Application for Executive Clemency
TO THE HONORABLE MEL CARNAHAN, GOVERNOR OF MISSOURI:
COMES NOW the applicant, David R. Leisure, by and
through his attorneys, Joseph P. Teasdale and John William
Simon, (1) and petitions the Governor for his order under
Mo. Const. art. IV, ß 7, and Mo. Rev. Stat. ßß 217.800
&
552.070 (1994), commuting the applicant's sentence from
death by lethal injection to life imprisonment without
eligibility for parole, or, in the alternative, staying the
execution presently scheduled for September 1, 1999, and
appointing a board of inquiry under section 552.070, or, in
the alternative, ordering a stay pending an independent
examination of the applicant under Mo. Rev. Stat. ß 552.060
(1994).
David was the only person sentenced to death for allegedly
participating the fatal car-bombing of James Michaels, Sr., in
1980. The grandson of the victim has written on behalf of
that gentleman's survivors to urge clemency, because "[t]he
Michaels family and the Leisure family have experienced
enough grief for one lifetime," and "the execution of David
would bring additional needless hardship, not only to his
family but to my family as well." (2) Both of these
families--and the Lebanese-American community from which
they come--have suffered too much already. Members of
each family were the victims of bombings that, according to
the prosecution, were the work of members of the other
family. It is the sincere desire of both families that the
bloodshed will end; it is hard to see why the State of
Missouri cannot oblige them.
David is a worthy object of mercy. He had an IQ in the low
seventies at the time of his trial, and--according to Dr.
Richard D. Wetzel--his mental functioning may be
diminishing. (3) Counsel have provided the Director of the
Department of Corrections sufficient information to cause
her to certify David for a stay of execution and an
independent determination whether he is competent to be
executed. David grew up as one of eight people sharing two
rooms. David was not successfully toilet-trained until well
into elementary school--where, as one would imagine, he did
not fit in and did not succeed. He went to work in his father's
junkyard instead of finishing elementary school. Throughout
his early life, the social institutions we count on to intervene
to protect and nurture the retarded did not function in his
case. (4) Only after the bombing for which he was convicted
and sentenced to death was his mental retardation
diagnosed.
Several men appear to have participated in this bombing. Of
them, three made deals with the state and federal
governments to avoid prosecution altogether or to receive
plea bargains to lesser charges. Only David and his elder
cousins Paul and Anthony Leisure were tried for capital
murder. The federal government ranked Paul Leisure as first
in culpability, with Anthony as second and one of the
informants as his "right hand man." It ranked David third.
Whereas three of the alleged participants made deals with
the prosecution, Paul and Anthony Leisure were fortunate
enough to obtain counsel who had the experience to
conduct a capital case. Paul received a change of venue;
both received life without parole instead of the death
penalty.
David was represented by a collections attorney who used a
law student as his conduit of information to and from David,
and whose thinking he relied on for grand strategy. David's
present counsel did not learn until February 1999 that this
law student had been laboring under the adverse
psychological effects of untreated chemical dependency.
When they brought this fact to the attention of the federal
courts, the representatives of the State of Missouri said
David couldn't be killed quickly enough, that it didn't matter
that his trial counsel's "brains" was a drug addict.
During the penalty phase of David's trial, his counsel argued
that "David will never get out." The prosecutor objected,
saying "We don't know what the Governor's going to do
with him." (5) The prosecutor told the jurors that they would
not be making the final decision because the Governor of
Missouri has the power to grant clemency. When the
prosecutor lifted that load from the shoulders of the jurors,
he placed it squarely on the Governor. No one can argue that
the jury has made a final decision in this case, because the
attorney for the State of Missouri told them that the final
decision was not theirs but yours. No one should be heard
to complain when you accept the burden that the People of
the State of Missouri placed on you in conferring on you the
power to grant pardons and commutations, especially when
the prosecutor used it as a reason why the jurors should
return a verdict of death.
Many of the doctrines, decisions, and statutory limitations
on the federal courts' power to grant relief from the sentence
of death in David's case are intended not to promote
executions, but to preserve the states' role in the federal
system--not to make the enforcement of the law harsher
against the individual, but to keep the federal government
from overwhelming the several states. Nothing in these
doctrines, decisions, and statutory limitations--and no
decision denying relief on the basis of them--has any
negative implication concerning the authority of the
Governor to grant clemency or concerning the
appropriateness of doing so in any particular case. To the
contrary, in Herrera v. Collins, (6) the Supreme Court of the
United States relied on the power of chief executives to
exercise clemency as a reason why the federal courts should
deny relief in certain situations. If this power is not used, the
rights of our citizens are in
jeopardy, because the federal courts are relying on chief
executives to remedy wrongs and to mitigate harsh results
from which judges do not feel they have the authority to
provide relief.
When the federal courts go overboard in denying not only
relief--but even consideration--in the face of meritorious
constitutional claims, one must reflect that a chief executive
takes an oath to preserve, protect, and defend the
Constitution just as judges do. When, as here, the Governor
is learned in the law, he has every right to enforce the
Constitution if federal judges decline to do so. In the vast
majority of instances in this case, they have declined to
enforce the Constitution not because David has failed to
state a claim on which relief could be granted, but because of
some failure of previous counsel to raise a claim at another
time and in another forum.
In addition, they have declined even to consider David's
constitutional claims because of a statute that was not
enacted until after he filed his petition. As counsel will
document in the following discussion, (7) every other federal
appellate court that hears habeas corpus appeals would
have applied the pre-existing legal standard: only the United
States Court of Appeals for the Eighth Circuit applies the
appeal-limiting provisions of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) retrospectively. David
was never even allowed an federal appeal regarding his
death sentence. From the reinstitution of the death penalty
after 1976 until the adoption of AEDPA in 1996, every
Missouri prisoner who has been executed was allowed such
an appeal. David has been denied such an appeal on the
basis of an isolated position that the Eighth Circuit has taken
on the application of this new statute.
The commutation should be granted, or, in the alternative,
the execution should be stayed and a board of inquiry
appointed. Serious questions exist whether David is
competent to be executed, and a stay would be indicated to
resolve these questions alone. Most fundamentally,
however, it is simply too harsh and too unfair to execute a
retarded man for his alleged role in a crime when the men the
prosecution considered more culpable are either serving life
terms or other sentences or were never tried at all.
Table of Contents
Table of Contents viii
Statement of the Case 1
Reasons for Exercising Clemency 8
I. David is mentally retarded. 8
A. From birth, David has been noticeably deficient in
reasoning skills that we associate with coping with life in
society and which we presume to exist in holding people
accountable for their actions.
8
B. David has an IQ in the low seventies.
10
C. Irrespective of general arguments for and against the
death penalty, and of one's view of other issues in David's
case, it would be wrong to execute David in light of his
mental retardation. 11
II. David is not a threat to anyone. 15
III. The family of the victim opposes executing David. 16
IV. David is the only one of the alleged participants in the
bombing of James Michaels, Sr., to receive a death sentence,
when under the prosecution's own theory, he was less
culpable than two others who received life without parole. 17
V. David's trial counsel abdicated his role as a lawyer to a
nonlawyer who was laboring under the effects of illegal drug
use, and David has yet to have a hearing on this grievance
in the state or federal courts.
21
A. Trial counsel allowed a drug addict to be the "brains" of
David's defense 21
B. David did not receive a hearing on the influence of illegal
drugs on his defense due to conflict of interest 30
VI. David's trial was unfair, and its result unreliable, in that
the judge allowed the prosecution to introduce, in the
penalty phase, a highly prejudicial photograph of the victim
of another, different car-bombing of which David was later
convicted but for which he did not receive the death penalty.
32
VII. David received representation at trial that was
constitutionally ineffective, but the federal courts refused to
apply mandatory precedent from the Supreme Court to
evaluate this ground for relief.
43
VIII. David did not have the full course of judicial review of
his conviction and sentence which would give the public the
necessary confidence that they were obtained without
constitutional violation. 48
A. The result of David's state post-conviction relief
proceedings has been cast into doubt by credible allegations
of conflict of interest.
48
B. The Eighth Circuit has denied David appellate review by
taking an isolated position that the appeal-limiting
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 apply retroactively. 50
Statement of the Case
David Leisure was born in 1950, the third child of Pete and
Jean Leisure. (Attachment D, ? 4.) His immediate family was
poor; as a child, David lived in the same four room apartment
with his parents, his elder brother, his two sisters, his aunt
and uncle, and his two cousins Paul and Anthony.
(Attachment D, ? 9.) David did not complete toilet-training
until he was as old as eight. (Attachment D, ? 12.) David was
thrown out or dropped out of school in the third grade, and
went to work in his father's junkyard. (Attachment D, ? 16.)
He began drinking at age eight to ten, and was involved in
substance abuse by age thirteen. (Attachment D, ?? 25-26.)
David's mother died in 1957. (Attachment D, ? 7.) His elder
brother Richard was fatally shot in a bar in 1963.
(Attachment D, ? 19.) When David's father died in 1973,
David looked up to his elder cousins Paul and Anthony as
father-figures. (Attachment D, ? 10 & 23.) David continued
to work at simple tasks in a junkyard under their domination.
(Attachment D, ?? 21 & 24.)
On September 17, 1980, James A. (Jimmy) Michaels, Sr., was
killed when a bomb exploded in his car while he was driving
on Interstate 55 in the St. Louis, Missouri, area. Paul,
Anthony, and David Leisure were charged with capital
murder for the bombing; in federal court, these men and
others were charged with violation of the Racketeer
Influenced and Corrupt Organizations Act (RICO). (8) Three
of the admitted participants in the bombing became
prosecution witnesses in exchange for plea bargains or
placement in the Federal Witness Protection Program. These
participants testified that the bombing of Mr. Michaels was
the product of power struggles between two competing
organized crime entities in St. Louis and specifically in Local
110 of the Laborers Union.
Whereas Paul and Anthony were represented by
experienced criminal defense lawyers, and received
sentences of life imprisonment without parole, David was
represented by a lawyer with no previous homicide trial
experience and with only three to five criminal jury trials
under his belt. (9) Trial counsel delegated client contact and
other critical tasks to a law student; by his own admission
this law student was laboring under the effects of untreated
chemical dependency. (Attachment F, ?? 11 & 15-16.)
According to other witnesses, he was using cocaine and
heroin at the time of David's trial. (Attachments G & H). On
April 7, 1987, a jury found David guilty of the capital murder
of Jimmy Michaels.
The penalty phase of David's trial was merely a half-day
proceeding. During the penalty phase, the trial court
admitted into evidence, over the objection of David's
counsel, a photograph of the charred remains of George
"Sonny" Faheen, who was killed on October 16, 1981, when
an incendiary bomb burned up his parked car. This
photograph depicts the aftermath of the Faheen car bombing
and shows Faheen's corpse fused to the seat of his
automobile. The only photographs introduced at the penalty
phase were of the Faheen crime scene, even though David
was not on trial for Faheen's death. The prosecutor's only
penalty phase witness testified about the Faheen bombing,
even though David was not on trial for, and had not been
convicted of, that bombing. Without any explanation by the
prosecutor of the Faheen photograph's probative value, the
trial court overruled trial counsel's objection and admitted
the Faheen photograph. The jury returned a punishment
verdict of death.
Paul and Anthony Leisure were also convicted in separate
trials for the capital murder of Jimmy Michaels, but neither
was sentenced to death. Instead, each was sentenced to life
imprisonment without possibility of parole for fifty years.
(10) The Faheen photograph was not admitted during the
trials of either Paul or Anthony Leisure.
The evidence at all of the trials showed that even if he were
involved in the crime, David was the least culpable of those
implicated. The evidence also established that David was
mentally retarded, ill educated, and a substance abuser. Of
all the alleged participants in the bombing, David sits alone
on death row.
Both a direct appeal to the Supreme Court of Missouri and a
state court post-conviction motion under Missouri Supreme
Court Rule 29.15 were unsuccessful. (11) On direct appeal,
two members of the Missouri Supreme Court (Judges
Blackmar and Welliver) concluded that David's death
sentence was unconstitutional based on the erroneous
admission of the Faheen photograph. (12) The dissenting
judges found the admission of the Faheen photograph
unconstitutional, because it did not aid the jury in any way
in reaching a decision and it served solely to prejudice David
and to inflame the passions of the jury. (13) Characterizing
David's penalty phase as a "legalized lynching," Judges
Blackmar and Welliver would have remanded his case for a
new sentencing hearing. (14)
In October 1992, David filed a pro se federal habeas corpus
petition pursuant to 28 U.S.C. ß 2254 in the United States
District Court for the Eastern District of Missouri. Counsel
was appointed and, in August 1993, a First Amended
Petition was filed, raising a number of constitutional claims.
Three of those claims, which are discussed in detail in this
application, are based on: (1) the admission of the Faheen
photograph during the penalty phase of David's trial; (2) the
disproportionality of David's death sentence compared to
the life sentences received by his elder cousins who were
more culpable than David according to the federal
pre-sentence investigation report; and (3) ineffective
assistance of counsel based on the cumulative effect of trial
counsel's errors.
On January 13, 1998, the district court denied the First
Amended Petition in all respects. Leisure v. Bowersox, 990 F.
Supp. 769 (E.D. Mo. 1998). The district court also summarily
denied David a certificate of appealability, even though he
had not yet requested one, and even though the law
requiring the issuance of a certificate of appealability had
not been enacted until almost four years after David filed his
federal habeas petition. (15)
David's appointed counsel subsequently filed a notice of
appeal and an application for a certificate of probable cause
or, in the alternative, for a certificate of appealability, with
the United States Court of Appeals for the Eighth Circuit. On
May 26, 1998, the court of appeals summarily denied David
an appeal. The Eighth Circuit's order stated in its entirety:
The court, having reviewed the record in this case, denies
the application for certificate of appealability. [Attachment I.]
The court of appeals also summarily denied David's timely
petition for rehearing. Judge McMillian would have granted
the suggestion for rehearing en banc. The Supreme Court of
the United States denied certiorari on March 29, 1999. (16)
While David's certiorari petition was pending, counsel
learned, in February 1999, of a good-faith basis for believing
that a law student who had been trial counsel's conduit of
information to and from David, and who had come up with
the idea of abandoning David's alibi defense in favor of a
diminished-capacity defense, had been on drugs at the time
of David's trial. Immediately after learning of the denial of
certiorari, David's counsel filed a motion for relief from
judgment in the federal district court under Fed. R. Civ. P.
60(b)(6). They presented an affidavit from trial counsel
setting forth his basis for believing that the law student,
Gerald Wayne Bassett, had been on drugs. (Attachment J.)
When the respondent expressed disbelief that trial counsel's
observations meant Mr. Bassett had been on drugs, counsel
obtained and filed declarations from women who knew Mr.
Bassett at the time, and these declarations removed any
ambiguity. (See Attachments G & H.) The district court
denied relief, holding that the Rule 60(b)(6) motion
was actually a second petition.
Counsel sought relief from the Eighth Circuit, and in reply to
the respondent's denials that Mr. Bassett was on drugs, they
obtained an affidavit from him that sets out the contours of
his drug problem and its effect on his work for David.
(Attachment F.) On August 24, 1999, the Eighth Circuit
denied all relief, including a stay of execution to seek review
of its decision by the Supreme Court.
Reasons for Exercising Clemency
1.David is mentally retarded.
1.From birth, David has been
noticeably deficient in reasoning
skills that we associate with coping
with life in society and which we
presume to exist in holding people
accountable for their actions.
David Leisure was born about two months
premature, into a poor family that did not
generally receive medical care. (Attachment D,
?? 8, 9 & 10.) (17) David was not toilet-trained
until he was as old as eight. (? 12.) Other
children called him names reflecting the
presence of feces on his person. (? 13.) Not
surprisingly, David had great difficulty at school;
he quit school or was thrown out of school in the
third grade, and went to work for his father in a
junk or salvage yard. (?? 15-16.) Rather than
being tested and tracked into special education
classes, which would have remediated his
condition to the extent possible, David was able
to learn simple, mechanical tasks in the
junkyard, which masked his mental deficits to
those around him. (? 21.)
David grew up in a four-room flat that his
nuclear family shared with that of his uncle Paul
Leisure, Sr.; David grew up in a sibling-to-sibling
relationship with his elder cousins Paul and
Anthony Leisure. (? 9.) Especially after the
deaths of David's parents and his own elder
brother Richard, David looked up to Paul and
Anthony as one might to a father. (?? 19-20 &
22-24.) Paul and Anthony Leisure dominated and
manipulated David, sometimes putting him in a
cage and hoisting it up on a boom crane. (? 24.)
Due to his family's poverty, his father's attitude
toward medical care, David's ability to perform
the simple tasks required of a helper in a
junkyard, and his willingness to go along with his
elder family members, David was not the object
of intervention by social institutions that would
have taught and treated him in accordance with
his mental handicaps. Instead, David began
using alcohol at the age of eight to ten. (? 25.)
He began sniffing glue at about age thirteen.
(? 26.) He went on to use illegal drugs, to the
point where two family members considered
having him committed the year before the
bombing for which he was convicted and
sentenced to death, but abandoned this idea
because David appeared to stop or control the
abuse. (? 27-28.)
Only after the bombing for which David has been
convicted and sentenced to death was he
diagnosed as mentally retarded.
1.David has an IQ in the low
seventies.
In his testimony at David's trial, Dr. Daniel J.
Cuneo of Chester State Hospital in Illinois
testified that he had performed two IQ tests on
David, and that David scored 70 on one test and
74 on the other. (18) The first was the "Quick
Test"; the second was the Wechsler Adult
Intelligence Scale Revised (WAIS-R). On the
basis of these tests, Dr. Cuneo testified that
David's IQ was between 70 and 74. (Attachment
K at 104-12.)
In considering whether to inform the Director of
the Department of Corrections to seek a mental
examination under Mo. Rev. Stat. ß 552.060
(1994), counsel sought an opinion from Dr.
Richard D. Wetzel of Washington University
School of Medicine. (19) Dr. Wetzel reviewed
records of previous psychological evaluations of
David, and concluded that "[t]here is a strong
basis to suspect that Mr. Leisure has suffered
brain damage or brain disease." (Attachment B
at 2.) Whereas Dr. Cuneo had discounted earlier
IQ tests because they were given in group
settings at school where students could copy off
of others' papers and the data collection
procedures were otherwise compromised, Dr.
Wetzel combined these scores with a lower score
subsequent to Dr. Cuneo's tests to suggest a
degenerative condition. (Attachment B at 2,
? 4.iii.) Dr. Wetzel pointed out that a previous
report had found "possible frontal lobe atrophy"
indicating a
"global decrease in [David's] central nervous
system," which is "a rare and unusual finding"
that "cannot be malingered." (Attachment B at
2, ? 4.ii.) Unless David is independently
determined to be competent, it would be
fundamentally immoral to execute him.
1.Irrespective of general arguments
for and against the death penalty,
and of one's view of other issues in
David's case, it would be wrong to
execute David in light of his mental
retardation.
Our society rejects the execution of the mentally
retarded because such a practice is inconsistent
with the objectives, such as retribution and
deterrence, that we rely on to support capital
punishment. (20)
Retribution is a weak argument for executing a
person who is not operating at a normal
intelligence level: such a person is simply not as
accountable for his or her actions. Even if we
need to confine them and are justified in
punishing them to some extent, we naturally
draw back from inflicting the most severe
penalty. When the Supreme Court of the United
States held that it was not unconstitutional for
the states and the federal government to resume
executing their citizens in 1976, it qualified this
holding to cover cases in which "a life has been
taken deliberately by the offender." (21)
Mentally retarded people are by definition not
as able to deliberate, and are simply not as
blameworthy as others who engage in activity
like the activity for which David was convicted.
The limits of blameworthiness of retarded people
places a limit on our punishment of them that is
consistent with general support for the death
penalty.
Deterrence is also a weak basis for executing a
mentally retarded person. Deterrence presumes
that the individual engages in a cost/benefit
analysis before taking or refraining from an
action which the law seeks to prevent. For the
same reason that a mentally retarded person is
not as blameworthy morally as a person of
normal intelligence, a mentally retarded person
is less likely to be deterred by the threat of
capital punishment. Execution of a retarded
person diminishes deterrence to the rest of
society: any punishment is less likely to deter
crime when its imposition is seen to depend not
on the choices of the offender than on conditions
in his or her past that he or she cannot change,
or behavior of the legal system that he or she
cannot understand and certainly cannot control.
A mentally retarded person is more likely than
the average person to be convicted and
sentenced to death on account of the behavior of
others. In this case, David was dominated by
Paul and Anthony from his childhood through the
time they were in the St. Louis City Jail before
their capital murder trials. Such domination was
not the product of a conscious, informed,
intelligent choice but of mental retardation; it
would be unjust to punish David more harshly
than Paul and Anthony for the actions the courts
have found him to have committed.
A mentally retarded person is less likely to
receive adequate legal representation and
otherwise to receive the rights of the accused
that we rely on to prevent the conviction of the
innocent and to promote the selection of
appropriate punishments for the guilty.
Especially where, as in this case, the retarded
defendant is easily manipulated by persons
around him, both codefendants and counsel can
overbear the defendant's will whether by
trickery or simply by saying what they want him
or her to do. Legal decisions such as whether to
take the stand are less attributable to the
mentally retarded defendant than they are to the
average defendant.
A mentally retarded person is also less likely to
appreciate the prospect of his own death, and to
prepare for it as the law presumes he or she has
a right to do. Although the Supreme Court
surveys secular rationales for not executing the
insane, the historical reason still applies among
people of faith, and is a proper consideration so
long as a religious viewpoint is not forced on the
condemned person: it has been the law for five
hundred years that we do not execute the insane,
because they are incapable of preparing
themselves to meet their Maker; as we reflect
on our own mortality, we draw back from any
action on our part that may not only extinguish
the condemned person's physical existence but
doom their eternal soul as well. (22) But the same
reasoning applies to the retarded. Whether or
not it is a basis for legal relief, it is a basis for
extending mercy.
A mentally retarded person presents less of a
danger to society than a person of normal or
superior intelligence or a person with active
psychoses. Society can completely defend itself
against any potential threat from a retarded
person by confinement as opposed to execution.
Although the contributions of a retarded person
will be limited in comparison to those of other
persons, a retarded person can contribute to
society within a structured environment in which
good behavior is positively reinforced.
Notwithstanding his mental deficiencies, David
can play a valuable role in his structured
environment. As Attachment L illustrates, he is
doing so now. David does not need to be killed.
1.David is not a threat to anyone.
David's record in the Department of Corrections
is one of positive value to the staff and other
inmates, not one of threats to others within or
without the Department. Although he has
received occasional, minor conduct violation
reports, he has also contributed to the lives of
other prisoners and eased the tasks of staff by
his work in the Recreation Department.
Attachment L. In 1993, then Superintendent Paul
Delo wrote him a letter of commendation for
assisting a staff member when she had an
accident. Attachment M. This pleasant,
generous demeanor dates back to the time he
and his cousin Anthony were in the St. Louis
City Jail before trial. Attachment N. He has also
remained a valued part of his family, and has
contributed to raising his children to be honest,
productive citizens. Attachment D (?? 29-30).
Killing David cannot be justified by any need to
protect society from him. In his structured
environment David is able to contribute to
society.
1.The family of the victim opposes executing
David.
In his letter of March 11, 1999, James A.
Michaels iii--grandson of the man who was killed
in the bombing for which David was sentenced to
death--expresses the belief of the Michaels
family that David should not be executed.
(Attachment A.) This letter is especially
significant because according to one of the
admitted participants who made a
testimony-for-leniency deal with the prosecution
(which can hardly be taken at face value, in light
of these witnesses' obvious incentive to
fabricate), David proposed detonating the bomb
when James A. Michaels iii was at his
grandfather's car with his grandfather. (23) The
author of this letter was not only the grandson of
the victim, but also a potential victim himself. He
and his family understand that perpetuating a
cycle of violence does no one any good.
In addition to Mr. Michaels, Chorbishop Robert
J. Shaheen--the clergyman in charge of St.
Raymond's Church both at the time of the
bombing and today--has written in support of
clemency. (Attachment O.) Like Mr. Michaels,
St. Raymond's Church was a potential victim of
the bomb that killed the elder Mr. Michaels if
one believes the prosecution's evidence. When
the victims and potential victims show mercy on
David, they set a good example for us all. They
want the bloodshed to cease. In this case, the
Governor of the State of Missouri can make that
happen.
1.David is the only one of the alleged
participants in the bombing of James
Michaels, Sr., to receive a death sentence,
when under the prosecution's own theory,
he was less culpable than two others who
received life without parole.
Actually imposing the death penalty on David
would be excessive and disproportionate in light
of the life sentences imposed on the alleged
participants in the murder of Mr. Michaels--Paul
Leisure and Anthony Leisure--whom the
prosecution itself considered more culpable. (24)
The injustice is inescapable when one considers
David's lack of mental abilities. It is all the more
excessive and disproportionate when one
considers that two admitted participants,
Broderick and Ramo, received substantially
lighter sentences than Paul and Anthony. State
prosecutors to deals with Broderick and Ramo,
because they agreed to testify against Paul,
Anthony, and David. The man who actually made
the bomb, Fred Prater, was not prosecuted but
placed in the Witness Protection Program; the
state prosecutors did not call him at David's trial
because the discrepancies between his story and
the already inconsistent stories of Ramo and
Broderick would have been fatally damaging to
the prosecution's case.
The Eighth Circuit has previously granted relief
in an analogous case on the issue of an unfair
and disproportionate sentence. (25) This decision,
as well as the others noted below, shows that
jurists of reason could disagree over whether
meaningful appellate review of a death penalty
case requires a comparison of sentences
received by others convicted of exactly the same
crime (when there are multiple participants), and
thus whether David's death sentence violates
the Eighth and Fourteenth Amendments.
Of all the convictions in the Jimmy Michaels
case and the cases of other violence affecting
both families, only David's conviction resulted in
a death sentence. But the evidence at both the
respective state trials and a related federal
RICO trial demonstrated that David--even if he
was involved in the crime--was the least culpable
of the Leisure family: "Pauley was the power,
Anthony was the brains, and David was basically
step and fetch." (Attachment P at 151.) The
federal pre-sentence investigation report
concluded:
In terms of culpability, the U.S. Attorney's
Office ranked Paul Leisure first as head of the
organization. Anthony Leisure was ranked
second with Joe Broderick described as Anthony
Leisure's right hand man. They stated David
Leisure was ranked third in culpability . . . .
[Attachment Q at 6.]
In addition, the evidence presented during his
state trial established that David was mentally
retarded (with an I.Q. in the low 70's), (26) ill
educated, and addled by drug use. (27) The
evidence also demonstrated that David was a
follower, not dangerous alone; if he were
dangerous it would only be when he was subject
to the domination and manipulation of others
with dangerous intentions--in this instance, his
older cousins Paul and Anthony Leisure. (28)
The sentences received by David's codefendants
are the only similar sentences to which David's
death sentence should fairly have been
compared. (29) The alleged masterminds behind
the crime did not receive the death penalty. (30)
The review of David's sentence was arbitrary
and irrational. The death sentence cannot be
imposed in such circumstances without a
deprivation of David's Fourteenth Amendment
rights to equal protection and due process, and
his Eighth Amendment right to be free from
cruel and unusual punishment. (31) To impose the
death penalty in this case would be to disconnect
the law from what is right and wrong in the minds
of the people and of their spiritual and
intellectual leaders.
It is a sufficient basis for the exercise of
clemency. This case is not one in which different
juries simply came to different decisions. David
did not have a fair trial, because he did not
receive constitutionally effective counsel.
Anthony was represented by Richard H.
Sindel--a leading member of the St. Louis bar
with special expertise in capital litigation--and
Paul was represented by senior criminal defense
lawyer Alvin M. Binder of Jackson, Mississippi,
who obtained a change of venue to St. Joseph.
David was represented by an attorney who was
not ready to try a capital case, and who
abdicated his role as attorney to a law student
with a drug problem. Even when his life was at
stake, David wound up on the short end of the
stick once more: his trial counsel had never tried
a murder case--let alone a capital case--and had
little experience with criminal cases in the first
place. (Attachment E, ? 2.) David was too
retarded, and too much the follower, to
know the disadvantage to which he was being
subjected.
1.David's trial counsel abdicated his role as
a lawyer to a nonlawyer who was laboring
under the effects of illegal drug use, and
David has yet to have a hearing on this
grievance in the state or federal courts.
1.Trial counsel allowed a drug addict to
be the "brains" of David's defense.
David's counsel at the trial level, Alan N.
Zvibleman, delegated substantial trial
preparation responsibilities to Gerald Wayne
Bassett during critical periods of David's state
court proceedings. (32) Before and during trial,
Mr. Bassett acted as the conduit between Mr.
Zvibleman and David, and almost all
communications with respect to strategy or the
facts of the case were transmitted to Mr.
Zvibleman via Mr. Bassett. (33)
In an affidavit from Mr. Zvibleman (Attachment
I), he has stated his belief that Mr. Bassett's
abilities were impaired by illegal drug use during
the time of the trial:
9. During trial preparation and the trial itself, I
noticed behaviors on the part of Mr. Bassett
that I now believe were manifestations of illegal
drug use. These behaviors included, but were not
limited to, a jerkiness or an inability to remain
still, and abnormally fast talking.
10. If I had believed that Mr. Bassett was using
illegal drugs at the time of trial preparation and
the trial in Mr. Leisure's case, I would not have
allowed him to assist me in my practice. I believe
that drug usage could have substantially
impaired Mr. Bassett's ability to assist me and
Mr. Leisure in the preparation and presentation
of Mr. Leisure's defense.
David's counsel discovered a good-faith basis to
pursue Mr. Bassett's drug problem on February
12, 1999, in the course of an interview of Mr.
Zvibleman; at his suggestion or simultaneously
with an interview of him, counsel found an article
of February 5, 1999, in the St. Louis
Post-Dispatch to the effect that the Illinois
Supreme Court had reinstated Mr. Bassett's law
license, which he had voluntarily placed on
inactive status on account of his drug problem.
By the time of this discovery, the federal district
court had already denied relief, the Eighth
Circuit had denied a certificate of appealability,
and the matter was before the Supreme Court of
the United States on a petition for certiorari.
When the Supreme Court denied certiorari,
David's counsel filed a motion for relief from
judgment under Fed. R. Civ. P. 60(b) based on
this newly discovered evidence. They alleged
that Mr. Zvibleman's failure to detect Mr.
Bassett's mental problems stemming from past
or present illegal drug use elevated Mr.
Zvibleman's already ineffective assistance to the
level of gross negligence, and thus satisfied the
"extraordinary circumstances" test of Fed. R.
Civ. P. 60(b)(6).
Counsel for the respondent in the federal habeas
corpus proceeding questioned whether the
symptoms on which Mr. Zvibleman relied were
sufficient to establish that Mr. Bassett was on
drugs. In reply to this response, David's counsel
obtained a declaration and an affidavit from
Glinda Joseph, and submitted the declaration to
the federal court. (34) In it Ms. Joseph swears
that Bassett regularly used illegal drugs in her
presence during the time of David's trial, and
that such drug use detrimentally affected his
abilities and made him disinterested in
preparation for David's trial:
4. During the period of Mr. Leisure's trial, Jerry
Bassett would come to my house a few times a
week.
5. During those visits, I observed Mr. Bassett
using illegal drugs.
6. On some occasions, I would personally inject
Mr. Bassett with illegal drugs, at his request,
because he could not find a vein or, when he was
doing cocaine, because he was too nervous or
shaky to do it himself.
7. These drugs included cocaine, heroin, and
Dilaudid.
8. Mr. Bassett used these drugs intravenously in
my presence.
***
14. During the period of Mr. Leisure's trial for
the murder of Jimmy Michaels, Sr., Mr. Bassett
appeared to me to be always wanting illegal
drugs.
15. During the period of Mr. Leisure's trial for
the murder of Jimmy Michaels, Sr., Mr.
Bassett's illegal drug use affected his judgment
to the point where he did not seem to care about
his work, as distinguished from getting his next
hit.
In similar sworn statements from Melinda
Coleman, (35) she states that during the time of
David's trial and post-conviction proceedings,
Mr. Bassett regularly made and received calls in
her presence involving the procurement of illegal
drugs, had illegal drugs on his person in Ms.
Coleman's presence, and exhibited numerous
signs of illegal drug use, while also being
exceptionally clever about covering up his use of
such drugs:
5. Mr. Bassett made and received telephone
calls from my residence in which he arranged to
purchase and pick up illegal drugs.
6. Mr. Bassett had on his person illegal drugs.
On one occasion, he reached into the vest
pocket of his jacket for a pen, and several
Dilaudid pills in a cigarette cellophane fell on the
floor of my living room. I saw him pick them up
and put them pack in his pocket.
7. Mr. Bassett had bloodstains on his shirt
where he would have bled from injecting drugs
into his arm.
8. During the period surrounding the trial of
David Leisure, I knew dozens of people who
were addicted to or otherwise used illegal drugs.
***
13. Mr. Bassett was exceptionally clever about
covering up his use of illegal drugs. He was
quick in coming up with excuses or explanations
that would lead another person to believe there
was another reason for his drug-related
behavior. A person who was not familiar with
people who are on illegal drugs would not have
known that Mr. Bassett was using them at the
time of Mr. Leisure's trial. On a few occasions I
have seen Mr. Bassett go into court when he
was high on drugs, and conduct a case without
anyone noticing that he was on drugs.
Mr. Bassett's use of illegal drugs while
preparing for and during David's trial made it
impossible for David to communicate with his
trial counsel in a meaningful manner. This
impossibility was particularly prejudicial where,
as here, David's counsel was relying on Mr.
Bassett to communicate with David.
In response to further expressions of disbelief
from the respondent's counsel, David's counsel
obtained from Mr. Bassett a declaration and an
affidavit that remove any doubt whether at the
time of David's trial he was laboring under the
psychological effects of untreated chemical
dependency, and that these effects prejudiced
David by inserting into his defense Mr.
Bassett's grandiose ideations overlapping with
narcissistic personality disorder. (36)
Mr. Bassett confirms that during the 1970s and
1980s he engaged extensively in substance
abuse involving both heroin and cocaine.
(Attachment F, ? 10.) At no point from August
1980 until February 1995 was Mr. Bassett free
from the adverse psychological effects of
untreated chemical dependency. (? 11.) As an
element of his untreated chemical dependency,
Mr. Bassett had grandiose ideations overlapping
with narcissistic personality disorder. (? 12.)
Among the specific instances of grandiose,
narcissistic ideations growing out of Bassett's
untreated chemical dependency were: (1) the
idea that he could act as second-chair counsel in
a capital murder case, even though he had only
attending one other trial--his own trial on
corruption charges--in which he was represented
by counsel; (2) the idea that he could
successfully defend David by approaching the
trial as he approached last minute preparation
for a law school examination; (3) the belief that
he could employ a diminished capacity
defense to persuade the jury to acquit David
after David and his co-defendants had already
been convicted in federal court under the
Racketeer Influenced and Corrupt
Organizations Act (RICO) in a trial in the same
location, and in which one of the predicate acts
alleged was the Michaels bombing. (?? 13-14.)
Mr. Bassett continues that Mr. Zvibleman
allowed him to interact extensively with David
and to develop the defense strategy, despite the
fact that Mr. Bassett was still a law student at
the time. (? 15.) Among the results of Mr.
Zvibleman's abdication of these tasks to a
nonlawyer, Mr. Bassett was the principal conduit
of information between Mr. Zvibleman and
David. (? 16.) Mr. Bassett used this influence to
mislead David about which defense would be
used and whether David would be allowed to
testify on his own behalf. (?? 16-17.)
Mr. Bassett was also the force behind the
decision to use the diminished capacity defense.
(? 17.) Throughout the federal litigation David's
counsel have explained that David was never
told by Mr. Bassett that he would not testify,
and Mr. Bassett never told Mr. Zvibleman that
David believed he would testify and that David
insisted upon testifying.
Mr. Bassett's affidavit demonstrates that, but
for constitutional error, no reasonable fact finder
would have sentenced David to death for the
murder of Mr. Michaels. Bassett states that he
worked on Anthony Leisure's case, and that
Anthony's trial counsel spent considerable more
time working on Anthony's case, meeting with
Anthony, and working with and supervising Mr.
Bassett than Mr. Zvibleman had. (?? 20-21.) Mr.
Bassett also observes that "When he was
represented by counsel who did not abdicate trial
preparation and client communications to a
nonlawyer disabled by the effects of untreated
chemical dependency, Anthony Leisure received
life without parole for the same crime in the
same venue where David Leisure was sentenced
to death, when the prosecutors' own theory was
that Anthony was more culpable in the bombing
than David was." (? 22.)
Mr. Bassett's drug use manifested itself in a
manner that "could have substantially impaired"
his ability to assist in preparing David's case for
a capital murder trial. Trial counsel's conduct so
undermined the proper functioning of the
adversarial process that the trial cannot be
relied on has having produced a just result. This
was particularly true in a death penalty case
where the client's life hung in the balance.
The federal courts should have granted relief, or
at least held a hearing, on this grievance. The
district court denied relief on the basis that the
Rule 60(b)(6) motion was "really" a second
petition, and required the permission of the
Eighth Circuit under AEDPA. David's counsel
sought to appeal this ruling or, in the alternative,
to obtain the Eighth Circuit's permission to file a
second petition to raise this grievance. On
August 24, 1999, the Eighth Circuit panel to
which David's most recent pleadings were
directed denied relief, once more without giving
any reasons. At this writing, the Eighth Circuit
en banc, the Missouri Supreme Court, and the
United States Supreme Court still have the
opportunity to grant relief on this ground or at
least to grant a stay of execution to allow David
to litigate it. Counsel submit this application in
an abundance of caution, so that the Executive
Branch may review the evidence and authorities
supporting this grievance, and may either
commute David's sentence for this and the other
reasons advanced or appoint a board of inquiry
to review this grievance and any of the others
concerning which the courts have failed and
refused to give David the time of day.
1.David did not receive a hearing on
the influence of illegal drugs on his
defense due to conflict of interest.
After receiving a death sentence, David's claims
of trial counsel's ineffectiveness were
considered in a post-conviction relief hearing
pursuant to Missouri Supreme Court Rule 29.15.
In David's Rule 29.15 hearing, Mr. Bassett did
not testify to his own drug abuse during the
preparation and prosecution of David's case or
to the manner in which such drug abuse impaired
communications between David and Mr.
Zvibleman, caused a breakdown in the
attorney-client relationship, and deprived David
of effective assistance of counsel. (37) He was
entirely silent on this point, although he was
ostensibly testifying on behalf of David. In order
for Mr. Bassett to have truthfully apprised the
PCR motion court of the scope of David's
deprivation of the right to counsel, Mr. Bassett
would have had to confess to criminal drug
activity. Because Mr. Bassett was incapable of
protecting David's interests without jeopardizing
his own interests, an
unacceptable conflict of interest arose, further
depriving David of his right to the effective
assistance of counsel.
David's lead litigation counsel have also filed
pleadings in the Eighth Circuit and in the
Missouri Supreme Court citing a conflict of
interest on the part of David's Rule 29.15
counsel, Richard H. Sindel, in conducting the
hearing. Clemency counsel attach a copy of
litigation counsel's most recent Eighth Circuit
pleading as Attachment R. If Rule 29.15 counsel
could not bring out Mr. Bassett's drug problem
without exposing himself to discipline for having
used Mr. Bassett himself in Anthony Leisure's
trial, one cannot count on the state
post-conviction relief proceedings to have
vindicated David's Sixth Amendment right to the
effective assistance of trial counsel. Although
David's counsel have distinguished the cases on
which the respondent relies in arguing that the
federal courts "cannot" grant relief in this
situation, they cannot expect the courts to do so.
These considerations sounding in conflict of
interest must provide additional reasons for the
exercise of clemency, at least to provide a forum
to resolve these questions when the judicial
courts will not.
1.David's trial was unfair, and its result
unreliable, in that the judge allowed the
prosecution to introduce, in the penalty
phase, a highly prejudicial photograph of
the victim of another, different
car-bombing of which David was later
convicted but for which he did not receive
the death penalty.
During the penalty phase of David's trial, the
court admitted into evidence--over the objection
of David's counsel--a photograph of the charred
remains of George "Sonny" Faheen, who was
killed on October 16, 1981, when an incendiary
bomb burned up his parked car. This photograph
depicts the aftermath of the Faheen car-bombing
and shows Faheen's corpse fused to the seat of
his automobile. The only photographs introduced
at the penalty phase were of the Faheen crime
scene, even though David was not on trial for
Faheen's death, thus highlighting the
photographs to jurors. The prosecutor's only
penalty phase witness testified about the Faheen
bombing, even though David was not on trial for,
and had not been convicted of, that bombing.
Without any explanation by the prosecutor of the
Faheen photograph's probative value, the trial
court overruled David's counsel's objection and
admitted the Faheen photograph, stating only
that the "jury is entitled to know as much about
the defendant as they possibly can." (Trial
Transcript, Vol. X, p. 6.)
The federal courts have denied David an appeal
on the admission of the Faheen photograph.
Even under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), the
standard for whether an unsuccessful habeas
corpus petitioner should receive an appeal is the
one the Supreme Court had previously set forth
in Barefoot v. Estelle, (38) which asks whether
the petitioner has made a "substantial showing"
that his or her constitutional rights had been
violated, in which one test is whether any of his
or her issues are "debatable among jurists of
reason."
Reasonable jurists have differed on whether the
admission of a gruesome photograph of an
unrelated and unadjudicated crime so infects a
sentencing hearing as to make it fundamentally
unfair. Two judges on the Missouri Supreme
Court thought this photograph rendered David's
sentencing untrustworthy. The United States
Supreme Court has previously granted certiorari
on a similar issue, (39) and Justices of that
Court--as well as several state supreme
courts--have found admission of evidence of
unadjudicated crimes to be unconstitutional. (40)
In David's case, the federal district and
appellate courts improperly applied the legal
standard for allowing habeas corpus appeals
because they ignored the scathing dissent on the
Faheen photograph issue by two jurists of reason
sitting on the highest court in Missouri. Judges
Blackmar and Welliver concluded that admission
of the Faheen photograph during David's
sentencing phase was unconstitutional, because
the photograph did not aid the jury in any way in
reaching a decision and it served solely to
prejudice David and inflame the passions of the
jury. State v. Leisure, 749 S.W.2d at 383-84
(Blackmar, J., joined by Welliver, J., concurring
in part and dissenting in part). Judges Blackmar
and Welliver memorialized the debate over the
admissibility of the Faheen photograph in their
dissent "so that similar inappropriate rulings will
not be made in the future . . . [because the]
penalty phase should not become a legalized
lynching." Id. at 385.
The brevity of the lower federal courts' analyses
concerning David's right to meaningful appellate
review makes it impossible to know why the
appeal was denied. The lower federal courts'
failure to acknowledge the serious constitutional
debate among jurists of Missouri's highest court
on David's direct appeal casts serious doubt on
their application of the Barefoot standard in this
case. Where execution hinges on the resolution
of a constitutional issue, mere recitation of the
Barefoot standard should not discharge a federal
court's duty to conduct a meaningful
appealability determination, particularly where
other judges have already differed on the issues
David seeks to appeal. Instead of merely giving
the recitation of the Barefoot language
talismanic effect, courts should consider the
actual procedural history of the case to
determine if the issues raised are debatable.
Other courts have done so. (41)
A certificate of appealability on this issue was
further justified because in Thompson v.
Oklahoma, (42) the Supreme Court had
previously granted certiorari on the issue
whether the admission of a gruesome
photograph at the sentencing phase of a capital
murder case violated a defendant's
constitutional rights. Ultimately, the majority in
Thompson v. Oklahoma never reached the
gruesome photograph issue, reversing the death
sentence on other grounds (relating to the youth
of the offender at the time of the offense). (43)
The decision to grant certiorari demonstrates
that a substantial constitutional issue is involved
and that this issue is one that is debatable
among reasonable jurists. In fact, the issue
presented here is even more substantial in view
of the fact that the Faheen photograph involved
the victim of a separate crime for which David
was not on trial and had not been convicted. At a
minimum, the federal courts should have
issued David a certificate of appealability,
because courts have reached different
conclusions on this significant constitutional
issue. (44) Because the courts have denied him a
forum on this constitutional grievance, David
presents it to the Executive Branch.
Matters devoid of probative value introduced in
a capital sentencing hearing solely to inflame the
passions of the jury are generally
unconstitutional and are per se prejudicial. (45)
At the very least, reasonable jurists can--and in
fact already have--differed on whether evidence
introduced for such a purpose violated David's
constitutional rights in this case. The Faheen
photograph's only purpose was to show the jury
the aftermath of a bombing for which David was
not on trial and had not been convicted. "How
could it more clearly appear that the prosecution
had no purpose in mind other than shock value in
introducing the pictures into evidence?" (46)
Because the Faheen photograph inflamed the
passions of the jurors before they determined
that David should die, no amount of aggravating
factors could erase the vice. (47) The admission
of the photograph "so affect[ed] the fundamental
fairness of the sentencing proceeding as to
violate the Eighth Amendment." (48)
Even the majority opinion of the Missouri
Supreme Court in David's direct appeal
recognized that the Faheen photograph was
"gruesome," demonstrating an awareness of the
picture's potential prejudicial impact. (49) The
majority ignored this impact by repeating the
same litany recited by the trial court when the
photograph was challenged below: "[I]n the
penalty phase, the jury is entitled to receive as
much information as possible in order to make
an informed decision as to punishment." (50) This
reasoning is seriously flawed, however, in this
death penalty case, because the Faheen
photograph did not relate to a crime for which
David was on trial, and the "state may seek
retribution only in relation to the
blameworthiness of the actor in relation to the
crime for which the state seeks to impose the
death penalty." (51)
Because the Faheen photograph is per se
prejudicial, "harmless error" analysis is
inapplicable. David was subsequently convicted
of the Faheen murder, but was not sentenced to
death even though the prosecution sought the
death penalty. Because the admission of the
Faheen photograph at David's penalty phase in
his trial for the murder of Mr. Michaels was per
se prejudicial, his subsequent conviction is
irrelevant and the harmless error test is not
applicable. In any event, any harmless error
analysis should be conducted in light of the facts
as they stood at the time of the trial in question.
At that time, David had not been convicted of
the Faheen bombing. (52) The Faheen
photograph was entirely irrelevant, and the
inflammatory character of the photograph posed
a constitutionally unacceptable risk that the jury
would arbitrarily sentence David to die.
Even assuming that admission of the Faheen
photograph could be reviewed for harmless
error, the admission of the Faheen photograph
had a "substantial and injurious effect or
influence in determining the jury's verdict," and
accordingly was not harmless. (53) The Missouri
Supreme Court's struggle to conclude that any
error was harmless was not persuasive, as Judge
Blackmar explained:
The principal opinion labors to justify the
admission, or to find a ground for affirmance, but
the effort is not convincing. It is first suggested
that the gruesome pictures properly introduced
at the guilt phase somehow mitigate the effect of
the introduction of pictures of another killing
which is not on trial. It is suggested that a little
more gore would make no difference. I cannot
accept this argument when a man is on trial for
his life.
Nor is the effect of the pictures minified because
the trial judge told the jury, correctly, that the
defendant had not been convicted of the murder
of Faheen. The submission of the pictures, then,
serves to say to the jury, "these illustrate the
aftermath of a bomb killing which the defendant
may have participated in." How could it more
clearly appear that the prosecution had no
purpose in mind other than shock value in
introducing the pictures into evidence? (54)
Furthermore, the Missouri Supreme Court and
the United States district court incorrectly relied
on the jury's finding of several aggravating
factors other than David's RICO conviction, in
holding that any error in admitting the Faheen
photograph was harmless. The Faheen
photograph was so grossly or conspicuously
prejudicial that it fatally infected the sentencing
phase of David's trial. Thus, it cannot be
assumed that the jurors confined their inflamed
passions to finding the RICO conviction was a
non-statutory aggravating factor and set their
passions aside when looking at the other
aggravating factors. (55)
One juror, Ms. Donna Denando, executed an
affidavit that was submitted to the district court
as an attachment to David's First Amended
Petition for Writ of Habeas Corpus. In her
affidavit, Ms. Denando advised the court that
"[h]ad the photograph of George Faheen's body
not been admitted into evidence, . . . there [was]
a reasonable likelihood that [she] would not have
been inclined to recommend a death sentence
against [David]." (Attachment S). Although the
district court indicated it could not consider the
affidavit based on Federal Rule of Evidence
606(b), it cannot be said as a matter of fact that
the admission was "harmless." (56)
Admission of the Faheen photograph during the
penalty phase of David's trial is a sufficient
reason for commuting David's death sentence.
At a minimum, reasonable jurists on the United
States Supreme Court and other courts,
including the Missouri Supreme Court in David's
direct appeal, have differed on this issue. The
federal district court and the court of appeals
erred in denying David a certificate of
appealability, particularly when the David's life
hangs in the balance. (57) Clemency is an
appropriate remedy.
1.David received representation at trial that
was constitutionally ineffective, but the
federal courts refused to apply mandatory
precedent from the Supreme Court to
evaluate this ground for relief.
In Strickland v. Washington, (58) the United
States Supreme Court established that in order
to succeed on an ineffective assistance of
counsel claim, a defendant must demonstrate
that counsel's performance was deficient and
that the deficient performance prejudiced the
defendant. (59) With regard to the prejudice
element, "[t]he defendant must show that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different." (60)
Accordingly, "a court hearing an ineffectiveness
claim must consider the totality of the evidence
before the judge or jury." (61) The Supreme
Court also established the ineffective assistance
of counsel standard for capital cases:
When a defendant challenges a death sentence
such as the one at issue in this case, the question
is whether there is a reasonable probability that,
absent the errors, the sentencer. . . would have
concluded that the balance of aggravating and
mitigating circumstances did not warrant death.
(62)
This holding contemplated the consideration of
multiple errors in assessing the constitutional
implications of trial counsel's ineffective
assistance. As the United States Court of
Appeals for the Seventh Circuit has explained:
[A]n attorney's individual errors may not,
looking at the trial as a whole, cast doubt on the
reliability of the result, and therefore would not
merit reversal. On the other hand, even if
individual acts or omissions are not so grievous
as to merit a finding of incompetence or
prejudice from incompetence, their cumulative
effect may be substantial enough to meet the
Strickland test. (63)
Consistent with this holding, some federal courts
of appeals have concluded that under Strickland
the cumulative effect of trial counsel's errors can
deprive a defendant of his or her constitutional
right to effective assistance of counsel. (64)
Jurists in other circuits, including the Eighth
Circuit, have found that the cumulative effect of
trial counsel's errors can never deprive a
defendant of a fair trial. (65)
Following this contrary Eighth Circuit precedent,
the federal district court held that trial counsel's
cumulative error was not an appropriate
measure of the constitutional effectiveness of
counsel's assistance. (66) The district court
determined that if each error individually is
insufficiently egregious to violate a defendant's
constitutional rights, then no aggregation of such
errors--no matter how numerous--could rise to
the level of constitutionally defective assistance.
David argued in his certiorari petition that this
was constitutionally incorrect, but the Supreme
Court denied certiorari.
David was prejudiced by the cumulative effect of
his trial counsel's acts and omissions. Such
errors, either individually or in the aggregate,
give rise to a reasonable probability that, absent
such errors by counsel, the jury would have had
a reasonable doubt respecting guilt.
Furthermore, even if the jury found David guilty,
there is a reasonable probability that the jury
would have spared his life.
David's counsel committed numerous other
errors. David's trial counsel delegated much of
the trial preparation to a law student, not
admitted to practice law, let alone qualified to
work on a death penalty case. (Now we know the
law student was laboring under the effects of
untreated chemical dependency.) Trial counsel
also deceived David into believing that he would
call alibi witnesses, and that David would be
allowed to testify to his innocence. Instead, in a
reckless attempt to negate the prosecution's
case in the guilt phase, trial counsel presented
mental health evidence that was gathered at the
last minute for use, if necessary, in David's
penalty phase. (Attachment P at 135-64.)
Counsel also refused to present evidence
demonstrating that David, a man of substantial
girth, would not have even fit under Jimmy
Michaels, Sr.'s car to plant the bomb that killed
the elder Mr. Michaels, as he was described to
have done by the prosecution's witnesses.
Moreover, during the trial, the prosecutor ran
roughshod over David's ineffectual trial counsel,
at one point telling counsel in virtually so many
words to "sit down and shut up," which David's
trial counsel did. (67) Trial counsel simply did not
subject the prosecution's case to a "meaningful
adversarial testing" in either the guilt or
punishment phase of David's trial. (68)
The cumulative effect of these errors created
unreliable proceedings due to a breakdown in
the adversarial process. Accordingly, the
process cannot be trusted to have produced a
just result, particularly where the sentence is
death. (69) Not only could reasonable jurists
differ as to whether any individual error by
counsel deprived David of a fair trial, but
reasonable jurists have differed concerning the
amenability of cumulative error to habeas corpus
scrutiny (as evidenced by the disagreement
between the circuits). Where the courts are split
on an issue, the denial of a certificate of
appealability without consideration of the
contrary conclusions reached by other courts
was error. (70) Accordingly, the district court and
the court of appeals improperly denied David a
certificate of appealability. David appeals to the
Governor as being learned in the law and
constitutionally authorized to correct these
errors, either by commuting
his sentence or appointing a board of inquiry to
examine them.
1.David did not have the full course of
judicial review of his conviction and
sentence which would give the public the
necessary confidence that they were
obtained without constitutional violation.
1.The result of David's state
post-conviction relief proceedings
has been cast into doubt by credible
allegations of conflict of interest.
In his federal litigation and in a second state
habeas corpus proceeding, David's lead
litigation attorneys have relied on Mr. Bassett's
declaration and affidavit as substantiating
David's claims regarding a conflict of interest on
the part of his post-conviction relief counsel,
Richard H. Sindel. (Attachment R at 10-15.)
Specifically, Mr. Bassett states that, at David's
29.15 state post-conviction proceedings, Mr.
Sindel did not ask Mr. Bassett about his history
of chemical dependency, and Mr. Bassett did not
volunteer information about it. (Attachment F, ?
23.) Had Mr. Sindel specifically asked Mr.
Bassett about his chemical dependency, Bassett
would have answered truthfully. (Attachment F,
? 24.) David has pleaded that, absent Mr.
Sindel's conflict of interest, David would have
learned of Mr. Bassett's drug abuse at his 29.15
hearing, and would have been granted relief.
Counsel laboring under a conflict of interest is
worse than no counsel at all. Here, Missouri
provided a petitioner only one forum in which to
raise claims of ineffective assistance of trial
counsel, and David has presented sworn
evidence that his counsel in the proceeding had a
conflict of interest which prevented him from
investigating and cross examining the key player
on the defense team on whether that player had
used heroin or cocaine in a way that adversely
affected David's representation.
If the courts do not wish to provide a forum for
resolving the issues David has sought raised in
state and federal court after receiving the
Bassett affidavit, that does not mean he should
die. It is within the constitutional and statutory
powers of the Governor to commute his sentence
or to appoint a board of inquiry to resolve this
dispute. Clemency should be granted.
1.The Eighth Circuit has denied David
appellate review by taking an
isolated position that the
appeal-limiting provisions of the
Antiterrorism and Effective Death
Penalty Act of 1996 apply
retroactively.
On April 24, 1996--well after David had filed his
pro se petition for a writ of habeas corpus in
1992--President Clinton signed into law the
Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA). AEDPA includes, among
other things, amendments to the general habeas
corpus provisions in chapter 153 of title 28 of the
United States Code. (71) In general, the
amendments to chapter 153, along with
amendments to Federal Rule of Appellate
Procedure 22(b), make it more difficult for
prisoners to obtain appellate consideration of
federal constitutional and statutory claims in
federal courts. Among other things, 28 U.S.C. ß
2253(c)(3) provides that a certificate of
appealability shall indicate which specific issue
or issues satisfy the showing required by
paragraph (2), i.e., "a substantial showing of the
denial of a constitutional right."
In Lindh v. Murphy, 117 S. Ct. 2059 (1997), the
Supreme Court made clear that the new habeas
provisions do not apply to cases that were
pending before the effective date of AEDPA:
The statute reveals Congress' intent to apply the
amendments to chapter 153 only to such cases
as were filed after the statute's enactment
(except where chapter 154 [the special death
penalty provisions not applicable to this case]
otherwise makes select provisions of chapter
153 applicable to pending cases). (72)
Thus, the habeas corpus limitation provisions of
AEDPA do not apply to cases filed before
AEDPA's effective date of April 24, 1996, unless
the text of the statute makes a given provision
applicable to cases pending on the effective
date. (73) Based on Lindh, all cases filed before
the enactment of AEDPA fall under the rules
applicable to certificates of probable cause.
In Tiedeman v. Benson, (74) the Eighth Circuit
held that the new certificate of appealability
provisions set forth in 28 U.S.C. ß 2253(c) should
be applied retroactively to petitions for habeas
corpus filed before AEDPA's enactment. The
Eighth Circuit concluded that Lindh v. Murphy
did not resolve the question of whether the
AEDPA amendments to chapter 153 apply
retroactively, and that the circuit courts may
make this determination on an
amendment-by-amendment basis. 122 F.3d at
520-21. The Eighth Circuit's analysis turns on
the word "generally" in the penultimate
sentence of Lindh. See Lindh, 117 S. Ct. at 2068
("the new provisions of chapter 153 generally
apply only to cases filed after the Act became
effective" (emphasis added)). From this use of
"generally" the Tiedeman court determined that
the Supreme Court intended to say that not all
provisions of Chapter 153 apply only
prospectively. The Eighth Circuit then applied
typical rules of
statutory construction (e.g., distinguishing
between substantive and procedural
amendments) to reach the conclusion that 28
U.S.C. ß 2253(c) should have retroactive
application. (75)
The fundamental message of Lindh is that
courts need not resort to a retroactivity analysis
when congressional intent is clear and
application of the statute in accordance with that
intent would not violate the Constitution. The
Supreme Court's analysis in Lindh undermines
the Tiedeman court's determination that the
"generally" language permits application of
arguably procedural sections such as ß 2253(c)
to pending cases. The word "generally" merely
reflects that fact that one could not baldly assert
that none of chapter 153 amendments could
have retroactive effect, given that ß 2264(b)
expressly provided for such retroactivity in
certain instances. Thus, the most plausible
reading of the Lindh Court's language is that
chapter 153 amendments should not be given
retroactive effect unless expressly provided for
in the text of the Act. (76)
The Tiedeman decision conflicts with the
Supreme Court's decision in Lindh, and the
decisions of every other circuit that has decided
the issue. (77) Based on this overwhelming circuit
consensus as to the meaning of Lindh and the
non-retroactivity of ß 2253(c), it is clear that
AEDPA does not apply to this case, and that the
appropriate vehicle for screening David's case
for appellate review was an application for a
certificate of probable cause.
Under the pre-AEDPA law, no Missouri capital
habeas corpus petitioner was denied an appeal
from the district court's denial of relief. David
has been severely prejudiced by the Eighth
Circuit's formulation and application of an
aberrant rule that has denied him the
opportunity for review by an appellate court
after briefing and argument.
David has not had the level of review we count
on to assure that federal constitutional rights are
respected in capital cases. The federal courts
have failed to follow mandatory Supreme Court
precedent; the Supreme Court has yet either to
correct the Eighth Circuit's isolated position or
to hold that it is, after all, correct and should be
applied nationwide. In light of its own language
in Lindh the latter is an unlikely prospect.
This is not a case in which a petitioner has
received the full course of federal review, and
has lost. It is one in which a federal appellate
court has applied a new rule to David's case
when no other federal appellate court would do
so, and had denied him appellate review of his
federal constitutional claims altogether. Rather
than avoiding the arbitrary infliction of the death
penalty, as appellate proceedings are supposed
to do, the Eighth Circuit's position has added a
new element of arbitrariness. David has
demonstrated the constitutional violations in his
trial and the additional grounds for exercising
clemency several times over. He should not be
executed.
WHEREFORE, the applicant prays the
Governor for his order as aforesaid, either
commuting his sentence from death to life
without parole or appointing a board of inquiry;
or, in the alternative, for a stay pending an
examination of his competency to be executed.
Respectfully submitted,
JOSEPH P. TEASDALE JOHN WILLIAM
SIMON
Teasdale & Lafferty
Suite 323
222 West Gregory Boulevard 200-A East High
Street
Kansas City, Missouri 64114 Jefferson City,
Missouri 65101
(816) 822-0073 (573) 632-6777
FAX(816) 822-0086 FAX (573) 632-6778
Attorneys for Applicant 1. The United States
District Court for the Eastern District of
Missouri appointed former United States
Attorney Barry A. Short of Lewis, Rice &
Fingersh, L.C., to represent the applicant in
seeking relief in federal habeas corpus.
Subsequently the Court appointed Mr. Simon as
co-counsel in the federal litigation. Messrs.
Teasdale and Simon were retained by the
applicant's family to represent him in seeking
executive clemency. Mr. Short and his
colleagues at Lewis, Rice & Fingersh have
provided generous support in the preparation of
this application, and join in it. 2. The original of
this letter has previously been hand-delivered to
the Chief Counsel. A true and correct copy of it
is submitted herewith as Attachment A. 3. An
affidavit of Richard D. Wetzel, Ph.D., is
submitted with the application as Attachment B.
Dr. Wetzel's curriculum vitae is submitted as
Attachment C.
4. See generally Attachment D (affidavit of Carol
Rachid, the oldest surviving member of David's
immediate family). 5. Trial Transcript, Vol. X, at
174. 6. Herrera v. Collins, 506 U.S. 390 (1993).
7. Counsel's thematic discussion of the
Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. 104-132, 110 Stat. 1214
(AEDPA), appears in this application at 50-55. 8.
18 U.S.C. ßß 1961-68. 9. Attachment E at 1
(Affidavit of Gerald Wayne Bassett executed
August 4, 1993). 10. See State v. Anthony
Leisure, 810 S.W.2d 560 (Mo. App. 1991); State
v. Paul Leisure, 772 S.W.2d 674 (Mo. App.
1989). 11. See State v. Leisure, 749 S.W.2d 366
(Mo. banc 1988) (direct appeal); Leisure v.
State, 828 S.W.2d 872 (Mo. banc 1992) (Rule
29.15). 12. State v. Leisure, 749 S.W.2d at
383-85 (Blackmar, J., joined by Welliver, J.,
concurring in
part and dissenting in part). 13. 749 S.W.2d at
383-84 (citing Booth v. Maryland, 482 U.S. 496
(1987)). 14. Id. at 385. 15. Id. at 829. 16. 119
S.Ct. 1939 (1999). 17. Subsequent references in
the text of this subsection I.A. are from the
affidavit of Carol Rachid, the eldest surviving
member of David's immediate family.
Attachment D, ? 6. 18. Counsel submit the
transcript of Dr. Cuneo's direct examination as
Attachment K. 19. Counsel submit Dr. Wetzel's
curriculum vitae as Attachment C. Dr. Cuneo's
basic credentials appear in his direct
examination transcript (Attachment K) at
92-101. 20. Gregg v. Georgia, 428 U.S. 153,
183-86 (1976) (Stewart, J., announcing the
judgment). 21. Id. at 187 (emphasis supplied). 22.
Ford v. Wainwright, 477 U.S. 399, 406-10
(1986).
23. State v. Leisure, 749 S.W.2d 366, 370 (Mo.
banc 1988). 24. See State v. Paul Leisure, 772
S.W.2d 674 (Mo. App. 1989); State v. Anthony
Leisure, 810 S.W.2d 560 (Mo. App. 1991). 25.
See Pilchak v. Camper, 935 F.2d 145 (8th Cir.
1991). In Pilchak, the defendant had received a
life sentence while the more culpable party
received a short prison sentence and had
already completed serving his sentence by the
time the Eighth Circuit heard the appeal of the
district court's grant of a writ of habeas corpus.
The Eighth Circuit affirmed, concluding that
Pilchak's sentence was "fundamentally unjust,"
and stating that elements of equal protection,
substantive due process, and unusual
punishment supported its position. 935 F.2d at
148 & n.5. 26. Persons with I.Q.s less than 75
are presumed to be retarded, according to the
American Association of Mental Retardation.
See Wills v. Texas, 511 U.S. 1097, 1098 n.1
(1994)
(Blackmun, J., dissenting). 27. See State v.
Leisure, 749 S.W.2d at 381-82. (See also
Respondent's Exhibit A, Trial Transcript, Vol.
VII, pp. 134-146.) 28. Respondent's Exhibit A,
Trial Transcript, Vol. VII, pp. 134-46. 29.
Conversely, when multiple people have not been
charged with the same crime, the Missouri
Supreme Court has reviewed sentences in
similar crimes. See, e.g., State v. Mallett, 732
S.W.2d 527, 542-43 (Mo. banc 1987). 30. See
Harmelin v. Michigan, 501 U.S. 957, 995 (1991)
(observing that there is qualitative difference
between death and all other penalties). 31. See
Parker v. Dugger, 498 U.S. 308, 321 (1991). 32.
29.15 Transcript at 35 & 37. 33. 29.15 Transcript
at 164. 34. Counsel submitted the declaration to
the federal court, and the affidavit to the
Missouri Supreme Court in a petition for a writ
of habeas corpus. Counsel submits a true and
correct copy of the Joseph affidavit with this
application as Attachment G. 35. Counsel
submitted the declaration to the federal court,
and the affidavit to the Missouri Supreme Court
in a petition for a writ of habeas corpus. Counsel
submits a true and correct copy of the Coleman
affidavit with this application as Attachment H.
36. Counsel have filed the declaration in the
federal litigation, and submit the original of the
August 16, 1999, Bassett affidavit with this
application as Attachment F. 37. Counsel
provide a transcript of Mr. Bassett's direct
examination as Attachment P. 38. 463 U.S. 880,
893 (1983). 39. Thompson v. Oklahoma, 487
U.S. 815, 821 (1988). 40. Robertson v.
California, 493 U.S. 879 (1989) (Marshall, J.,
joined by Brennan, J., dissenting from denial of
certiorari) (noting that "the States' highest
courts have reached varying conclusions on this
issue"); Miranda v. California, 486 U.S. 1038
(1988) (Marshall, J.,
joined by Brennan, J., dissenting from denial of
certiorari) (arguing that "the admission of
unadjudicated-crimes evidence at the sentencing
phase of a capital trial is difficult to reconcile
with the unique constitutional concern for
reliability in death sentencing proceedings").
State courts have divided on the issue. See Note,
Unreliable and Prejudicial: The Use of
Extraneous Unadjudicated Offenses in the
Penalty Phase of Capital Trials, 93 Colum. L.
Rev. 1249, 1250 (1993) (surveying approaches
taken by various states in determining whether
unadjudicated criminal conduct is admissible in
penalty phase of capital trials). A number of
states have established a per se prohibition on
the introduction of unadjudicated criminal
offenses in the penalty phase of capital trials.
See, e.g., State v. Bobo, 727 S.W.2d 945, 952
(Tenn. 1987) (holding that presumption of
innocence precludes use of unadjudicated
offenses in capital sentencing); State v.
Bartholomew, 683 P.2d 1079, 1086 (Wash. 1984)
(en banc) (same); Cook v. State, 369 So. 2d
1251, 1257 (Ala. 1978) (same); State v.
McCormick, 397 N.E.2d 276, 281 (Ind. 1979)
(same). Other states have either decided to
always permit use of such evidence or permit the
evidence only upon a showing that it is reliable
under varying standards. 93 Colum. L. Rev. at
1267. 41. See, e.g., Tankleff v. Senkowski, 135
F.3d 235 (2d Cir. 1998) (holding that because the
intermediate state court split three-to-two on two
issues and the district court had characterized
another issue as a "close call," "[i]t follows that
[petitioner's] claims are all properly before [the]
court"); Story v. Kindt, 970 F. Supp. 435, 465
(E.D. Va. 1997) ("[T]he issue is one about which
reasonable minds could differ, as demonstrated
by Judge Cowen's dissent from the Court of
Appeals' decision remanding the case to this
Court. The Commonwealth concedes that a
certificate of probable cause should issue,
particularly given Judge Cowen's dissent[.]");
Palmariello v. Superintendent, No. Civ. A.
85-1994-MC, 1988 WL 42393, at *2 (D.
Mass. Apr. 11, 1988) ("In light of the dissenting
opinion filed by a member of the
Commonwealth's highest appellate court and the
nature of the penalty, I hereby grant petitioner's
motion for issuance of a certificate of probable
cause."); see also Lozada v. Deeds, 498 U.S. 430,
432 (1991) (reversing denial of certificate or
probable cause because circuits were in conflict
and court denying appeal had failed to cite or
analyze authority contrary to its holding). 42. See
Thompson v. Oklahoma, 487 U.S. 815, 821
(1988). The photographs in question in
Thomspon showed the condition of the victim of
the crime for which the defendant was on trial.
487 U.S. at 878 (Scalia, J., dissenting)
(describing gun shot wounds in the head and
chest and knife slashes in the head, chest and
abdomen). 43. Id. 44. See Lozada v. Deeds, 498
U.S. at 432 (reversing denial of certificate
because circuits were in conflict and denying
court had failed to cite or analyze contrary
authority).
45. See Booth v. Maryland, 482 U.S. 496 (1987),
overruled on other grounds by Payne v.
Tennessee, 501 U.S. 808 (1991). In Payne v.
Tennessee, the Supreme Court overturned its
ruling in Booth v. Maryland that victim-impact
statements are per se prejudicial in capital
sentencing, but not because it changed its view
on the per se unconstitutionality of evidence that
serves solely to inflame the jurors' passions.
Rather, the Court held that victim-impact
statements are probative of blameworthiness,
and, therefore, not introduced solely to inflame
the jury. Payne v. Tennessee, 501 U.S. at 827.
The Payne Court disagreed with the conclusion
in Booth that victim-impact statements had no
relevance to capital sentencing, but clearly
stated that for evidence to be relevant it must go
to blameworthiness, and evidence that does not
is barred by the Eighth Amendment. In fact, the
Payne Court let stand Booth's determination
that opinions
of the victim's family about the crime, the
defendant and the appropriate sentence are per
se barred by the Eighth Amendment. Payne v.
Tennessee, 501 U.S. at 833 (O'Connor, J.,
concurring), 835 n.1 (Souter, J., concurring). 46.
State v. Leisure, 749 S.W.2d at 383-84
(Blackmar, J., joined by Welliver, J., concurring
in part and dissenting in part). 47. Id. 48.
Caldwell v. Mississippi, 472 U.S. 320, 340
(1985). 49. State v. Leisure, 749 S.W.2d at 379.
50. Id. 51. Beam v. Paskett, 3 F.3d 1301, 1308
(9th Cir. 1993), citing Tison v. Arizona, 481 U.S.
137, 149 (1987). 52. See Booth v. Maryland, 482
U.S. at 503 (holding that an evidentiary error in
capital sentencing constitutes a per se Eighth
Amendment violation when the evidence is
irrelevant
and it "creates a constitutionally unacceptable
risk that the jury may impose the death penalty
in an arbitrary and capricious manner"). 53.
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
54. State v. Leisure, 749 S.W.2d at 384-85
(Blackmar, J., joined by Welliver, J., concurring
in part and dissenting in part). 55. See State v.
Leisure, 749 S.W.2d at 384 (Blackmar, J., joined
by Welliver, J., concurring in part and dissenting
in part) ("Weakest of all is the attempt to
minimize the importance of the pictures because
the jury found sufficient aggravating
circumstances to authorize the death sentence.
The vice of the pictures is in their tendency to
arouse the passions. This vice cannot be erased,
however many statutory circumstances the jury
finds."). 56. See Mendez v. Collins, 947 F.2d 189,
190 (5th Cir. 1991) (considering juror affidavits
submitted in support of federal habeas corpus
petition).
57. See Harmelin v. Michigan, 501 U.S. 957, 995
(1991) (observing that there is qualitative
difference between death and all other
penalties). 58. Strickland v. Washington, 466
U.S. 668 (1984). 59. Id. at 687. 60. Id. at 694. 61.
Id. at 695. 62. Id. at 695. 63. Crisp v. Duckworth,
743 F.2d 580, 583 (7th Cir. 1984). 64. See, e.g.,
Williams v. Washington, 59 F.3d 673, 682 (7th
Cir. 1995) ("In making [a showing of prejudice
caused by ineffective assistance of counsel], a
petitioner may demonstrate that the cumulative
effect of counsel's individual acts or omissions
was substantial enough to meet Strickland's
test."); Rodriguez v. Hoke, 928 F.2d 534, 538 (2d
Cir. 1991) (holding that all of a defendant's
allegations of ineffective assistance should be
reviewed together to give the courts
an opportunity to consider "all the
circumstances and the cumulative effect of all
the claims as a whole"). 65. See, e.g.,
Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th
Cir. 1996); United States v. Gutierrez, 995 F.2d
169, 173 (9th Cir. 1995); Jones v. Stotts, 59 F.3d
143, 147 (10th Cir. 1995). 66. Leisure, 990 F.
Supp. 769, 794-95 (E.D. Mo. 1998) ("Cumulative
error is not grounds for habeas relief because
'each habeas claim must stand or fall on its
own.'") (quoting Girtman v. Lockhart, 942 F.2d
468, 475 (8th Cir. 1991)). 67. The exchange is
reported at pages 181-82 of volume VIII of the
trial transcript. Mr. Zvibleman attempted to
make an objection. The prosecutor responded,
"Mr. Zvibleman, sit down please." He
continued: "Your Honor, I object to this." The
judge overruled his objection. The prosecutor
said again, "Sit down." The judge said,
"Proceed." 68. United States v. Cronic, 466 U.S.
648, 656 (1984)
69. See Strickland, 466 U.S. at 696. 70. See
Lozada v. Deeds, 498 U.S. at 432. 71. AEDPA
also includes a new chapter 154, which creates a
fast track procedure for capital cases in states
that adopt provisions for the appointment of
qualified counsel for capital defendants in the
state courts. Chapter 154 is inapplicable to this
case. 72. 117 S. Ct. at 2063 (emphasis added).
73. Id. 74. 122 F.3d 518 (8th Cir. 1997) 75.
Tiedeman, 122 F.3d at 521. 76. See United
States v. Skandier, 125 F.3d 178, 182 (3d Cir.
1997). 77. See Martin v. Bissonette, 118 F.3d
871, 874 (1st Cir. 1997); Tankleff v. Senkowski,
135 F.3d 235, 241-42 (2d Cir. 1998); United
States v. Skandier, 125 F.3d 178, 181-82 (3d Cir.
1997); Love v.
Morton, 112 F.3d 131, 135 (3d Cir. 1997); Smith
v. Moore, 137 F.3d 808, 812 n.1 (4th Cir. 1998);
Green v. Johnson, 116 F.3d 1115, 1119-20 (5th
Cir. 1997); Norris v. Schotten, 146 F.3d 314,
322-23 (6th Cir. 1998); Rogers v. Howes, 144
F.3d 990, 992 n.2 (6th Cir. 1998); Koo v.
McBride, 124 F.3d 869, 872 & n.3 (7th Cir.
1997); Robbins v. Smith, 125 F.3d 831, 833 (9th
Cir. 1997); Sellers v. Ward, 135 F.3d 1333, 1336
(10th Cir. 1998); United States v. Kunzman, 125
F.3d 1363, 1364 n.2 (10th Cir. 1997); Hardwick
v. Singletary, 122 F.3d 935, 936 (11th Cir.) (per
curiam), modified on other grounds, 126 F.3d
1312 (11th Cir. 1997) (per curiam); Crowell v.
Walsh, 151 F.3d 1050, 1051-52 (D.C. Cir. 1998).