Head Injury at Root of Vacated AZ Execution

(CN) - Vacating a death-row sentence in Arizona, a divided 9th Circuit found Monday that defense counsel neglected to thoroughly investigate whether the inmate was brain damaged a car crash years before killing two men in a drug deal gone bad.

Eric Mann was convicted by a Tucson jury in 1994 for murdering Richard Alberts and Ramon Bazurto over $20,000 worth of cocaine. Mann had gotten away with the shootings since 1989, until his estranged girlfriend, Karen Miller, who had witnessed the crimes and their aftermath, turned on him in exchange for immunity.

Despite several mitigating factors presented during the sentencing phase of the trial, including details about Mann's abuse-plagued childhood and a 1985 head injury resulting from a car accident, the state court found Mann "incapable of remorse" and sentenced him to death for each of the murders.

The Arizona Supreme Court later affirmed the sentence, and the U.S. Supreme Court denied review in 1997. Mann fared no better with his petition for post-conviction relief in state court, in which he alleged that his trial attorney had failed to properly investigate any brain damage that may have resulted from the accident. The court denied the petition and Arizona Supreme Court later denied review.

Mann next took his claims to federal court in Tucson, where in 2009 his petition for habeas corpus relief was denied. Mann then appealed to the 9th Circuit, arguing that his attorney had neglected to call him as a witnesses during the guilt phase of the trial, and had failed to properly investigate the car accident for the sentencing phase.

According to the 9th Circuit's retelling of events, Mann had accidentally rolled his Jeep into a steep canyon in 1985 while driving with a friend's ex-wife and 14-year-old daughter. Both passengers died in the crash and Mann had to be airlifted to the hospital.

It found that Mann's trial counsel had made a proper strategic decision in not calling Mann to the stand, but had also "provided constitutionally deficient representation during the sentencing phase of Mann's trial."

The panel granted Mann's habeas petition 2-1 Monday, "conditional on the state conducting a new sentencing."

"From Mann's handwritten autobiography, counsel learned that Mann had sustained a concussion in his 1985 traffic accident, yet counsel made no effort to obtain medical records or otherwise investigate whether Mann had ever suffered from organic brain damage," Judge Sidney Thomas wrote for the majority. "In declining to pursue that lead, counsel ignored a death penalty expert at the Phoenix Capital Representation Project who advised him to seek neuropsychological testing to detect the existence of organic brain damage, and he disregarded the fact that Arizona courts at the time placed 'significant weight' on brain injuries as mitigating evidence."

The majority concluded that, "had counsel performed adequately, there is a reasonable probability that the sentencers would have concluded that the balance of aggravating and mitigating factors did not warrant death."

Miller, the girlfriend, had also told the court that Mann used the money he earned selling cocaine to pay for his medical bills, and had become moody and depressed after the accident.

Judge Alex Kozinski dissented in part, arguing, among other things, that the majority had overstepped its bounds by considering the merits of Mann's claims instead of deferring to the findings of the state court.

The panel dodged that deference when it found the state court had improperly held Mann to a more-likely-than-not standard for showing prejudice, rather than a "reasonable probability" standard.

Kozinski decried this approach and predicted that the panel would itself be reversed in due time.

"If we are not summarily reversed, Mann's death sentence will surely be reimposed by the state court," Kozinski wrote. "One way or the other, Mann will be executed, if he doesn't die of old age first. But only after he - and the families of the two people he killed 25 years ago - endure what may be decades of further uncertainty. Where's the justice in that?"

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