John Doe v. Ayers, No. 15-99006 [March 31, 2015]
The court, in a pre-AEDPA case, agreed with the district court that penalty phase trial counsel was ineffective for failing to investigate and present mitigating evidence, but disagreed and found that the ineffectiveness was prejudicial. Counsel had failed to investigate or present evidence of prior sexual abuse in prison, mental illness, neglect and abuse during childhood and substance abuse. "[I]f what counsel knows or should know suggest that further investigation might yield more mitigating evidence, counsel must conduct that investigation." Counsel has a duty to unearth for consideration all relevant mitigation information even if the client refuses to communicate. Also, the failure to prepare penalty phase witnesses violates a critical function of counsel. Finds that trial strategy presumption does not apply when it would contradict defense counsel's testimony rather than filling a gap in memory. Where the jury was utterly unaware of the mitigating evidence at the penalty phase the court concluded that Doe was prejudiced by counsel's failures.
Update: [May 27, 2015] Denied a petition for rehearing and rehearing en banc. Good discussion of the standard necessary to obtain use of a "Doe" pseudonym.