According to an expert who testified during state postconviction relief, petitioner Demarcus A. Sears performs at or below the bottom first percentile in several measures of cognitive functioning and reasoning. The cause of this abnormality appears to be significant frontal lobe brain damage Sears suffered as a child, as well as drug and alcohol abuse in his teens. But because—in the words of the state trial court—his counsel conducted a penalty phase investigation that was "on its face... constitutionally inadequate," App. to Pet. for Cert. 27B, evidence relating to Sears' cognitive impairments and childhood difficulties was not brought to light at the time he was sentenced to death.
After finding constitutionally deficient attorney performance under the framework we set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the state postconviction court found itself unable to assess whether counsel's inadequate investigation might have prejudiced Sears. App. to Pet. for Cert. 29B-30B. Because Sears' counsel did present some mitigation evidence during Sears' penalty phase—but not the significant mitigation evidence a constitutionally adequate investigation would have uncovered—the state court determined it could not speculate as to what the effect of additional evidence would have been. Id., at 30B. Accordingly, it denied Sears postconviction relief. Id., at 34B. Thereafter, the Supreme Court of Georgia summarily denied review of his claims. Id., at 1A.
For the reasons that follow, it is plain from the face of the state court's opinion that it failed to apply the correct prejudice inquiry we have established for evaluating Sears' Sixth Amendment claim. We therefore grant the petition for writ of certiorari, vacate the judgment, and remand for further proceedings not inconsistent with this opinion.
In 1993, a Georgia jury convicted Sears of armed robbery and kidnaping with bodily injury (which also resulted in death), a capital crime under state law. See Ga. Code Ann. § 16-5-40(d)(4) (2006).
The mitigation evidence that emerged during the state postconviction evidentiary hearing, however, demonstrates that Sears was far from "privileged in every way." Sears' home life, while filled with material comfort, was anything but tranquil: His parents had a physically abusive relationship, Exh. 26, 6 Record 1676 (Affidavit of Demetrius A. Sears), and divorced when Sears was young, Exh. 22, id., at 1654 (Affidavit of Virginia Sears Graves); he suffered sexual abuse at the hands of an adolescent male cousin, Exh. 26, id., at 1681-1682; his mother's "favorite word for referring to her sons was `little mother fuckers,'" Exh. 3, 2 Record 265 (Affidavit of Richard G. Dudley, Jr., MD); and his father was "verbally abusive," Exh. 37, 6 Record 1746-1747 (Affidavit of Carol Becci-Youngs),
Environmental factors aside, and more significantly, evidence produced during the state postconviction relief process also revealed that Sears suffered "significant frontal lobe abnormalities." Exh. 1, id., at 147. Two different psychological experts testified that Sears had substantial deficits in mental cognition and reasoning—i.e., "problems with planning, sequencing and impulse control," ibid.—as a result of several serious head injuries he suffered as a child, as well as drug and alcohol abuse. See 1 Record 37-40 (Testimony of Dr. Strickland); id., at 95-96 (Testimony of Dr. Dudley). Regardless of the cause of his brain damage, his scores on at least two standardized assessment tests placed him at or below the first percentile in several categories of cognitive function, "making him among the most impaired individuals in the population in terms of ability to suppress competing impulses and
Whatever concern the dissent has about some of the sources relied upon by Sears' experts—informal personal accounts, see post, at 3269-3271 (opinion of SCALIA, J.)—it does not undermine the well-credentialed expert's assessment,
Further, the fact that Sears' brother is a convicted drug dealer and user, and introduced Sears to a life of crime, 6 Record 1683-1686, actually would have been consistent with a mitigation theory portraying Sears as an individual with diminished judgment and reasoning skills, who may have desired to follow in the footsteps of an older brother who had shut him out of his life. Post, at 3270. And the fact that some of such evidence may have been "hearsay" does not necessarily undermine its value—or its admissibility—for penalty phase purposes.
Because they failed to conduct an adequate mitigation investigation, none of this evidence was known to Sears' trial counsel. It emerged only during state postconviction relief.
Unsurprisingly, the state postconviction trial court concluded that Sears had demonstrated his counsel's penalty phase investigation was constitutionally deficient. See Strickland, 466 U.S., at 688, 104 S.Ct. 2052 (explaining that first inquiry when evaluating Sixth Amendment ineffectiveness claim is whether counsel's representation "fell below an objective standard of reasonableness"). In its view, the cursory nature of counsel's investigation into mitigation evidence—"limited to one day or less, talking to witnesses selected by [Sears'] mother"—was "on its face ... constitutionally inadequate." App. to Pet. for Cert. 27B.
What is surprising, however, is the court's analysis regarding whether counsel's facially inadequate mitigation investigation prejudiced Sears. See Strickland, supra, at 694, 104 S.Ct. 2052. Although the court appears to have stated the proper prejudice standard,
There are two errors in the state court's analysis of Sears' Sixth Amendment claim. First, the court curtailed a more probing prejudice inquiry because it placed undue reliance on the assumed reasonableness of counsel's mitigation theory. The court's determination that counsel had conducted a constitutionally deficient mitigation investigation, should have, at the very least, called into question the reasonableness of this theory. Cf. Wiggins v. Smith, 539 U.S. 510, 522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (explaining that "counsel's failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision ... because counsel had not `fulfill[ed] their obligation to conduct a thorough investigation of the defendant's background'" (quoting Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); alteration in original)). And, more to the point, that a theory might be reasonable, in the abstract, does not obviate the need to analyze whether counsel's failure to conduct an adequate mitigation investigation before arriving at this particular theory prejudiced Sears. The "reasonableness" of counsel's theory was, at this stage in the inquiry, beside the point: Sears might be prejudiced by his counsel's failures, whether his haphazard choice was reasonable or not.
Justice SCALIA chides the Court for concluding that the trial court assumed, rather than found, that counsel's mitigation theory was a reasonable one. Post, at 3267-3268. But our point is that any finding with respect to the reasonableness of the mitigation theory counsel utilized—in this case, family impact—is in tension with the trial court's unambiguous finding that counsel's investigation was itself so unreasonable as to be facially unconstitutional. This point is plain in Williams: We rejected any suggestion that a decision to focus on one potentially reasonable trial strategy—in that case, petitioner's voluntary confession—was "justified by a tactical decision" when "counsel did not fulfill their obligation to conduct a thorough investigation of the defendant's background." 529 U.S., at 396, 120 S.Ct. 1495. A "tactical decision" is a precursor to concluding that counsel has developed a "reasonable" mitigation theory in a particular case.
Second, and more fundamentally, the court failed to apply the proper prejudice
We certainly have never held that counsel's effort to present some mitigation evidence should foreclose an inquiry into whether a facially deficient mitigation investigation might have prejudiced the defendant. To the contrary, we have consistently explained that the Strickland inquiry requires precisely the type of probing and fact-specific analysis that the state trial court failed to undertake below.
That same standard applies—and will necessarily require a court to "speculate" as to the effect of the new evidence—regardless of how much or how little mitigation evidence was presented during the initial
A proper analysis of prejudice under Strickland would have taken into account the newly uncovered evidence of Sears' "significant" mental and psychological impairments, along with the mitigation evidence introduced during Sears' penalty phase trial, to assess whether there is a reasonable probability that Sears would have received a different sentence after a constitutionally sufficient mitigation investigation. See Porter, supra, at ___, 130 S.Ct. at 453-54; Williams, supra, at 397-398, 120 S.Ct. 1495; Strickland, supra, at 694, 104 S.Ct. 2052. It is for the state court—and not for either this Court or even Justice SCALIA—to undertake this reweighing in the first instance.
Accordingly, the petition for certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment below is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE and Justice ALITO would deny the petition for a writ of certiorari.
Justice SCALIA, with whom Justice THOMAS joins, dissenting.
The Court concludes, ante, at 3264-3265, that the Superior Court of Butts County, Georgia, made errors of law in applying the prejudice inquiry for ineffective-assistance-of-counsel claims under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In my view there was no error of law, and the Court today remands for the state court to do what it has already done: find no reasonable likelihood that the mitigation evidence the Court details in its opinion would have persuaded a jury to change its mind about the death sentence for this brutal rape-murder.
The state habeas court responsibly executed the first step in the Strickland analysis, finding that the investigation of mitigation evidence by Sears' trial counsel was deficient performance. The issue here is the second step: whether Sears was prejudiced by that deficiency. As the Court acknowledges, ante, at 3264, the state habeas court correctly stated the prejudice standard under Strickland: The defendant has the burden to establish "a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different." App. to Pet. for Cert. 24B-25B (citing 466 U.S., at 688, 694, 104 S.Ct. 2052). "When applied to the sentencing phase of death penalty trials," that means "a reasonable probability that, absent [counsel's] errors, the sentencer would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death." App. to Pet. for Cert. 25B-26B.
The Court today concludes that there were two errors in the application of that proper standard. First, it reasons that the court erroneously "curtailed a more probing prejudice inquiry because it placed undue reliance on the assumed reasonableness of counsel's mitigation theory" at trial. Ante, at 3265. That argument is flawed on several levels. To begin with, the state habeas court did not assume trial counsel's mitigation theory was reasonable; it found that it was. It said: "[A]lthough counsel failed to investigate thoroughly, they did develop a reasonable
The Court's argument is also flawed because the habeas court's reasonableness finding did not cause it to "curtai[l]" its prejudice inquiry, or lead to the conclusion that it could "obviate the need to analyze" whether pursuing a different mitigation theory would have made a difference. Ante, at 3265. The reasonableness finding merely meant that the prejudice determination had to be made by asking, not whether the jury's mind would probably have been changed by hearing Sears' new mitigation theory instead of hearing no mitigation theory at all; but rather whether it would probably have been changed by substituting Sears' new mitigation theory for the reasonable mitigation theory that was presented and rejected.
The second, "and more fundamenta[l]," legal error the Court alleges, ante, at 3265-3267, is really encased within the first. The Court claims that the state habeas court "limited the prejudice inquiry under Strickland to cases in which there was only `little or no mitigation evidence' presented." Id., at 10 (quoting App. to Pet. for Cert. 30B). The court erred, we are told, by determining that "present[ation of] some mitigation evidence should foreclose an inquiry into whether" Sears was prejudiced. Ibid. That is not a fair reading of the opinion. The state court did not hold that a defendant could never suffer prejudice whenever his counsel provided any mitigation evidence. Rather, it stated that "[t]his case cannot be fairly compared with those where little or no mitigation evidence is presented and where a reasonable prediction of outcome can be made." App. to Pet. for Cert. 30B (emphasis added). That is absolutely correct.
Since the habeas court made no legal error en route to its Strickland conclusion, the only basis for reversing the judgment here would be disagreement with the conclusion itself: that Sears had not established that his new mitigation theory would probably have caused the jury to impose a life sentence instead of death.
The Court makes no attempt to contradict that conclusion. Doing so would require a fact-intensive inquiry into the 22-volume record to measure the persuasiveness of the evidence supporting Sears' new mitigation theory—an inquiry the Court purports to disavow, ante, at 3267, but nonetheless tendentiously undertakes, ante, at 3262-3264. The reader might think the state habeas court's conclusion highly questionable from the Court's account, which recites as solid all the evidence supporting Sears' new mitigation theory, see ante, at 3262-3264. It is far from solid. Some is likely inadmissible as unreliable hearsay under Georgia law, see Gissendaner v. State, 272 Ga. 704, 714, 532 S.E.2d 677, 688-689 (2000); Gulley v. State, 271 Ga. 337, 347, 519 S.E.2d 655, 664 (1999)—such as much of the evidence for the uncorroborated second-hand claim that Sears "suffered sexual abuse at the hands of an adolescent male cousin," ante, at 3262.
A jury also would have discredited the psychiatric testimony of Dr. Strickland that "[f]rom an etiological standpoint ... Sears' `history is replete with multiple head trauma, substance abuse and traumatic experiences of the type expected' to lead to these significant [mental] impairments," ante, at 3263 (quoting 2 id., at 150). As already noted, the evidence of brain-damaging trauma is nonexistent. The psychiatric testimony of Dr. Dudley relied upon the self-interested reporting of Sears himself and the testimony of his less-than-trustworthy brother, Demetrius, see, e.g., 1 Record 122, 133. And then there are the unfavorable parts of Dr. Dudley's testimony: Sears is a "narcissis[t]," id., at 135, with a "grandiose" opinion of himself, id., at 98-99; 2 id., at 246. Dr. Dudley's affidavit portrays Sears as arrogant and self-centered, id., at 246, 247, and notes what he termed Sears' "fantastical" boasting of his first sexual experience with a woman at the age of six and his other "innumerable sexual experiences," 1 id., at 98-99, 100; 2 id., at 246-247. It is hard to see how it could be thought probable that Sears' so-called "magical thinking," 1 id., at 84, would have helped his plea for leniency, see ante, at 3263-3264. It seems to me more likely the jury would conclude that Sears' "profoun[d] personality disorder," 1 Record 104, made him exactly the kind of person who would commit heinous crimes in the future.
And some of the evidence the Court recounts is so utterly unlikely to affect a jury's determination that this brutal murder deserved death that its recitation is just plain hilarious. For example, the claim that Sears' father "was `verbally abusive,'" ante, at 3262, resting on nothing more than an art teacher's recollection that Sears' father "severely criticized" him—"and meant it"!—at a conference with the principal concerning his son's poor academic performance, 6 Record 1747; the claim that his father "disciplined Sears with age-inappropriate military-style drills," ante, at 3262, which consisted of positively VonSteubenesque acts such as
While the Court takes pain to describe all the elements of Sears' new mitigation theory, down to the silliest, it does not trouble to describe the brutal circumstances of the crime—which are at least just as relevant to assessing whether the different mitigation theory would probably have altered the sentence. But the jury heard all about them. See Sears v. State, 268 Ga. 759, 759-760, 493 S.E.2d 180, 182 (1997). They heard Sears' confession that he kidnaped, raped, and murdered Gloria Wilbur, a 59-year old wife and mother. Sears, carrying a briefcase containing various instruments of mayhem—brass knuckles, knives, and handcuffs—and his accomplice, Phillip Williams, were surveying a supermarket parking lot on a Sunday evening in October 1990, looking for a car to steal to drive back home to Ohio from Georgia. As the victim was putting her groceries in the trunk of her car, Sears approached, punched her in the face with his brass knuckles, shoved her into the car, and drove to pick up Williams. Sears then handcuffed her and pulled her into the backseat as Williams drove. After they passed into Tennessee, Sears raped her. Later in the evening, after they had crossed into Kentucky, Sears told Williams to stop the car. Sears forced her, still handcuffed, into the woods by the side of the highway as she begged for her life. After throwing her on the ground, he stabbed her in the neck. In his confession he showed no regret or remorse for his heinous crimes.
I do not know how anyone could disagree with the habeas court's conclusion that it is impossible to say that substituting the "deprived-childhood-cum-brain-damage" defense for the "good-middle-class-kid-who-made-a-mistake" defense would probably have produced a different verdict. I respectfully dissent.
"THE COURT: But by taking some history of head injuries, coupled with the results of the tests that you've given, you can comfortably conclude that the results of the tests that you've given were a consequence of frontal lobe head injuries?
"THE WITNESS: Absolutely. And, moreover, Your Honor, the patient has a lesion on the front of his head, which is something I can observe." Id., at 78.