Next Wednesday, July 18, reckons to be another banner day in the history of capital punishment in America. Sometime between 6 p.m. and midnight, the state of Texas is scheduled to execute a convicted murderer named Yokamon Hearn, a man who has, since early childhood, shown clear and consistent evidence of brain damage.and
There is nothing ambiguous about the crime. It was horrific on every level. Yokamon Hearn was convicted of murdering Joseph Franklin Meziere on March 25, 1998, as part of a carjacking. Hearn and one of his co-defendants, reads a recent defense brief, "shot Mr. Meziere in the head approximately ten times, with the evidence showing that Hearn likely fired first and fired six shots." In 2004, when Hearn faced another execution date, news reports indicated that Hearn had bragged about the crime. "This innocent victim was shot almost for sport," noted one former local prosecutor. So the trial was going to be a slam-dunk and it was. But it was during the penalty phase of the trial, after Hearn had been convicted of capital murder, where today's conflict began. Here is how Hearn's current attorneys put it, the essence of their claim: Yokamon's jury learned about violence, more violence, a history of burglaries, and, in sharp contrast, exceedingly superficial and inaccurate mitigation during his sentencing proceedings. Yokamon's lawyers were the reason the jury learned almost nothing about his life. They failed to conduct a minimally adequate investigation into Yokamon's life history when, had they done so, they would have uncovered a wealth of compelling mitigating evidence, including: 1) evidence that Yokamon's parents were severely impaired throughout his life; 2) that he was the victim of neglect at the hands of his parents; 3) that relatives who were portrayed at trial as unflinchingly committed and capable of caring for Yokamon were not so; 4) that he had a history of mental health problems, including suicidal ideations, as a young child and that his emotional problems stemmed from his parents' inability to parent him; 5) that he was exposed to risk factors commonly associated with brain damage; 6) that Yokamon, in fact, suffered from brain damage; and 7) that he exhibited severe impairments in day-to-day functioning consistent with brain dysfunction. [Numbers added for reference] The failure of Yokamon's [original] lawyers to investigate his life constituted grossly deficient performance. Absent those failures, there is a strong likelihood that one or more jurors would have concluded that Yokamon did not deserve the death penalty. But then it got worse for Hearn because his post-trial lawyer, the one who filed his vital habeas appeal, also did not conduct a detailed investigation into Hearn's life. So what Hearn's attorneys are arguing today is a sort of funky capital case calculus equation: Ineffective Assistance of Counsel Squared. Until March of this year, until that Martinez case that came down from the Supreme Court, such a formula (what's formally called "Successive" or "Second" Petitions) would have given Hearn virtually no chance for relief. In Martinez, in March, the Supreme Court declared by a 7-2 vote that defendants were entitled to have federal courts review their "ineffective assistance of counsel" claims even if those claims were otherwise procedurally barred, if the reason the claims were barred was the ineffectiveness of the lawyers litigating the first round of post-conviction habeas review. Prisoners had a right to effective counsel beyond trial and direct appeal; in other words, a scenario that seems to fit the Hearn case on point. So, back in Texas, emboldened by the Martinez opinion, Hearn's attorneys filed a new request to have a court look at the "mitigating" evidence they had uncovered about their client's life history, including his long history of mental impairment. But when Hearn's lawyers sought relief from a federal judge they were immediately shut down. U.S. District Judge Sidney A. Fitzwater ruled last week that Hearn was not entitled to any further relief. Why? Because the 5th Circuit already had ruled, in a case styled Ibarra v. Thaler, that Texas didn't have to follow the new rule outlined in Martinez. Judge Fitzwater felt duty bound to respect the 5th Circuit's interpretation of the Supreme Court's precedent. Poof! Just like that, and not for the first time, the most stridently conservative federal appeals court in the nation had just defied the justices. What the 5th Circuit did, in Ibarra v. Thaler, was to interpret Martinez so narrowly as to make its holding inapplicable in virtually any other case. Even though the justices in Washington had created an exception to "protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel," the 5th Circuit said that Texas' appellate procedures vitiated the need for such an exception. Take a few minutes to try to read the Ibarra decision. Look at how hard the 5th Circuit's majority had to twist to avoid the Supreme Court's precedent -- and to avoid giving Hearn the relief to which he is entitled.