State v. Borchardt

*639BELL, Chief Judge,

dissenting.

I.

The majority concludes that Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003) stands for the singular proposition that the inquiry into the deficient performance of counsel prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) means simply a “context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’ ” 396 Md. 586, 603, 914 A.2d 1126,1135. It is through this lens that the majority views the defense strategy employed by Borchardt’s trial counsel and concludes that it did not constitute ineffective assistance of counsel.

I believe it to be clear from my discussion in Evans v. State, 396 Md. 256, 389-90, 914 A.2d 25, 104 (2006) (Bell, C.J., dissenting), that Wiggins and, as well, Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), stand for more than just the consideration of an attorney’s challenged conduct from that attorney’s perspective and under the circumstances existing at the time. On the contrary, I believe, and stated as much in Evans, that these cases do not countenance, much less endorse, “presenting a mitigation case without an adequate and full investigation, or without considering how what is presented can be used against the defendant and whether it may have the opposite effect, very well may aggravate, rather than mitigate, the defendant’s case,” Evans, 396 Md. at 389, 914 A.2d at 104 (Bell, C.J., dissenting), irrespective of whose perspective is invoked.

In Wiggins, the Supreme Court held that trial counsel’s failure to investigate the defendant’s life history or family background and present it as part of the defendant’s mitigation case constituted ineffective assistance of counsel. In particular, it concluded that trial counsel’s decision not to expand their investigation beyond the PSI and DSS records, records of which they were already aware, “fell short of the professional standards that prevailed in Maryland.... ” 539 U.S. at 524-525, 123 S.Ct. at 2536-2537, 156 L.Ed.2d at 486-*640487. In addition, this Court was reminded that the reasonableness of an attorney’s investigation cannot be determined by assessing, alone, what the attorney knows; a reviewing court needs also to consider and determine, the Court explained, whether the known information would lead a reasonable attorney to investigate further. In short, the Court was quite clear that, “Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy.” Id. at 527, 123 S.Ct. at 2538, 156 L.Ed.2d at 488. This Court was criticized for having objectively unreasonably applied the Strickland precepts.

Rompilla is to like effect. It makes the point that, in preparation of a mitigation case, simply interviewing the defendant and his family is an insufficient investigation, 545 U.S. at 381-82, 125 S.Ct. at 2462-2463, 162 L.Ed.2d at 372, that “even when a capital defendant’s family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial.” Id. at 377, 125 S.Ct. at 2460, 162 L.Ed.2d at 369. The Supreme Court held, in that case, that trial counsel’s failure to examine a court file on Rompilla’s prior rape and assault conviction, a crime similar to the one with which he was charged, constituted ineffective assistance of counsel. 545 U.S. at 385-386, 125 S.Ct. at 2465-2466, 162 L.Ed.2d at 375.

In sum, when these cases are considered together, when their combined holdings are given effect, they reflect that a reviewing court must not only ask whether the attorney’s actions, viewed from his perspective, were reasonable under the circumstances, but also must consider whether a reasonable lawyer, under similar circumstances, would have done more.

A.

In preparing for the presentation of the mitigation case he planned to, and ultimately did, offer at Borehardt’s sentencing *641proceeding, defense counsel hired a mitigation specialist. Despite there being funds available to do so, however, after receiving from the specialist a letter containing two paragraphs of “substantive mitigating information,” he did not ask her to prepare a “comprehensive psychological history in report form.” Nor was the mitigation specialist called as a witness at the sentencing proceeding or her letter containing her summary of the mitigation factors she found moved into evidence. In addition, although they were damaging to the mitigation case they presented, trial counsel did not question, or challenge in any way, the validity or accuracy of the State’s exhibits pertaining to, and highlighting, Borchardt’s prior bad acts, namely, prior convictions, threats that he made, and other admitted murders.

What her “comprehensive psychological history in report form” would have looked like and contained was revealed at the post-conviction hearing. It was a twenty-six (26) page report, “based on essentially the same information available to her at the time of sentencing”—information that the sentencing jury never had the opportunity to view—, which was admitted into evidence in those proceedings. In the report, the mitigation specialist reached professional opinions regarding Borchardt’s past experiences with sexual, physical, and emotional abuse, early adversities, his low intelligence level, the lack of protective support systems, his substance abuse problems, and his struggle with chronic pain. From these opinions, she concluded that:

“1. Mr. Borchardt’s early formative experiences of violence, physical and sexual abuse, and emotional denigration thwarted his emotional development, limiting the internal resources available to him to later thrive and deal with his life constructively.
“2. These adversities undermined Mr. Borchardt’s self-worth and ability to get along with others and contributed to severe impairment in all major aspects of his life functioning.
*642“3. Mr. Borchardt suffered from below average intellectual functioning, further compromising his ability to cope •with his circumstances.
“4. Mr. Borchardt had no alternative protective support systems, inside or outside the home, to help buffer the violence and chaos in his life.
“5. Mr. Borchardt was at a significant risk, both biologically and socially, for developing substance abuse problems, and from an early age, came to adopt chemical dependence as a way to block out his earlier traumas and to cope with his day-to-day life.
“6. In addition, as an adult, Mr. Borchardt struggled with significant chronic pain, which served to exacerbate his earlier problems.”

The report also covered areas not addressed by other witnesses at sentencing; it detailed various specific examples of sexual, physical, and emotional abuse that Borchardt witnessed and experienced as a child and opined as to their effect on Borchardt’s development. For example, she opined that early experiences of sexual victimization “served to undermine [Borchardt’s] ability to form trusting relationships with others—most especially fostering a foundation of mistrust of authority figures.”

The mitigation specialist also testified at the post conviction proceedings; indeed, hers was the bulk of the post conviction case. Her testimony at the post-conviction hearing revealed that, had she been called at the sentencing hearing, she would have put Bill Borchardt, Borchardt’s brother, and his testimony in context. She could have, and would have, provided an explanation for the differences in the brothers’ development.

The majority rationalizes trial counsel’s decisions regarding the mitigation specialist and the mitigation case it produced. The majority draws a distinction between the knowledge base of counsel in the case sub judice and counsel in Wiggins, maintaining that counsel in this case, unlike the Wiggins counsel, knew of “several sources of mitigating evidence,” and “had knowledge of [Borchardt’s] family life, and the frequent *643obstacles [he] encountered in his life.” It also is persuaded that counsel’s “strategy,” which was “intended to prevent any social history witness from facing cross-examination damaging to Borchardt’s mitigation specialist,” was an “exercise of reasonable professional judgment.” 396 Md. at 614, 914 A.2d at 1142. The majority concludes:

“When counsel decided not to call Taylor as a witness at sentencing, on basis of the summary of her findings [trial counsel] had reviewed prior to trial, they knew Taylor was prepared to opine that Borchardt’s life and lack of intellectual capacity inhibited his development, and that Borchardt’s abuse and heroin dependency contributed to the Ohler murders”. If trial counsel had called Taylor at sentencing, the State would have had the opportunity to cross-examine her on foundation of her opinions, the sources of her research, and other factors possibly contributing to Borchardt’s ‘life-functioning’ and his murder of the Ohlers. Considering trial counsel’s concerns regarding cross-examination of the mitigation specialist in light of the mitigation case they did put on at trial, trial counsel made a strategic choice not to call the mitigation specialist at sentencing. Defense counsel’s strategy and concerns were reasonable. Even though some of the harmful evidence came before the jury from other sources, it was not unreasonable or deficient performance for counsel to strategically try to mitigate this damage by not reinforcing it through live witnesses.”

396 Md. at 616-17, 914 A.2d at 1143-44.

The post conviction court found that many of the topics on which Borchardt’s trial counsel did not want the mitigation specialist to be cross-examined by the State were already ripe for attack, evidence of some of these topics having been admitted into evidence through other, prior witnesses. The court further found that trial counsel did not investigate fully the available mitigating evidence that the mitigation specialist had and/or would have amassed. Indeed, even trial counsel admitted, after reviewing the finished report, that it was “impressive,” and “he would have ‘certainly considered]’ putting it into evidence if he had the report at sentencing.”

*644It is not at all clear on what basis the majority has chosen to disregard, or, at the very least, not to defer to the factual findings made by the post conviction court, that trial counsel failed fully to investigate the mitigation case and evidence. The law in this State is clear. See, e.g., In re Tariq A-R-Y., 347 Md. 484, 488, 701 A.2d 691, 693 (1997) (holding that in considering evidence presented at a suppression hearing, the Court of Appeals extends great deference to the fact-finding of the suppression hearing court with respect to credibility of witnesses and first-level facts, and when the evidence is conflicting, accepts facts as found by hearing court unless those findings are clearly erroneous). Indeed, in Wiggins, the Supreme Court of the United States deferred to the factual findings of the habeas court. 539 U.S. at 527, 123 S.Ct. at 2538, 156 L.Ed.2d at 488(finding this Court’s application of Strickland objectively unreasonable).

Wiggins and Rompilla are clear, as well, an attorney performs deficiently when he or she undertakes representation and, during the course of that representation, without fully, or at least adequately, Rompilla, 545 U.S. at 389, 125 S.Ct. at 2467, 162 L.Ed.2d at 376-377, investigating the matter and without fully, or at least adequately, Wiggins, 539 U.S. at 534, 123 S.Ct. at 2541,156 L.Ed.2d at 492, considering the effect or consequence of the decision, decides to, and does, present a particular defense. That the attorney has some information about the defense and has knowledge of some of the evidence bearing on it, while relevant, is by no means dispositive. As the Supreme Court made clear in Strickland v. Washington, 466 U.S. 668, 690-691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984), “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Though stated differently, the Court made the same point in Wiggins, “Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy.” 539 U.S. at 527, 123 S.Ct. at 2538,156 L.Ed.2d at 488. These observations confirm *645and underscore what has become a truism, “a little knowledge is a dangerous thing.”1

If the omissions in Wiggins and Rompilla were deficient performance by the attorneys there involved, requiring the reversal of the sentences and a new sentencing proceeding, the omission in this case can be no less and requires the same result. Armed only with two paragraphs reporting the mitigation specialist’s preliminary conclusions with regard to mitigating factors available, and favorable, to Borchardt, and even though he intended to make, and did, in fact, present, a mitigation case, counsel made the decision not to call the mitigation specialist as a witness at sentencing. As a result, because that decision rendered it no longer necessary to do so, no further investigation was required to be made by the mitigation specialist and none was conducted.

To be sure, counsel made the decision not to call the mitigation specialist while aware of the mitigation specialist’s summary of her findings, but its basis was counsel’s desire to avoid the cross-examination of the specialist by the State. In particular, counsel did not want the specialist cross-examined as to the foundation for her opinion, the sources of her research and “other factors” relevant to Borchardt’s “life-functioning,” and, thus, “responsibility” for the murders, of which he had been convicted.

Cross-examination is a critical and well settled part of the American judicial system. It has been described as a valuable tool in the search for truth. See State v. Cox, 298 Md. 173, 178, 468 A.2d 319, 321 (1983) (noting that “the trial of any case is a search for the truth. The strength of each side of an issue rests upon the believability of the evidence offered as proof. This evidence unfolds, in large measure, as testimony of the witnesses is produced at trial. The tool available to each side *646to test the believability of the testimony is cross-examination”). It is a tool that is available to all litigants, not just to one side to the exclusion of the other, although, to be sure, some practitioners are better cross-examiners than others. Thus, every witness called to testify at trial, be it a civil or a criminal trial, is subject to cross-examination. Nevertheless, the utility of the cross-examination is in the search for truth, not simply as a tool. Because it is a tool available for use by all and it applies to all witness, something more than the desire to avoid cross-examination, however earnest and no matter how sincere, must be shown to render the decision to forgo favorable evidence to achieve it, a “reasonable” choice.

With respect, without a good deal more than this record reveals, I fail to see how the decision in this case was any more “strategic” or reasonable than the decision in Wiggins. There is nothing in this record to suggest that the mitigation specialist would not have been a good witness, able to hold up under cross-examination. And, of course, her report had yet to be completed and the completed report considered in light of the overall defense. In the absence of some objectively observable or perceived weakness in the witness, her presentation as a witness, for example, or in the case the witness prepared, the decision not to call the mitigation specialist, made in advance of the completion of her report, simply is not a reasonable “strategic choice.” Because the mitigation specialist never completed her report before the sentencing proceeding, indeed, was not allowed to do so, by “strategic” choice, counsel could not have known what the report precisely would conclude and, therefore, the quality and meritoriousness of those conclusions. Nor did counsel have an opportunity to test the conclusions in conferences with the specialist and in comparison to other data. Without the benefit of such information and consultation, counsel had no basis on which to conclude that, because her conclusions were not sufficiently supported by the research and the report, cross-examination of the mitigation specialist would be detrimental to Borchardt’s case or that she would not have been able to withstand it. It is of interest that, having reviewed the completed report, counsel conceded its impressiveness and that he seri*647ously would have considered using it at sentencing, had it existed.

Counsel’s decision was hasty, to say the least. It also was deficient performance.

B.

Wiggins and Rompilla also guide the resolution of the issues Borchardt raises with regard to his trial counsel’s decision not to call Dr. Lawrence Donner as an expert witness at the sentencing proceeding and to limit the testimony of another expert witness, Dr. Thomas Hyde, whom he did call. In each case, the decision constituted deficient performance, it having been made without an adequate foundation or after a reasonable investigation and without regard to the consequences or effect on the defendant.

Dr. Donner, a neuropsychologist, was retained by the defense, as an expert witness. He was expected to opine that Borchardt suffered from a substantial mental impairment and that he would not be a future danger and to testify to that effect at the sentencing proceeding. He was not called as a witness and, when it became clear that Dr. Donner was not available to testify at the time set for the sentencing proceeding,2 trial counsel did not secure a substitute expert to testify in his stead. The decision not to call Dr. Donner, as was, presumably, the decision not to seek a replacement, was driven by trial counsel’s desire, and attempt, “to avoid their client’s examination by the State’s expert whose testimony had proven harmful in a prior case in which [trial counsel] represented another capital defendant.” 396 Md. at 623, 914 A.2d *648at 1148. It was also made -without discussing with Dr. Donner the concerns counsel had with regard to the State’s expert and whether they could, or would, be met or addressed by his testimony. Under the circumstances, Borchardt argues that the decision was made without an adequate investigation and, therefore, he received ineffective assistance of counsel.

The majority rejects the argument, reasoning:

“We hold that counsel were not ineffective in failing to call Dr. Donner as a witness, failing to present a videotape of his testimony, or failing to secure another neuropsychologist to testify at sentencing ---- the decision whether to call a witness ordinarily is one of trial strategy, and is entitled to deference.... Within the context of building a case for mitigation, and in effort to spare their client’s life, trial counsel sought to avoid their client’s examination by the State’s expert whose testimony had proven harmful in a prior case in which [trial counsel] represented another capital defendant.
“[Trial counsel’s] reasons for not calling Dr. Donner were not so patently unreasonable that no competent attorney would have made the same decision. Defense counsel were aware of Dr. Donner’s findings, and they had undertaken a strategy to prevent Borchardt’s examination by the State’s expert. Dr. Donner was a medical witness, and as such, defense counsel were not required to consult with him as to the effect of his testimony or his ability to counter any State rebuttal, the potential impact of Dr. Raifman as an expert witness for the State, his opinions regarding State’s Exhibits 6, 7, and 8, or whether he could testify to Borchardt’s potential for future dangerousness. Although trial counsel could have chosen to discuss these issues with Dr. Donner, decisions on how to counter the State’s exhibits, respond to a possible State rebuttal witness, and statutory mitigators to raise at trial are decisions quintessentially to be made by trial counsel.”

396 Md. at 623-24, 914 A.2d at 1147-48.

I do not agree. The only basis for the decision not to call Dr. Donner that I can discern was counsel’s desire to avoid *649Borchardt being examined by Dr. Raifman, the State’s expert. The reason for wanting to avoid such an examination was the fear, based on counsel’s prior experience in another capital case, in which counsel’s client was examined by Dr. Raifman, that the examination and his subsequent testimony regarding it and the findings he made, would, as it did in the prior case, prove harmful to Borchardt and to the defense case. That fear obviously was real and sincere, as it was evident and, indeed, reflected, in the Donner decision. It is significant, however, that the prior experience that counsel had with the State’s expert involved a different defendant and, I would submit, different facts. To be sure, examination of one’s client by an expert retained by one’s opponent is fraught with peril; it may, perhaps often, uncover information or issues unfavorable to the client and to the case sought to be presented, and that expert’s testimony at trial or other court proceeding, may be, as it is intended to be, harmful to the client’s case. That, however, is a risk that always exists. How much of a risk there is, is another matter, one that generally is only a matter of speculation. Whether the risk will be realized is by no means certain, being dependent on a number of factors, including the facts of the case, the preparation, the science, etc. Avoiding a risk that is only speculative does not a strategic choice make. And certainly it cannot be the basis for one, a “strategic choice.”

The Dr. Donner decision was based on no more than speculation. Every defendant is different and so too are the facts of every case. It cannot be supposed reasonably or logically that, simply because an expert was able, by his or her testimony, to “hurt” one case defended by an attorney, that, in a totally different case, with a different defendant and different facts, he or she necessarily will be able to duplicate that feat. That requires a fact-based analysis. Critical to that analysis, indeed essential to determining the impact on one’s case of the examination of a party and testimony with respect to that examination by an expert witness for the other party, is an assessment of one’s own case and the quality of the expert retained to support it, his or her ability to defend his or *650her expert opinion and position and his or her ability to address and explain contrary views, in particular, those offered by the other party. A decision to forego the use of mitigation evidence favorable to the defendant without, at a minimum, undertaking such an analysis is simply not an informed or reasoned one, being, at best, careless and, at worst, a dereliction of duty, a failure to fully investigate or inform oneself before acting. In either case, the effect, the result, is ineffective assistance of counsel.

The majority points out, correctly, I agree, that defense counsel is under no obligation to consult with an expert witness concerning the defense counter to the State’s exhibits, how best to respond to the State’s evidence or a possible State rebuttal witness, and what statutory mitigators to raise at trial. That, however, is not the issue. The issue, rather, is whether the critical decision to forego the use of favorable evidence was an informed one. Presumably, of course, trial counsel could have received information supportive of the Dr. Donner decision from a source other than his expert and, had he done so, the decision would not have been ineffective assistance of counsel. On this record, there simply is no basis for concluding that trial counsel made any pertinent fact-based analysis, not to mention one based on information obtained from a source other than his expert. Thus, the only way in which he could have proceeded to make the Dr. Donner decision with full, or at the least, adequate, information was by discussing the issues and his concerns with Dr. Donner and exploring with him what was probable, based on Dr. Donner’s examination and considering worst case scenarios, should Borchardt be examined by Dr. Raifman. It is counsel’s failure to obtain, or even seek, pertinent information before deciding to forego the use of ostensibly favorable evidence, which constitutes ineffective assistance of counsel. Wiggins and Rompilla dictate that an attorney must fully explore the mitigation paths that exist before making a decision; where he or she has not otherwise conducted a full or adequate investigation using other sources, he or she, before abandoning potentially helpful testimony must, at the very least, talk to his or her *651expert witnesses to determine what potential pitfalls there are and whether they can be overcome.

Dr. Hyde, in preparation for the sentencing proceeding, conducted a series of clinical examinations of Borchardt, including a physical exam, a mental exam, a cranial nerve exam, a motor skills exam, a sensory system exam, and an MRI. He concluded that Borchardt

“suffers from organic brain damage within the cortex, the thinking portion of the brain, which results in impulsive behavior, poor decision making, and the inability to think through the consequences of actions, and that this brain damage contributed to [his] actions in killing the Ohlers; that with abstinence from drugs and alcohol, proper nutrition, proper psychiatric medication, counseling, and a structured environment, it is unlikely that [he] will pose a danger to others; that [he] does not suffer from antisocial personality disorder; that [he] has suffered a significant amount of brain damage which affects his ability to control his actions, explaining, in part, the sexual offense [he] committed in the past; and that [he] is a polysubstance abuser, which also causes brain damage and difficulty in the consideration of consequences to actions.”

Trial counsel agreed to limit Dr. Hyde’s testimony as to the nexus between Borehardt’s brain damage and the crimes of which he had been convicted. He did so without discussing with Dr. Hyde what his testimony would be and of what probable effect not inquiring into nexus would have, out of a non-specific fear of a damaging State’s examination of Borchardt. In fact, Dr. Hyde was not informed, prior to sentencing, that his testimony would be limited.

In regard to the limitation of Dr. Hyde’s testimony, the majority notes:

“Borchardt was not denied effective assistance of counsel because defense counsel failed to consult with Dr. Hyde before agreeing to limit Dr. Hyde’s testimony, Borehardt’s potential for future dangerousness, the impact of State’s Exhibits 6, 7, 8, and the ramifications of Borchardt’s diagno*652sis of antisocial personality disorder. Neither Strickland nor Wiggins require defense counsel to consult with experts on every tactical or strategic issue. Defense counsel made an informed, strategic decision, after full investigation of the facts and preparation of the case, in agreeing to limit Dr. Hyde’s testimony. Defense counsel had reviewed Dr. Hyde’s report and conducted a social history investigation before agreeing to the limitation. Counsel wanted to avoid an examination of Borchardt by the State’s doctors.” They had a strategic reason for doing so and the agreement to limit the testimony did not amount to ineffective assistance of counsel. No further consultation with Dr. Hyde was required.”

396 Md. at 632-33, 914 A.2d at 1153-54.

The same analysis required in the case of Dr. Donner applies with equal force here. I add what I said in Evans. The reasonableness of an attorney’s investigation can not be determined by assessing, alone, what the attorney knows; a reviewing court needs also to consider, and determine, whether the known information would lead a reasonable attorney to investigate further, and that “Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy.” Wiggins at 527, 123 S.Ct. at 2538,156 L.Ed.2d at 488.

The majority gives deference to the decisions made by Borchardt’s counsel because “the question of whether to call a witness is a question of trial strategy entrusted ordinarily to counsel; therefore, we afford defense counsel’s decision not to call the mitigation specialist great deference.” 396 Md. at 614, 914 A.2d at 1142, citing Knight v. Spencer, 447 F.3d 6, 16-17 (1st Cir.2006); United States v. Luciano, 158 F.3d 655, 660 (2d Cir.1998); Sanders v. Trickey, 875 F.2d 205, 212 (8th Cir.1989); Trapnell v. United States, 725 F.2d 149, 155-56 (2d Cir.1983); United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir.1974); In re Davis, 152 Wash.2d 647, 101 P.3d 1, 52 (2004). The majority does note, however, that the decision not to call a witness must be grounded in a strategy that advances the client’s interests, Pavel v. Hollins, *653261 F.3d 210, 218-19 (2d Cir.2001), and that if an attorney decides not to call a witness without regard for the client’s interests, that decision is not a strategic choice entitled to deference, id. at 219. In each case, trial counsel did not make a fully informed decision.

II.

While the majority appropriately recognizes that the Circuit Court erred in not deciding the Paternoster Issue as presented by Borchardt in his amended petition for postconviction relief, 396 Md. at 634, 914 A.2d at 1154, it incorrectly holds that “Borchardt’s apparent Paternoster issue ... has no merit,” 396 Md. at 637, 914 A.2d at 1156, relying on the reasoning of McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) that, in order to establish a statewide Equal Protection or Cruel and Unusual Punishment violation, a defendant must “assert some specific discriminatory intent in their case.” The majority goes on to conclude that “Borchardt makes no claim whatsoever that there is any specific evidence of discrimination in his case.” 396 Md. at 638, 914 A.2d at 1156.

I believe that my discussion of the Paternoster study in Evans, 396 Md. 256, 396-400, 914 A.2d 25, 108-10 (2006) (dissenting, Bell, C.J.) applies with equal force here, that “United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), mandates that [the defendant] be entitled to discovery in order appropriately and effectively to present his selective prosecution claims.” Evans, 396 Md. at 397, 914 A.2d at 108 (dissenting, Bell, C.J.).

In Armstrong, the Supreme Court considered the showing necessary for a defendant to be entitled to discovery on a selective prosecution claim. 517 U.S. at 458,116 S.Ct. at 1483, 134 L.Ed.2d at 694. Armstrong claimed that the government had declined to prosecute defendants of other races that were similarly situated. 517 U.S. at 458, 116 S.Ct. at 1483, 134 L.Ed.2d at 694.

*654In a decision instructing the government to produce information regarding the criteria for deciding when to prosecute cases in which it had charged both firearms and cocaine offenses, the Supreme Court held:

“The requirements for a selective-prosecution claim draw on ‘ordinary equal protection standards.’ ... The claimant must demonstrate that the federal prosecutorial policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose.’ ... To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.”

517 U.S. at 465, 116 S.Ct. at 1487, 134 L.Ed.2d at 699 (citations omitted).

Moreover,

“Having reviewed the requirements to prove a selective-prosecution claim, we turn to the showing necessary to obtain discovery in support of such a claim. If discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant’s claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors’ resources and may disclose the Government’s prosecutorial strategy. The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.”

517 U.S. at 468,116 S.Ct. at 1488,134 L.Ed.2d at 701.

Discussing that correspondingly rigorous standard for discovery, the Supreme Court remarked:

“The Court of Appeals held that a defendant may establish a colorable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant____ We think it was mistaken in this view.
“In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable *655task to prove that persons of other races were being treated differently than respondents. For instance, respondents could have investigated whether similarly situated persons of other races were prosecuted by the State of California and were known to federal law enforcement officers, but were not prosecuted in federal court. We think the required threshold-a credible showing of different treatment of similarly situated persons-adequately balances the Government’s interest in vigorous prosecution and the defendant’s interest in avoiding selective prosecution.”

517 U.S. at 469-470, 116 S.Ct. at 1488-1489, 134 L.Ed.2d at 701-702 (citations omitted). Therefore, under Armstrong, a credible showing of different treatment of similarly situated persons will justify discovery by the defendant.

It does not matter that, as the majority points out, “Borehardt is white and his victims were white,” “[Borchardt] does not allege that the State discriminated against him in any way; other than presenting a facial attack on the [death penalty] statute based on the Paternoster Study,” and “Borchardt’s situation ... is less favorable than is Evans’,” 396 Md. at 638, n. 19, 914 A.2d at 1156, n. 19. The simple fact is that Borchardt is asserting a claim that he was selectively prosecuted in violation of his constitutional rights, and that this affected his conviction.

Additionally, and more important, an adequate presentation of specific evidence of discrimination by the defendant cannot occur without adequate discovery from the State. It follows, then, that until an adequate presentation of specific evidence of discrimination is heard, the merits cannot be decided; to do so would be premature. The Paternoster study illustrates that death-eligible defendants in Baltimore County are more likely to receive a sentence of death than in any other county. This study alone satisfies the Armstrong standard, justifying further discovery.

Judge BATTAGLIA joins in the views expressed in Part I of this opinion and Judge GREENE joins in Part II.

. As stated by Alexander Pope (1688-1744):

“A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again.”

An Essay on Criticism, 1709.

. The post conviction court found that Dr. Donner did not testify, not because of a strategic decision by trial counsel, but rather because of “a scheduling oversight and lack of proper planning” by trial counsel. That finding is supported by the record and, thus, itself requires the relief sought. Perhaps it is because trial counsel did not make any attempt to videotape Dr. Donner’s testimony or hire another expert to take his place when it became clear that Dr. Donner would be out of the country during the sentencing proceeding that the majority accepts the argument that counsel's not calling Dr. Donner was a matter of strategy.