) Tenth Circuit precedent regarding waiver of mitigation evidence

Recently, in Battenfield v. Gibson, 236 F.3d 1215, the defendant, Mr.

Battenfield, who was deemed competent and had no documented history of

-21-
mental distress apart from chemical dependence, instructed his counsel not to

present any evidence at the sentencing phase of the trial. The available

mitigating evidence, as summarized by the court, included:

(a) evidence that Battenfield’s father and grandfather were involved in
moonshining, (b) Battenfield’s involvement in a serious car accident at
age 18, during which he sustained a serious head injury and after which
he heavily used alcohol and drugs, (c) Battenfield’s family history of
alcoholism and possible drug addiction, (d) mental health evidence,
including evidence that Battenfield suffered from substance addiction,
(e) the underlying circumstances of Battenfield’s previous conviction
for assault and battery, which allegedly occurred while he was under
the influence of drugs and alcohol and was an act of self-defense, (f)
evidence from family members and friends indicating that Battenfield
was known for his compassion, gentleness, and lack of violence, even
when provoked, and (g) testimony of prison personnel describing the
security where Battenfield would be incarcerated if given a life
sentence.

Id. at 1226 (emphasis added).

After Mr. Battenfield was found guilty, he instructed his counsel not to

present any mitigating evidence in the second stage. His counsel advised him to

proceed with the mitigating evidence, and the court made specific inquiries to

Mr. Battenfield as to why he was opting not to present any testimony for

mitigation. The OCCA determined that Mr. Battenfield voluntarily waived his

right to present any mitigating evidence. We noted in terms remarkably

descriptive of this case that counsel:

never explained the general meaning of mitigation evidence to
Battenfield or what specific mitigation evidence was available.
[Battenfield’s counsel] acknowledged he never advised Battenfield that

-22-
 mitigation evidence might include evidence about Battenfield’s
substance abuse problems. At best, the evidence indicates that at some
point during the trial proceedings, [Battenfield’s counsel] discussed
with Battenfield his plan to present Battenfield’s parents as
second-stage witnesses and his strategy to have Battenfield’s parents
beg for Battenfield’s life. In an affidavit submitted in connection with
his application for post-conviction relief, Battenfield indicated that [his
counsel] never explained to him “the importance of mitigation or . . .
what mitigation actually [wa]s.” Battenfield Aff. ¶ 2.

Id. at 1229 (emphasis added). This bolstered our conclusion that, based on

counsel’s failure to apprise his client of “what particular mitigating evidence

was available in his case,” Mr. Battenfield’s waiver was not knowing and

voluntary. Id. at 1232. Judges Briscoe and Lucero thus held for the court that

“counsel’s deficient performance culminated in Battenfield waiving the right to

present mitigating evidence.” Id. at 1230.

Here, as indicated above, there is a serious question as to Mr. Freeman’s

level of appreciation for the vast amount of available evidence for mitigation.

Unlike in Battenfield, Mr. Freeman’s investigation was largely completed by his

predecessors and Mr. Freeman needed only to connect the dots. But

unfortunately for Mr. Bryan, Mr. Freeman arrived at the same spot as did

Battenfield’s counsel: He was “was unaware at the time of trial of various

mitigation strategies and accompanying pieces of evidence that could have been

presented during the mitigation phase by [mitigation witnesses]. Further,

[counsel] was wholly unprepared to rebut the aggravating factors argued by the

-23-
prosecution.” Id. at 1129. And, like counsel in Battenfield, Mr. Freeman’s

deficient performance “rendered unreasonable his alleged penalty-phase

strategy.” Id. 5 In addition, as noted below, Mr. Freeman’s failure to advise

5
As we noted in Battenfield, 236 F.3d at 1233, within months of Mr.
Bryan’s trial, the OCCA wisely established guidelines for courts to follow “when
a defendant refuses to allow the presentation of mitigating evidence in the
sentencing stage.” Wallace v. State, 893 P.2d 504, 512 (Okla. Crim. App. 1995).
The guidelines serve as benchmark for the trial court’s procedures, and ideally,
by trial counsel, when the record is replete with evidence of an organic brain
disorder. Those guidelines, intended to ensure that a defendant “has an
understanding of his or her rights . . . in the sentencing process, require a trial
court to:

‘(1) inform the defendant of the right to present mitigating evidence,
and what mitigating evidence is; (2) inquire both of the defendant and
his attorney (if not pro se) whether he or she understands these rights;
(3) inquire of the attorney if he or she has attempted to determine from
the defendant whether any mitigating evidence exists; (4) inquire what
that mitigating evidence is (if the defendant has refused to cooperate,
the attorney must relate that to the court); (5) inquire of a defendant
and make a determination on the record whether the defendant
understands the importance of mitigating evidence in a capital
sentencing scheme, understands such evidence could be used to offset
the aggravating circumstances proven by the prosecution in support of
the death penalty, and the effect of failing to present that evidence; (6)
after being assured the defendant understands these concepts, inquire
of the defendant whether he or she desires to waive the right to present
such mitigating evidence; and (7) make findings of fact regarding the
defendant’s understanding and waiver of rights.’

Battenfield, 236 F.3d at 1233 (quoting Wallace 893 P.2d at 512-13) (emphasis
added).
These guidelines are “little more than common sense and should have been
followed by the trial court.” Battenfield, 236 F.3d at 1233. They demonstrate
that, independent of his client’s wishes, counsel has the responsibility to evaluate
mitigating evidence and inform the trial court. Similarly, the Supreme Court has
(continued...)

-24-
his client as to the nature, importance, and purpose of the presentation of

mitigation evidence, foreclosed any possibility that he might reconsider his

position. See id. at 1230.

(iii) The Majority’s Misreading of Romano v. Gibson and Wallace v.
Ward

Despite our recent holding in Battenfield, the majority relies instead on

two of our circuit’s cases in support of its conclusion that Mr. Freeman had no

choice but to heed the wishes of his client. Undoubtedly, counsel’s strategy will

be based in part by the defendant’s choices and on information supplied by the

defendant. Thus, concludes the majority, Mr. Freeman’s second stage residual

doubt strategy was one that was responsive to Mr. Bryan’s wishes. See Maj. Op.

at 32.

(1) Romano v. Gibson

In Romano, the defendant challenged counsel’s effectiveness for failure to

present mitigating evidence of abandonment and possible abuse when he was a

toddler. In addition, he contended that he should have received a mental health

(...continued)
5

recently reiterated that the ABA Standards for Criminal Justice provide helpful
benchmarks for “determining what is reasonable.” Wiggins v. Smith, No. 02-311,
2003 WL 21467222, at *9 (U.S. June 26, 2003) (citing Strickland v. Washington,
466 U.S. 668, 688-89 (1984)). The ABA Standards require counsel to inform the
court of mitigating evidence. See A MERICAN B AR A SSOCIATION S TANDARDS FOR
C RIMINAL J USTICE 4-4.1, commentary, at 183 (1993) (“The lawyer also has a
substantial and important role to perform in raising mitigating factors both to the
prosecutor initially and to the court at sentencing.”).

-25-
examination. A previous report indicated that the defendant “did not suffer from

any psychiatric disorders and his test results at that time appeared normal.” 239

F.3d at 1182. Before the sentencing stage, the defendant directed counsel not to

have his parents and friends testify.

Notwithstanding his client’s wishes, trial counsel disregarded his client’s

instructions, and presented substantial mitigating testimony, including testimony

from his mother and various friends. The defendant testified and detailed his

childhood, schooling, activities, military service, and his love of children. He

described his childhood as “outstanding.” Id. at 1181. He also told the jury that

he “did not like having his friends and family testifying on his behalf and that his

defense attorney had presented what mitigating testimony he had against [the

defendant’s] wishes.” Id. at 1181-82.

Rather than chide counsel for disregarding his client’s directive, we

concluded that counsel’s performance was a logical strategy to portray the

defendant’s childhood as normal and happy, and we found no deficiency in his

performance. The defendant was allowed to testify and to articulate his

discomfort with the testimony presented by his counsel. Finally, through

counsel’s pretrial preparation, counsel discovered nothing that would suggest an

abusive childhood.

-26-
 Here, Mr. Freeman’s “strategy” can hardly be similarly characterized: he

severely curtailed Mr. Bryan’s testimony at the sentencing stage, allowing him no

opportunity to humanize himself before the jury. Unlike counsel in Romano, Mr.

Freeman was exposed to virtual volumes of evidence of psychiatric disorders,

including the scientific “picture” of the SPECT scan. Counsel in Romano clearly

discussed the sentencing phase with his client and explained his strategy, and

opted to allow his client to testify as to his discomfort with having his mother

and friends testify. In stark contrast to counsel in Romano, Mr. Freeman made no

such effort to inform his client about the purposes of the sentencing phases, and

did not discuss any mitigation strategy with him. See Evid. Hr’g Tr. at 36-37.

And finally, given Mr. Bryan’s uninformed and likely delusional perspective, Mr.

Freeman still opted to heed Mr. Bryan’s wishes.

(2) Wallace v. Ward

The majority’s reliance on Wallace v. Ward, 191 F.3d 1235, is similarly

unavailing. In Wallace, after the defendant pleaded guilty, he instructed his

counsel not to present any evidence at the punishment trial and at the subsequent

sentencing. Unlike here, the record indicated that Mr. Wallace “knew what

mitigating evidence was, as his attorney discussed it with him. He likewise knew

he had the right to present mitigating evidence.” 191 F.3d at 1246 (quoting

Wallace v. State, 935 P.2d 366, 376 (Okla. Crim. App. 1997)). Mr. Wallace was

-27-
the only defense witness at the sentencing phase, and he testified that he had

conferred with counsel and knew that counsel could have vigorously presented a

defense, and that he had instructed counsel not to cross-examine various

witnesses or to object to the death penalty, and that he had no desire to present

mitigating evidence. Id. at 1249. “Defense counsel’s closing statement

confirmed that he represented [Mr. Wallace’s] professed interests.” Id. We

recognized that Wallace embodied “unique” facts, and determined that counsel’s

performance was not deficient and that no prejudice was shown. Id. at 1248.

An attorney must weigh in his strategic calculus his client’s wishes. See

Romano, 239 F.3d at 1181. An attorney may disregard those instructions,

however, when the record presents evidence that is contrary to the defendant’s

wishes. Trial counsel can explain any inconsistencies by having her client testify

as to her decision. We cannot know with certainty why Mr. Bryan’s parents

feared exposing the mental illness of their son, nor can we explain Mr. Bryan’s

unwillingness to concede that he was ever mentally ill. There are clues though.

Mr. Bryan’s sister indicated that, to her parents, admission of mental illness

equated with “someone . . .who had no sense at all.” Evid. Hr’g Tr. at 43.

I concede that, absent a determination of incompetence, the autonomy of

the client generally prevails at the guilt phase. But at sentencing, the stigma that

might be associated by some with an insanity verdict, which may be worse than

-28-
the stigma of conviction, is no longer a potential outcome. See Christopher

Slobogin and Amy Mashburn, The Criminal Defense Lawyer’s Fiduciary Duty to

Clients with Mental Disability, 68 Fordham L. Rev. 1581, 1633 (2000) (noting

that a conviction may be preferable to an insanity verdict because “the stigma

associated with an insanity verdict (which incorporates a finding that a crime was

committed) may be worse than the stigma of conviction,” and may itself lead to

institutional confinement).

The Supreme Court has held that the deficiencies borne by the mentally

retarded “do not warrant an exemption from criminal sanctions, but diminish

their personal culpability.” Atkins, 536 U.S. at 320. The Court’s logic applies no

less to those in Mr. Bryan’s shoes who suffer from severe mental deficiencies.

See Hardwick, 320 F.3d at 1164 (“One can be competent to stand trial and yet

suffer from mental health problems that the sentencing jury and judge should

have had an opportunity to consider.”) (internal quotation marks omitted).

“Society has interests both in reliable outcomes and a dignified process,

interests that are not waiveable by a defendant. More specifically, society has an

interest, independent of the defendant’s, in ensuring that the criminal justice

system accurately assesses the culpability of those it prosecutes and that its

procedures are not ignored or abused.” Slobogin and Mashburn, supra, 68

Fordham L. Rev. at 1633. Mr. Freeman’s failure to recognize that no jury could

-29-
accurately assess the culpability of Mr. Bryan without presentation of his mental

health history was grossly deficient.

c. Counsel’s Preparation for the Mitigation Phase

The majority also concludes that Mr. Bryan gave counsel an informed

decision in part because he was “apprised of the benefits of using mental health

evidence in mitigation at the penalty phase.” Maj. Op. at 26. The majority

reasons that because Mr. Bryan’s previous counsel, whose strategy was to present

mental health evidence during both the guilt and penalty phases in his reliance

upon an insanity defense, had explained that strategy to his client, that Mr. Bryan

would somehow intuit the import of presenting mental health testimony as

applied to Mr. Freeman’s radically different approach (actual innocence) at both

the guilt and sentencing phases. However, Mr. Freeman, whose strategy clearly

diverged from that of his predecessors because he planned to assert actual

innocence during the guilt phase, did not discuss the strategic implications of

presenting mental health evidence during the sentencing phase. Cf. Romano, 239

F.3d at 1181.

As to preparation for the sentencing phase, Mr. Bryan testified to the

following:

Q: Could you tell the Court what preparation was made for the
penalty phase.

-30-
 Mr. Bryan: “That’s hard to answer, because there just wasn’t
any.”

Q: Were you told that you would be a witness?
Mr. Bryan: I was told that I would be called to the witness chair.

Q: And when were you told that? When did Mr. Freeman tell you
that?
Mr. Bryan: Just a few minutes before I was called.

Q: Did he have any time to prepare you for the questions he was going
to ask?
Mr. Bryan: No, sir.

Q: Did you ever discuss with Mr. Freeman the possibility of
using mental health evidence in the second stage of the trial?
Mr. Bryan: It was never mentioned.

Evid. Hr’g Tr. at 36-37. Based on this testimony, which neither Mr. Freeman nor

the State controverts, we cannot presume that Mr. Bryan had been counseled and

advised on the new guilt phase strategy and its implications for the second phase

strategy, when the testimony from the hearing indicates otherwise. 6

6
The ABA’s guidelines for capital defense work are “standards to which
[the Supreme Court has] long referred to as “‘guides to determining what is
reasonable.’” Wiggins, 2003 WL 21467222, at *9 (quoting Stricklin, 466 U.S. at
688). For example, “[p]rior to the sentencing phase . . . counsel should discuss
with the client the specific sentencing phase procedures . . . and advise the client
of steps being taken in preparation for sentencing.” ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases §
10.11(C) (2003). Similarly,

[c]ounsel at every stage of the case should discuss with the client the
content and purpose of the information concerning penalty that they
intend to present to the sentencing or reviewing body . . . , means by
(continued...)

-31-
 In Battenfield, we determined counsel’s performance to be deficient where

counsel “never explained the general meaning of mitigation evidence to [his

client] or what specific mitigation evidence was available.” 236 F.3d at 1229.

Additionally, counsel in Battenfield “never advised Battenfield that mitigation

evidence might include evidence about Battenfield’s substance abuse problems.”

Id. Mr. Freeman cannot now hide behind Mr. Bryan’s uncounseled and

uninformed wishes as to the sentencing phase. See also Thompson v.

Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986) (“The reason lawyers may not

blindly follow [a client’s] commands is that although the decision whether to use

such evidence in court is for the client . . . the lawyer first must evaluate potential

avenues and advise the client of those offering possible merit.”) (internal

quotation marks and citation omitted); see also Martin v. Maggio, 711 F.2d 1273,

1280 (5th Cir. 1983) (noting that defendant’s “instruction that his lawyers obtain

an acquittal or the death penalty did not justify his lawyers’ failure to investigate

the intoxication defense” and that such “[u]ncounseled jailhouse bravado,

6
(...continued)
which the mitigation presentation might be strengthened, and the
strategy for meeting the prosecution’s case in aggravation.

Id. § 10.11(D). Furthermore, “[c]ounsel should consider, and discuss with the
client, the possible consequences of having the client testify or make a statement
to the sentencing . . . body.” Id. § 10.11(E). Despite these “well-defined norms,”
Wiggins, 2003 WL 21467222, at *9, however, it appears that counsel disregarded
such responsibilities.

-32-
without more, should not deprive a defendant of his right to counsel’s

better-informed advice”); Gaines v. Hopper, 575 F.2d 1147, 1150 (5th Cir. 1978)

(“[M]eaningful discussion with one’s client” is one of the “cornerstones of

effective assistance of counsel.”).

d. Counsel’s “Strategy” at the Sentencing Phase

The majority defends Mr. Freeman’s second stage performance by

declaring that to present any mental health testimony would be inconsistent with

his first stage defense “and would do more harm than good.” Maj. Op. at 29.

The majority also points to expert testimony that indicates that to have

inconsistent first and second stage strategies is unworkable, or, more specifically,

the “kiss of death,” particularly when there’s a “denial defense in the first stage”

followed by “remorse and things like that” in the second stage. See Maj. Op. at

32 n.22 (quoting testimony of Tim Wilson, Evid. Hr’g Tr. at 60); see also ABA

Guidelines for the Appointment and Performance of Defense Counsel in Death

Penalty Cases § 10.11 comment. at 107 (2003) (“[W]hether or not the guilt phase

defense will be that the defendant did not commit the crime, counsel must be

prepared from the outset to make the transition to the penalty phase.”).

Neither Mr. Wilson, nor the other experts were suggesting that a mitigation

strategy employing this compelling mental evidence should not have been used.

-33-
Mr. Wilson merely pointed out that the better defense would have been to utilize

the mental health evidence in the guilt phase. In any event, the testimony

highlighted by the majority merely indicates that he discouraged arguing actual

innocence in the first stage, followed by remorse in the second stage. It is simply

not correct to suggest that, given the guilt strategy that Mr. Freeman used, that

Mr. Wilson would not have utilized this “excellent organic brain damage”

evidence in the sentencing phase. Evid. Hr’g at 62. Indeed, former counsel Mr.

Hess, the defense expert who was asked how he would have “done th[e] second

stage differently,” answered that he “would have put [the] mental health experts

on.” Evid. Hr’g Tr. at 23.

In addition, the majority concludes that Mr. Freeman’s choice not to

present the mental health history at the sentencing stage was reasonable, given

his fear of the evidence acting as a two-edged sword. Hampered by these

constraints, the majority believes that Mr. Freeman opted “mercy” approach,

while the State continues to characterize his “strategy” as one of “reasonable

doubt.”

(i) Testimony elicited at the sentencing stage

The fairest way to evaluate Mr. Freeman’s strategy at sentencing is to

review the scant evidence Mr. Freeman did present at the mitigation phase, in

support of a purported “residual doubt” strategy. See Rec. doc. 56, Respondent’s

-34-
Proposed Findings of Fact and Conclusions of Law ¶ 20 (filed Nov. 10, 1999)

(“Freeman relied upon the strategy of ‘residual doubt.’”). During the sentencing

stage, Mr. Freeman presented brief testimony from Mr. Bryan, his sister, and his

mother. First, Mr. Bryan testified to offer an explanation for an alleged assault

that took place while he was incarcerated. Next, Mr. Bryan’s mother and sister

testified that Mr. Bryan had high moral standards, believed in God, was non-

violent, and was a caring family member. Mr. Bryan’s sister testified that she

believed Mr. Bryan might reach a point that “he could be salvaged” and that she

“would ask the jury not to execute [her] brother.” Trial tr. vol. VII, at 1714. His

mother, when asked if she would ask the jury not to kill Mr. Bryan, responded

“Why sure.” Id. at 1728.

Next, Mr. Freeman presented his closing argument, and rather than

presenting a vivid portrait of Mr. Bryan’s life, he first noted that Mr. Bryan

posed no continuing threat to society, because he had served his time for his past

conviction. Despite his later comment that he could not present the mental health

history evidence because of “incompatib[ility],” with his earlier assertions of Mr.

Bryan’s innocence, Evid. Hr’g Tr. at 89, he next noted that “[w]e have to

remember that the guilt of Leroy is not an issue. You’ve determined that, we

know that, everybody in this courtroom, everybody in the world. The issue is

what should be the appropriate punishment.” Trial tr. vol. VII, at 1750-51. Mr.

-35-
Freeman reminded the jury that Mr. Bryan could “be salvaged despite his vi[le]

act.” Id. at 1752. And despite the fact that “Leroy should not have killed,” id. at

1753, he asked the jury to impose a sentence of either life or life without parole.

This is the extent of the evidence that Mr. Freeman believed he could present in

support of any mitigating factors and to counter the government’s evidence of

aggravators. See id. at 1695-1734, 1748-59.

(ii) Presentation of diminished capacity after a guilty verdict

Although Mr. Wilson testified at the evidentiary hearing that his approach

to the trial and sentencing stage would have been markedly different from Mr.

Freeman’s, in that he would have utilized strategies that “dovetail[ed],” he does

not suggest a strategy that would have “dovetailed” in any way with Mr.

Freeman’s guilt phase approach. See Evid. Hr’g Tr. at 59-64. Mr. Wilson was

suggesting that the best approach would have been to introduce the mental health

testimony in the first stage. But he should not be read to answer a question that

he was not asked, as the majority does. See Maj. Op. at 31-32, and n.22.

In Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995), the Eighth Circuit

granted habeas relief where counsel failed to investigate fully and present

mitigating evidence of the defendant’s mental condition. Shortly after the

offense, a state psychiatrist conducted a twenty minute interview of Mr. Antwine

-36-
and “concluded that [he] did not suffer from any mental disease or defect, and

that his actions at the time of the offense were consistent with PCP intoxication.”

Id. at 1365. Several years later, Mr. Antwine was diagnosed with bipolar

disorder. The Missouri state court concluded that the evidence of mental defect

was insufficient to establish that the defendant suffered from bipolar disorder at

the time of the offense. In addition, the court found that the diagnosis was not

credible.

Counsel for Mr. Antwine defended his decision not to conduct followup

mental examination because it might only show diminished capacity in a bid for a

lesser offense, like second degree murder. Mr. Antwine instructed his counsel to

seek “acquittal rather than a reduced sentence, [and] counsel decided not to

investigate or pursue a diminished capacity defense.” Id. at 1366. Mr. Antwine’s

counsel “gave no reason, though, for not requesting a second examination in

preparation for the penalty phase of the capital murder trial.” Id.

At the sentencing phase, counsel relied only on a plea for mercy and

presented only the testimony of the defendant’s brother. Counsel later testified

“that he had considered putting on elaborate evidence of mitigation, but had

rejected the idea in favor of an emotional beg-for-mercy approach. He was

concerned that the guilty verdict indicated that the jury had decided to give [his

client] the death penalty, and felt that the best course would be an appeal to their

-37-
compassion.” Id. at 1367. Mr. Antwine’s counsel also claimed “that he would

have lost credibility if he had presented evidence of a mental impairment at the

penalty phase, because such evidence would be inconsistent with the self-defense

claim presented in the guilt phase.” Id.

Mr. Antwine’s counsel’s performance managed to meet the Strickland

standard at the guilt phase, because Mr. Antwine could not establish prejudice:

“If [Antwine’s] counsel had . . . presented evidence that [his client] was in the

throes of a manic episode during the offense, the jury might have found that he

did not have the specific intent – cool deliberation – required for capital murder.”

Id. at 1368. But the court could not say “that it was unreasonable of counsel not

to make a diminished capacity argument in the guilt phase.” Id.

As to the sentencing phase, however, the court held that “there [wa]s a

reasonable chance that Antwine would not have been sentenced to death if

counsel had effectively presented evidence of Antwine’s mental impairment at

the penalty phase.” Id. “Since the jury found only two aggravating

circumstances, the balance of aggravating and mitigating circumstances in the

penalty phase of the trial would have been altered enough to create a reasonable

probability that the jury would not sentence Antwine to death.” Id.

The Antwine court dealt with issues that parallel those before us. First,

Mr. Antwine’s counsel stated that his client’s goal was acquittal, and thus

-38-
counsel opted not to present evidence of mental impairment at either the guilt or

sentencing phase. Here, Mr. Bryan did not want his lawyer to present evidence

of mental illness. Additionally, Mr. Bryan rejected the idea of pleading guilty.

Second, Mr. Antwine’s counsel believed he would have lost credibility if

he had presented evidence of mental impairment because such evidence would be

inconsistent with the self-defense claim. Here, Mr. Freeman testified that “[a]ny

other position” apart from the one he took “would have been incompatible” with

his first stage strategy that Mr. Bryan did not commit the crime. Evid. Hr’g Tr. at

89.

Here, in fact, the rationale for a finding Mr. Freeman’s performance to

constitute ineffective assistance of counsel under Strickland is much stronger

than Antwine: In Antwine, counsel was deemed ineffective for not ordering

subsequent mental evaluations that might have determined the defendant suffered

from an episode during the time of the offense. We, however, do not need to

speculate as to what the evaluations of Mr. Bryan might have said – we know Mr.

Bryan has suffered from serious mental defects for several years, and that he

continues to suffer from them. Thus, I would hold that Mr. Freeman’s sentencing

phase “strategy” was no strategy at all – and that his failure to present evidence

of Mr. Bryan’s mental health history was deficient under Strickland.

(iii) Residual Doubt Strategy

-39-
 Perhaps even more striking is the State’s defense of the reasonableness of

Mr. Freeman’s purported residual doubt strategy at sentencing. There is no

question that “[t]he guilt phase may . . . provide the opportunity to sow the seeds

of ‘residual’ doubt concerning the defendant’s guilt, enhancing the chances of a

life sentence.” James M. Doyle, The Lawyer’s Act: Representation in Capital

Cases, 8 Yale J. L. & Human. 417, 423 n.25 (1996). Counsel may further

attempt to stir up any lingering doubt concerning the guilt of the defendant

during the sentencing phase, hoping to cause the jury to decide against the

imposition of the death penalty. Residual, or “lingering,” doubt has been defined

as “(1) actual, reasonable doubt about guilt of any crime; (2) actual, reasonable

doubt that defendant was guilty of a capital offense, as opposed to other offenses;

(3) a small degree of doubt about (1) or (2), sufficient to cause the juror not to

want to foreclose (by execution) the possibility that new evidence might appear

in the future.” Christina S. Pignatelli, Residual Doubt: It’s a Life Saver, 13

Capital Defense Journal 307, 307-08 (2001) (internal quotation marks omitted).

Thus, the utilization of the “residual doubt” strategy can be an effective

form of mitigation. See Stephen P. Garvey, Aggravation and Mitigation in

Capital Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1563 (1998)

(“‘[T]he best thing a capital defendant can do to improve his chances of receiving

a life sentence . . . is to raise doubt about his guilt.’”). However, there is no

-40-
evidence that Mr. Freeman made use of such a strategy or tried to raise any doubt

about his client’s guilt.

A “strategy” is defined as “a careful plan or method,” or “a clever

stratagem.” Merriam Webster’s Collegiate Dictionary 1162 (10th ed. 1997). Mr.

Freeman never used the terms “lingering” or “residual doubt” during the

sentencing hearing. Mr. Freeman did not even use the term “doubt” at the

hearing. Mr. Freeman admitted he was not familiar with the term “residual

doubt” until after the trial. See Evid. Hr’g Tr. at 106. Mr. Freeman never

planned nor asserted a residual doubt defense. He was not consciously aware of

relying on a residual doubt strategy at the sentencing trial, and never asserted the

use of a residual doubt strategy until he was deposed.

There was no testimony or reminder given to the jury during the sentencing

phase regarding Mr. Bryan’s potential innocence. The concept of a residual

doubt strategy makes sense when there is a chance of mistaken identification, or

when the guilt of others is implicated, such as in the case where there is a

codefendant. See Evid. Hr’g Tr. at 65 (Testim. of Tim Wilson); see generally

Margery Malkin Koosed, The Proposed Innocence Protection Act Won’t–Unless

it Also Curbs Mistaken Eyewitness Identifications, 63 Ohio St. L.J. 263, 313

n.44 (2002) (suggesting increased use of lingering doubt theory when suggestive

identification procedure is at issue).

-41-
 A decision to pursue a lingering doubt strategy at the penalty phase, to the

exclusion of other strategies, should be granted wide deference, especially if

mitigating evidence is presented that complements that strategy. However, Mr.

Freeman presented no such evidence suggesting anything that might lessen Mr.

Bryan’s responsibility for the offense or to raise doubt about Mr. Bryan’s guilt. 7

Mr. Freeman relied upon and reiterated little, if any, evidence from the guilt

phase that might have cast doubt upon Mr. Bryan’s guilt. Instead, Mr. Freeman

went to the opposite extreme. Mr. Freeman admitted that Mr. Bryan “should not

have killed” that he should not have committed this “vile act.” Mr. Freeman thus

erased any doubt that might have weighed on the jury’s conscience. If the jurors

had retained any residual doubts, Mr. Freeman extinguished them.

The OCCA determined that it would not second guess Mr. Freeman’s

sentencing phase strategy where, “[a]ccording to the instruction on mitigating

evidence, [Mr.] Bryan still appeared to be claiming actual innocence,” Bryan v.

State, 935 P.2d 338, 363 (Okla. Crim. App. 1996), and effectively shielded Mr.

Freeman’s performance from scrutiny. Similarly, the district court defended Mr.

Freeman’s sentencing phase strategy and declared “Mr. Freeman’s decision was

7
When asked about his sentencing phase preparation, Mr. Freeman
testified that when he asked Mr. Bryan’s family about Mr. Bryan, they stated
“that [Mr. Bryan] had been a beautiful, good son, and had accomplished a great
deal in society by becoming a teacher.” Evid. Hr’g Tr. at 88. Mr. Freeman
elicited no such testimony during the sentencing phase.

-42-
correct or at least professionally reasonable.” Dist. Ct. Order at 65. I don’t

understand how the OCCA and the district court could be so charitable when Mr.

Freeman admitted that Mr. Bryan “killed” and committed a “vile act.”

It is certainly possible that a lawyer can present the elements of a defense

without knowing that there is a specific name for her strategy. Creative minds

can, indeed, devise strategies that others have reached via different paths. I

believe, however, that to credit Mr. Freeman with having relied upon a strategy

of residual doubt, where the evidence strongly suggests that he was unaware such

a strategy even existed–and where his actions completely undermined that

defense– is untenable. Mr. Freeman’s performance cannot be construed so that it

is “considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal

quotation marks and citation omitted). Strickland counsels deference to plausible

legal strategies, not to unilateral disarmament. See Wiggins, 2003 WL 21467222,

at *10 (in holding that the petitioner demonstrated ineffective assistance of

counsel, noting that counsel put on a “half-hearted mitigation case,” and

concluding that “the ‘strategic decision’ the state courts and respondents all

invoke to justify counsel’s limited pursuit of mitigating evidence resembles more

a post-hoc rationalization of counsel’s conduct that an accurate description of

their deliberations prior to sentencing”).

(iv) Characterizing the mental health evidence as a two-edged
sword

-43-
 The OCCA also defended Mr. Freeman’s decision not to present mental

health evidence because “[g]iven the other evidence of violent behavior, the jury

could have thought this type of psychological problem indicated a propensity for

future violence.” 935 P.2d at 343. Again, Battenfield provides a useful analogy.

There, the OCCA determined that, as to the history of Mr. Battenfield’s drug use,

“[t]he psychologist’s conclusion that Battenfield was chemically dependent does

nothing to undermine our confidence in the jury’s determination that he

constitutes a continuing threat to society.” 236 F.3d at 1227 (quoting Battenfield

v. State, 953 P.2d 1123, 1147 (Okla. Crim. App. (1998)). We noted, however,

that evidence of Mr. Battenfield’s drug and alcohol reliance, and his potential

treatment for such reliance, might blunt the force of the continuing threat

aggravator. See id. at 1235.

The same is true here. Had the jury been given more information about

Mr. Bryan’s background, mental health and treatment history, 8 and the facts

surrounding his previous conviction, which would heighten the jury’s sensitivity

8
We also note that the jury heard nothing regarding how voluntary or
involuntary treatment with anti-psychotic drugs might blunt the force of the
continuing threat aggravator. Based on the record before us, we are unable to
discern the necessity of the forced administration of anti-psychotic drugs such as
Navane, except to note that “[t]here are often strong reasons for a court to
determine whether forced administration of drugs can be justified on these
alternative grounds [such as related to the individual’s dangerousness or to the
individual’s own interests].” Sell v. United States, 121 S. Ct. 2174, 2185 (2003).

-44-
to the ingrained nature of his organic disease, there is a reasonable probability

that the jury would not have sentenced Mr. Bryan to death, because the jury had

the option of sentencing Mr. Bryan to life without parole.

The decision not to put forth mental health evidence may sometimes be

characterized as strategic. See Cannon v. Gibson, 259 F.3d 1253, 1277-78 (10th

Cir. 2001) (noting presence of “two-edged sword” where counsel presented

“substantial” mitigating evidence and where mental health evidence would have

“displaced rather than supplemented” the mitigating evidence, such that

petitioner could not establish prejudice); see also Atkins, 536 U.S. at 320-21

(recognizing that evidence of mental retardation may enhance likelihood of

finding of future dangerousness aggravator, and noting that “[m]entally retarded

defendants may be less able to give meaningful assistance to their counsel and

are typically poor witnesses, and their demeanor may create an unwarranted

impression of lack of remorse for their crimes”). However, surely the majority

does not suggest that any time counsel foregoes the presentation of mitigating

evidence that may be viewed to support an aggravator, such as evidence of

mental illness, evidence of alcohol abuse, or evidence of an abusive upbringing,

that he is assured blanket protection from review of his effectiveness. See Maj.

Op. at 31. To do so would be to arm counsel with a two-edged sword.

-45-
 The Supreme Court’s most fundamental direction regarding the

presentation of mitigating evidence at sentencing demands that “precisely

because the punishment should be directly related to the personal culpability of

the defendant,” the jury must be allowed to consider all relevant mitigating

evidence. Penry v. Lynaugh, 492 U.S. 302, 318, 327-28 (1989). In a case such

as this, where the mitigating evidence that was actually presented was scant at

best, where counsel knew his client would make a poor witness because his

delusional state precluded him from being able to beg for mercy or to express

remorse, and where the mental health evidence is well-documented and long-

standing, Mr. Freeman’s performance left the jury no reason even to consider as a

possibility that Mr. Bryan might not be morally culpable enough, as the result of

his involuntarily adduced organic brain disorder, for the death penalty.

(iv) Post hoc “mercy” approach

The majority characterizes Mr. Freeman’s sentencing strategy as a “mercy

approach.” Maj. Op. at 34. Again, I do not think it is appropriate for the court

to supply a “post hoc rationalization” for Mr. Freeman. Wiggins, 2003

21467222, at *10 (rejecting state courts’ characterization of defense counsel’s

“halfhearted mitigation case” approach as a “strategic decision”). Even if his

beleaguered presentation at sentencing can be deemed as seeking mercy, though,

the presentation was unreasonably flawed. “As a practical matter, the defendant

-46-
probably has little or no chance of avoiding the death sentence unless the defense

counsel gives the jury something to counter both the horror of the crime and the

limited information the prosecution has introduced about the defendant.”

Jonathan P. Tomes, Damned if You Do, Damned if You Don’t: The Use of

Mitigation Experts in Death Penalty Litigation, 24 Am. J. Crim. L. 359, 364

(1997). I find it difficult to ascribe to Mr. Freeman the act of seeking mercy in

the same sentence that he denounced Mr. Bryan’s “vile act.” Mr. Freeman failed

to provide any individual portrayal of Mr. Bryan’s life, a portrayal that might

have included testimony about his being a college graduate, a high school

teacher, a man who was married and who began to suffer headaches, which

signaled the onset of his debilitating organic brain damage.

Asking for mercy requires some attempt to invoke compassion, a

sympathetic response of the jurors to explain those acts. See, e.g., Anthony V.

Alfieri, Mitigation, Mercy, and Delay: The Moral Politics of Death Penalty

Abolitionists, 31 Harv. C.R.-C.L. L. Rev. 325, 327 (1996) (“During the penalty

or sentencing phase of capital trials, lawyers present mitigating evidence of client

psycho-social deprivation to the jury in an attempt to explain specific violent acts

of criminal lawbreaking and, thus, invite mercy.”); Stephen P. Garvey, supra, 98

Colum. L. Rev. at 1539 (“On the side of mitigation, jurors tend to focus most on

factors that diminish the defendant’s individual responsibility for his actions.

-47-
They attach significant mitigating potential to facts and circumstances that show

diminished mental capacity, such as mental disturbance at the time of the offense

(emphasis added); id. (“[Jurors] show little mercy to defendants who show no

remorse.”). The majority’s holding essentially insulates counsel’s sentencing

phase performance by supplying counsel with yet another justification for a

nonexistent strategy, not unlike the post hoc attempt to explain away Mr.

Freeman’s guilt-affirming sentencing performance by calling it a “residual doubt”

strategy.

Because Mr. Freeman made no attempt to provide the jury with the

“particularized nature of the crime and the particularized characteristics of the

individual defendant,” Gregg, 428 U.S. at 206, I cannot agree that he applied any

strategy at all at the sentencing phase.

B. Prejudice

As stated in the panel dissent, that Mr. Freeman’s deficient performance

resulted in fundamental prejudice is obvious. See 276 P.2d at 1185 (Henry, J.,

dissenting).

“[T]he death penalty is different in both its severity and its finality.” Neill

v. Gibson, 278 F.3d 1044, 1068 (10th Cir. 1998). “From the point of view of

society, the action of the sovereign in taking the life of one of its citizens . . .

-48-
differs dramatically from any other legitimate state action.” Id. “[A] difference

exists when a defendant’s life is at stake. ‘In death cases, doubts with regard to

the prejudicial effect of trial error should be resolved in favor of the accused.’”

Moore v. Reynolds, 153 F.3d 1086, 1118 (10th Cir. 1998) (Brorby, J., dissenting)

(quoting Andres v. United States, 333 U.S. 740, 752 (1948)). “It is neither

possible nor desirable for a person to whom the state entrusts [such] an important

judgment to decide in a vacuum.” Barclay v. Florida, 463 U.S. 939, 950 (1983).

Psychiatric mitigating evidence “has the potential to totally change the

evidentiary picture.” Middleton v. Dugger, 849 F.2d 491, 495 (11th Cir. 1988);

see also Stephens v. Kemp, 846 F.2d 642, 653 (11th Cir. 1988) (stating that

“prejudice is clear” where attorney failed to present evidence that defendant

spent time in mental hospital). Here, we have testimony from two psychiatrists as

to Mr. Bryan’s delusions and his organic brain disorder, and a SPECT scan to

verify these clinical observations. We have hospitalization records documenting

his disorder. We have testimony from his previous attorneys regarding his

illness. We have Mr. Bryan’s own delusions and fantastic stories and his refusal

to admit he has ever been afflicted mentally. And we have the observation that

his condition was apparently so grave that one expert stated it “place[d] into

serious question his competency to stand trial, as well as his legal culpability in

the crimes for which he is charged.” Evid. Hr’g Tr. at 95.

-49-
 The compelling and extensive evidence of Mr. Bryan’s history of mental

illness creates a reasonable probability that the jury would have concluded that

the mitigating evidence outweighed the continuing threat aggravator and might

also be viewed in a mitigating light as to past violent behavior. See Battenfield,

236 F.3d at 1235 (concluding that had mitigating evidence, which included

defendant’s reliance on drugs and alcohol and mental health evidence, been

presented to jury, there was a reasonable probability that the jury would have not

have given defendant the death penalty); Antwine, 54 F.3d 1368 (holding that

presentation of defendant’s mental impairment would alter the balance of

aggravating and mitigating circumstances in the penalty phase of the trial . . .

enough to create a reasonable probability that the jury would not sentence [Mr.]

Antwine to death”).

This evidence could have materially altered the balance of aggravating and

mitigating factors underlying the jury’s sentencing decision. The failure to

present the evidence deprived the jury of a “vehicle for expressing its ‘reasoned

moral response’” to the substantial evidence of Mr. Bryan’s mental illnesses

when it rendered its sentencing decision. Penry, 492 U.S. at 328. Accordingly,

there is a substantial probability the jury, or that at least one juror, would have

determined that the mitigating circumstances outweighed the aggravating

circumstances. See Wiggins, 2003 WL 21467222, at *17 (holding that prejudice

-50-
had been established where counsel presented only one significant mitigating

factor, noting that, “[h]ad the jury been able to place petitioner’s excruciating life

history on the mitigating side of the scale, there is a reasonable probability that at

least one juror would have struck a different balance”). Mr. Freeman’s

performance “‘so undermined the proper functioning of the adversarial process

that the [penalty phase of] of the trial cannot be relied on as having produced a

just result.’” Battenfield, 236 F.3d at 1235 (quoting Strickland, 466 U.S. at 686).

III. CONCLUSION

The majority’s conclusion revolves around the Supreme Court’s statement

that “‘[t]he reasonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own statement or actions. Counsel’s

action are usually based, quite properly, on informed strategic choices made by

the defendant and on information supplied by the defendant.’” Maj. Op. at 23-24

(quoting Strickland, 466 U.S. at 691) (emphasis added). I simply cannot agree

that Mr. Bryan made an informed strategic choice when his counsel decided to

forego presentation of any mental defect evidence at the sentencing stage. Mr.

Freeman did not ever know what use he could have made of the mental health

testimony. He claims to have felt constrained by the wishes of his client’s family

-51-
and by his client to submerge any indication of mental distress in the Bryan

family, and rather than discuss the purpose of the sentencing phases and of

mitigating evidence generally with his client, he limited his discussion to merely

informing his client that he would be testifying minutes later. And finally, in an

inconceivable decision that completely destroyed any consistency between the

guilt and sentencing phases, Mr. Freeman assured the jury of his client’s guilt

and added his own condemnation of Mr. Bryan’s act.

In its recent and historic decision that declared the execution of mentally

retarded defendants unconstitutional, the Supreme Court observed that

[m]entally retarded persons frequently know the difference between
right and wrong and are competent to stand trial. Because of their
impairments, however, by definition they have diminished capacities to
understand and process information, to communicate, to abstract from
mistakes and learn from experience, to engage in logical reasoning, to
control impulses, and to understand the reactions of others. There is no
evidence that they are more likely to engage in criminal conduct than
others, but there is abundant evidence that they often act on impulse
rather than pursuant to a premeditated plan, and that in group settings
they are followers rather than leaders. Their deficiencies do not warrant
an exemption from criminal sanctions, but they do diminish their
personal culpability.

Atkins, 536 U.S. at 318 (footnotes omitted). The OCCA has acknowledged the

direction of the Supreme Court’s capital punishment jurisprudence and concluded

that “while mentally retarded individuals are capable of committing crimes in

Oklahoma, in light of Atkins, those who fit within its holding are no longer

eligible for the death penalty.” Murphy, 54 P.3d at 567. The OCCA has further

-52-
acknowledged the Supreme Court’s holding that “‘[c]onstruing and applying the

Eighth Amendment in the light of our evolving standards of decency, we

therefore conclude that such punishment is excessive and that the Constitution

places a substantive restriction on the State’s power to take the life of a mentally

retarded offender.’” Id. at n.15 (quoting Atkins, 536 U.S. at 321).

I believe that others too can be “competent to stand trial and yet suffer

from mental health problems that the sentencing jury and judge should have had

an opportunity to consider.” Blanco, 943 F.2d at 1503. Or, as even Mr. Freeman

should have understood, whether Mr. Bryan was “insane” or not, he was clearly,

as both Drs. Smith and Murphy colorfully concluded, “crazy.” I hope that the

State of Oklahoma will reflect on these matters and consider settling this case by

either agreeing to a new sentencing phase where a fairly composed jury can

evaluate this compelling evidence or by renewing its offer of life imprisonment

with no possibility of parole. The prosecution’s victory on appeal does not

eliminate its obligation on an ongoing basis to conscientiously review whether to

exercise prosecutorial discretion. 9

9
See, e.g., Henry Weinstein, California Appeal Lost, Yet Freedom Won:
A dissenting opinion was so persuasive that prosecutors dropped the case that
convicted a man of immigrant smuggling, L.A. Times, Metro Section (Apr. 23,
2003) (discussing United States v. Ramirez-Lopez, 315 F.3d 1143, 1160-76 (9th
Cir. 2003) (Kozinski, J., dissenting), opinion withdrawn and appeal dismissed,
327 F.3d 829 (2003)).

-53-
 I do not quarrel with Mr. Bryan’s guilt; his crime and his irreversible brain

damage justify lifelong incarceration and treatment. But our Constitution does

not permit us to sentence this man to death without at least allowing a jury to

consider evidence of his diseased mental state.

I would therefore reverse the judgment of the district court and remand

with instructions that the district court grant the writ as to Mr. Bryan’s death

sentence, subject to the state district court conducting a new sentencing trial.

-54-