STANLEY A. BOONE, Magistrate Judge.
Petitioner John Michael Beames (hereinafter "Petitioner") is a state prisoner, sentenced to death, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by Harry Simon, Esq., and Matthew Scoble, Esq. of the Office of the Federal Defender.
Respondent Ron Davis (hereinafter "Respondent") is named as warden of San Quentin State Prison. He is represented in this action by Robert Gezi, Esq., and Kevin Quade, Esq. of the Office of the California Attorney General.
Before the Court for a decision is claim 11 which was taken under submission following a limited evidentiary hearing that took place before the undersigned on February 1-3, 2016.
After careful consideration of the parties' briefs and of the state court record as expanded in this proceeding including on evidentiary hearing, the undersigned makes the following findings and recommends that the federal habeas relief be denied as to Petitioner's claim that he received ineffective assistance of counsel as alleged in claim 11.
This factual summary is taken from the California Supreme Court's summary of the facts in its March 22, 2007 opinion.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to judgment of the Superior Court of California, County of Tulare imposing the death sentence.
On January 24, 1994, the District Attorney of Tulare County filed felony murder, torture, child endangerment and sex crime charges against Petitioner and child endangerment charges against McMains arising out of Cassie's death. (CT 597-602.)
On May 24, 1994, counsel Rothbaum, who had been retained by Petitioner's family, replaced Thommen as trial counsel for Petitioner. (CT 8.) Petitioner's written consent to Rothbaum's substitution as his attorney was filed on June 16, 1994. (CT 618.) On May 31, 1994, Rothbaum submitted the competence issue on basis of expert reports that Petitioner was fit to stand trial, whereupon Petitioner was found competent. (CT 10.)
On July 29, 1994, Petitioner was arraigned on the noted charges. He entered a plea of not guilty and denied the special circumstance allegation. (CT 18.) On February 16, 1995, Petitioner's motion to sever his trial from that of Ms. McMains was granted. (CT 37.) On March 2, 1995, the Tulare County District Attorney filed a second amended information in Tulare County Superior Court case number 35201 charging Petitioner with the following: in count 1, murder of Cassie McMains in violation of California Penal Code section 187; in count 2, torture in violation of California Penal Code section 206; and in count 3, felon in possession of a firearm in violation of California Penal Code section 12021. (CT 587-91.)
Count 1 alleged a special circumstance, that the murder of Cassie was committed by Petitioner intentionally and involved the infliction of torture within the meaning of Penal Code section 190.2(a)(18). Count 2 alleged that Petitioner personally inflicted great bodily injury upon Cassie within the meaning of Penal Code section 12022.7(a). Counts 1 and 2 alleged that Petitioner was previously convicted of a serious felony offense within the meaning of Penal Code section 667(a). (
On July 19, 1995, a third amended information was filed correcting the count 2 offense date. (CT 592-96;
Jury trial began on July 31, 1995. (CT 45.) On August 3, 1995, Petitioner admitted the allegations in counts 1 and 2 pertaining to Penal Code sections 667(a), and 1203(e)(4). (CT 48.) Petitioner also withdrew his plea of not guilty and entered a plea of guilty to count 3. (
On August 22, 1995, the jury began its deliberations and that same day found Petitioner guilty of counts 1 and 2. (CT 71-72, 820-21.) The jury found with regard to count 1 that the murder was intentional and involved the infliction of torture. (
The penalty phase began on August 28, 1995. (CT 73.) The jury began deliberations on August 31, 1995. (Doc. No. 18 at 49.) On September 1, 1995, the jury returned a verdict of death. (CT 81-82, 944.)
On October 11, 1995, the court denied Petitioner's motion for a new trial and his motion to modify the verdict. (CT 85-90.) The trial court then pronounced judgment and sentenced Petitioner to death in count 1, and stayed a term of life in prison in count 2. (CT 91-97.) The court also sentenced Petitioner to a prison term of five years for the count 2 enhancement pursuant to Penal Code section 667(a), struck the enhancement pursuant to Penal Code section 12022.7, (
On March 22, 2007, the trial court judgment was affirmed on automatic appeal in Case No. S050455.
On June 7, 2007, Petitioner filed a first state petition for writ of habeas corpus with the California Supreme Court. (Lod. Doc. No. 10.) That petition was denied by the state supreme court on July 28, 2010. (Lod. Doc. No. 14.)
On August 9, 2010, Petitioner initiated these federal proceedings. Petitioner, through counsel, filed his federal petition on July 27, 2011.
On August 2, 2011, the Court found claim 11 to be colorable and directed Respondent to answer that claim, (Doc. No. 37), which Respondent did on August 29, 2011, (Doc. No. 38).
On November 23, 2011, the Court determined that claim 11 had been exhausted. (Doc. No. 48).
On May 17, 2012, the Court found that claims 4, 5, (plus 11), 29, 30, 37, 41 and 43M were exhausted and that claims 1, 2, 6, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 23, 24, 25, 26, 27, 35D, 42 and 49 were unexhausted. (Doc No. 56.) In that same order, the Court directed the parties to brief the merits of claim 11.
On September 14, 2012, Petitioner filed his opening brief on the merits of claim 11. (Doc. 59.) On December 11, 2012, Respondent filed his answering brief on the merits of claim 11. (Doc. No. 64). Petitioner filed a reply to Respondent's brief on March 22, 2013. (Doc. No. 69.)
On October 23, 2013, the Court issued an order granting Petitioner an evidentiary hearing on claim 11, finding that the California Supreme Court's summary denial of that claim was an unreasonable determination of the facts. (Doc. No. 70 at 28:2-5.)
Respondent objected to any proceeding on the mixed petition. Petitioner responded by filing a February 12, 2014 notice with the Court withdrawing the noted unexhausted claims pending before the California Supreme Court in
On December 11, 2014, the Court vacated the evidentiary hearing schedule, with rescheduling to follow the Court's ruling on Respondent's then pending motion to dismiss the mixed petition. (Doc. No. 109.)
On January 28, 2015, the Court ordered the federal petition amended by withdrawal of the noted unexhausted claims. (Doc. No. 112.) On that date, the Court also denied as moot Respondent's motion to dismiss. (
The evidentiary hearing took place February 1-3, 2016. On April 5, 2016, Petitioner filed his post-hearing brief. (Doc. No. 208.) On July 15, 2016, Respondent filed his post-hearing brief. (Doc. No. 215.) On September 13, 2016, Petitioner filed his brief in reply. (Doc. No. 222.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a);
This action was initiated on August 9, 2010. Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply.
Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his claim:
28 U.S.C. § 2254(d);
The Court previously determined that claim 11 passed through the § 2254(d) gateway. (
Here, the rebuttable (by clear and convincing evidence) presumption that the state court factual determinations are correct (
Petitioner alleges that Rothbaum was ineffective at the guilt phase by failing to challenge the prosecution's forensic evidence, resulting in a prejudicially inaccurate picture of the manner and cause of Cassie's death, violating Petitioner's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. (Doc. No. 18 ¶¶ 547-689.)
The Sixth Amendment right to effective assistance of counsel, applicable to the states through the Due Process Clause of the Fourteenth Amendment, applies through the sentencing phase of a trial. U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1;
The source of clearly established federal law for ineffective assistance of counsel claims is
First, the Petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment.
The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that `[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
However,
Second, the petitioner must demonstrate prejudice, that is, he must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different."
"It is not enough `to show that the errors had some conceivable effect on the outcome of the proceeding.'"
In evaluating prejudice, the habeas court must "compare the evidence that actually was presented to the jury with the evidence that might have been presented had counsel acted differently,"
A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies.
Further, because the
In issuing it decision following the limited evidentiary hearing, the Court "reviews de novo the evidence elicited through discovery and at the evidentiary hearing in these proceedings and is no longer constrained by the limitations imposed by § 2254(d)."
On June 7, 2007, Petitioner filed his first habeas corpus petition with California Supreme Court, CSC Case No. S153603. (Lod. Doc. No. 10.) In claim I thereof, Petitioner included the instant (claim 11) allegation that his Sixth Amendment rights were violated by Rothbaum's failure to challenge the prosecution's forensic evidence regarding the manner of Cassie's death.
On July 28, 2010, the first state petition was summarily denied on the merits without explanation or issuance of an order to show cause. (Lod. Doc. 14.)
Additionally, as discussed below certain allegations in claim 11 also were denied by the California Supreme Court on direct appeal.
As a preliminary matter, the Court is unpersuaded by Petitioner's argument that the state supreme court improperly analyzed prejudice by adding to the
At the evidentiary hearing, Petitioner sought to admit evidence that Dr. Dollinger's medical license was the subject of a disciplinary suspension/probation by the Medical Board of California for a period of one year beginning in 2001. (
The basis for the disciplinary action against Dr. Dollinger was pediatric misdiagnoses at five autopsies Dr. Dollinger conducted during January-April 1995, i.e. approximately 12 months after Cassie's autopsy and approximately six months prior to Petitioner's trial. (
Petitioner argued this evidence was relevant to the credibility of Dr. Dollinger's autopsy conclusions in this case. Respondent argues the evidence involved an issue of pathology not relevant in this case.
At the evidentiary hearing, the Court admitted this evidence under Federal Rule of Evidence 703, as bases for expert opinion, but not for the truth of the matter stated, and thereupon denied Petitioner's request to admit the evidence for all purposes, (
Petitioner has not demonstrated that Rothbaum could or should have known of these matters, or of their relevancy to this case. The underlying misdiagnoses appear unrelated to Dr. Dollinger's findings regarding cause of death and contributing factors in this case. The misdiagnoses referred to in the disciplinary report involved an aortic anomaly and cause(s) of death unrelated to the pathology evidence and cause of death theories at issue in this case. Unlike here, in all five of the disciplinary cases, the infants died at less than four months of age. (EH Ex. 186, Ex. 2 (therein) at 52-54.) The immediate cause of death in three of these cases was cardiac failure. (
These misdiagnoses, to the extent they implicate Dr. Dollinger's tissue sampling methodology, appear limited to proper sampling in the coarctation cases. (EH Ex. 186, Ex. 2 (therein) at 55.) To the extent the Medical Board found fault with Dr. Dollinger's failure to assess the extent of the suspected narrowing of the aorta, here Dr. Dollinger did state the amount and nature of the fluid he found in Cassie's abdomen. (
These five autopsies were somewhat remote in time from Petitioner's trial. The five autopsies that were the basis for discipline were performed eleven or more months after Dr. Dollinger performed the autopsy on Cassie. The resulting disciplinary action against Dr. Dollinger was even more remote in time as it was imposed six years after Cassie's autopsy. (
The Court noted in its October 23, 2013 merits order regarding claim 11 that:
(Doc. No. 70 at 22 n.3.) This remains the case. (
It appears that in May of 2004, Dr. Dollinger completed the term of probation imposed in his disciplinary proceeding and his medical license was restored to clear status. (EH Ex. GG.)
The Court is persuaded that to the extent Dr. Dollinger's disciplinary report has relevance in this case, it goes to testing any concerns of Respondent's expert, Dr. Joseph Cohen, in relying upon Dr. Dollinger's autopsy. As discussed,
Petitioner claims Rothbaum was ineffective by failure to investigate and present then available evidence contradicting the prosecution's case, and that this deficiency undermines confidence in the jury's determination. He alleges Rothbaum fell below then prevailing professional norms by failing to (1) investigate and challenge the prosecution's cause of Cassie's death including failure to consult and retain a defense pediatric forensic pathologist regarding development and presentation of an alternative defense that the immediate cause of Cassie's death was neglect; (2) adequately cross-examine the prosecution's medical experts on this subject; (3) request lesser included instructions; and (4) conduct a reasonable investigation with respect to the cause of Cassie's death. (
(Doc. No. 18 ¶ 677.) Had competent defense pediatric forensic evidence been offered as noted,
Petitioner claims Rothbaum's failure to adequately investigate and develop facts relating to the immediate cause of Cassie's death led him to overlook a more plausible defense of death by neglect and present a less probable defense of death by accidental trauma.
However, for the reasons discussed below, Petitioner has not demonstrated that Rothbaum failed to "prompt[ly] investigat[e] . . . the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. . . . 1
The prosecution theory was that Petitioner, a felon with a history of child abuse, intentionally tortured Cassie (by hanging her with a neck ligature and striking or stomping on her) and killed her on January 19, 1994 by a sudden blow to the midsection, lacerating her liver. (
The prosecution presented the testimony of Dr. Armand Dollinger, who performed the autopsy on Cassie. (
Dr. Dollinger concluded the cause of Cassie's death was internal hemorrhage from a transected (i.e., "torn in two") liver caused by a massive blow to her torso. (RT 922, 924-42.) He testified that he had seen this type of injury before and that it required a "tremendous amount of force." (RT 923.)
Dr. Dollinger also found that Cassie had not eaten in 24 hours before her death. (EH Ex. 4 at 11.)
Dr. Dollinger identified a large number of injuries, including broken ribs and pattern burns from the noted heating grate on her hands, feet and buttocks, that in his opinion had been sustained between December 19, 1993 and the date of Cassie's death, January 19, 1994. Specifically, Dr. Dollinger testified at trial that the following injuries had been sustained in the final month of Cassie's life:
(RT 924-42, 960-61;
Dr. Thomas Bennett, a forensic pathologist and expert in child abuse who was then the Iowa state medical examiner, had performed over four thousand forensic autopsies and had previously qualified as an expert in the area of child abuse. (RT 970-73.)
Dr. Bennett testified that an autopsy photo of a mark on Cassie's neck indicated that she had been hung by a "soft" ligature — that she had been hung by her neck for some period of time. (RT 973-74.) He opined that an item of clothing or something flexible could have been used — not surrounding her entire neck. (RT 975-79.) The prosecution used Dr. Bennett's testimony to argue the intent to kill prong of the torture special circumstance. (RT 1348;
Dr. Boyd Stephens, a specialist in pediatric injuries who was then the chief medical examiner for City and County of San Francisco (RT 986-88), reviewed the case including the autopsy report, photographs, and microscopic and slide samples and testified to his opinion that Cassie had suffered torture from the multiple injuries over time. (RT 988-89.)
Dr. Stephens opined that Cassie's burns were intentionally inflicted (RT 989-95), and that the injuries to Cassie's nose and mouth were caused by blunt force trauma (RT 994-95). Dr. Stephens' conclusions were based on review of the autopsy record photographs, microscopic and slide analysis (RT 988), and Cassie's resected anus (RT 989). Dr. Stephens did not examine the body and was not present at the autopsy, (
Dr. Stephens opined that Cassie, based on her injuries, was tortured over a period of time. (RT 989-92.) He opined that her burn injuries were not typical of accidental injury, for example Cassie's legs were splayed open prior to being burned. (RT 991-1003.) He opined that the injuries to her mouth were from blunt force trauma (
Dr. Stephens also took note of Cassie's low body weight and lack of body fat. (RT 996.) He conceded that the injuries around anus were not a result of sexual abuse. (RT 996.)
Petitioner consistently maintained before and during trial that the tool cart kept in Cassie's room accidentally fell on her resulting in her death, notwithstanding his administration of "some CPR." (RT 1141-46.) Petitioner testified at trial that McMains was present immediately after the tool cart allegedly fell on Cassie and that he provided resuscitation. (
McMains's statements and testimony in her separate proceeding are consistent with Petitioner's statements regarding the tool cart accident and subsequent resuscitation efforts, but differ to the extent McMains asserts she was not present during these events.
According to McMains, at 1:00 a.m. on January 19, 1994, the morning the prosecution says Cassie died, she saw that Petitioner had just finished changing Cassie and was putting on her pants (EH Ex. 208 at 1445), as Cassie was lying across Petitioner's lap (
At 8:00 a.m. that same morning, McMains saw Petitioner rocking Cassie, who was covered with a blanket; Petitioner stated Cassie had been sick all night, yelled at McMains to leave the room and slammed the door. (EH Ex. F at 1354-55; EH Ex. 208 at 1454-55.)
McMains left to take Darrian to a previously scheduled doctor's appointment. (
According to McMains's statements to authorities shortly before Cassie's body was found, Petitioner told her only that he administered "mouth to mouth" for several hours; McMains did not mention that Petitioner performed CPR or chest compressions. (EH Ex. F at 1331-32, 1356-57.)
Petitioner testified at his trial that he did not call an ambulance or police because he was not rational (RT 1147-48), and that:
(RT 1149.)
Petitioner was originally represented in the trial court by appointed counsel Donald Thommen ("Thommen"), who initiated the defense investigation. (
In March of 1994, Danny Wells ("Wells"), the investigator for attorney Thommen, also began to investigate the case. Wells reviewed police reports and Petitioner's pre-arrest tape recorded statement and interviewed Petitioner. (
Wells also consulted with Dr. Richard Blak who conducted a psychological (competency) evaluation of Petitioner. (
Upon Rothbaum's substitution into the case on May 24, 1994, attorney Thommen provide him with all the defense case files and briefed him on same. (
Rothbaum for his part testified that he applied for and received state court (Penal Code section 987.9) funds for defense investigators and experts (EHRT 550-51), and that there were no upper limits on the amount of such funding he could have requested (
It appears that Rothbaum's defense team received state funding for continued investigation and preparation of the trial defense including for review of information and discovery provided by the prosecution and Thommen, including as to mental health and pathology experts (Doc. No. 225 at 16-34, 79-80); obtaining mental health interviews by experts; consulting with medical and engineering experts regarding substantiation of Petitioner's statements about the tool cart and heating grate (
Rothbaum also retained neuropsychologist Eugene Couture to assess Petitioner for mental state defenses. (
Cliff Webb ("Webb"), Rothbaum's investigator, worked on this case. (EHRT 551-52, 591, 639-44.) Webb testified at the evidentiary hearing that Rothbaum, consistent with his practice, provided little if any direction on case assignments including in this case (EHRT 641-43); to the point that in Webb's mind Rothbaum had nearly abandoned his practice (EHRT 641-43). However, Webb had worked with Rothbaum on hundreds of other cases (
Webb testified that he typically interviewed potential witnesses; located potential experts; sought out defense evidence; and provided reports on such matters to Rothbaum. (EHRT 553-66, 592.) He did the same in this case. (EHRT 646.) The record reflects that Webb met with Petitioner in jail "a lot" to discuss this case. (EHRT 592, 646.) Webb testified that he read the case file and the discovery; interviewed the percipient witnesses; and obtained the noted tool cart, tools and floor heating grate for forensic testing and later presentation as evidence at the trial. (EHRT 552, 592, 641-48; Doc. No. 225 at 203-34.)
Webb located and in some cases interviewed family, social and criminal history witnesses (Doc. No. 225 at 243-48, 254-55, 261); he reviewed Petitioner's school record, trial file, court files, and law enforcement files; he interviewed Petitioner (repeatedly) and potential witnesses (
Webb researched pathology experts and had a pre-retainer consult with a pathologist in September of 1994. (Doc. 222 at 96.) Notably, Webb testified that Rothbaum would not meet with him to discuss retaining an expert on forensic pathology for the trial. (EHRT 642-44.)
Griffin worked on preparing and presenting the defense in this case. (EHRT 556-57.) Griffin was highly experienced in criminal defense (EHRT 556, 589), having worked with Rothbaum "on and off" for seven or eight years (EH Ex. 226 at 5), including on many capital cases (
Griffin consulted with experts in the case. (
Griffin also testified that she assisted with post-conviction motions in the trial court. (Doc. No. 225 at 270-71.)
Petitioner relies upon the expert opinions of i) Dr. Janice Ophoven, a pediatric forensic pathologist who has conducted numerous autopsies and participated in the care of children and young adults (Doc. No. 18 Ex. 6 at 102; EH Ex. 2 ¶¶ 1-4; EHRT 20-186); and ii) Dr. Robert Bux, a forensic pathologist and chief medical examiner for the County of El Paso, Colorado (EH Ex. 175 ¶¶ 1-7; EHRT 187-331).
These experts opine that Cassie died from chronic neglect (EHRT 71-72, 200, 250-51, 274), resulting in a combination of: (1) dehydration and malnutrition (EHRT 43-46), (2) aspirational early pneumonia with evidence of aspirated vomit (EHRT 53-56, 224-32, 246-47), and (3) bacterial infection of the blood, i.e., sepsis (EHRT 61), likely caused by bacteria from the noted scalp wound (
These experts further opine that the liver laceration was not caused by a mortal blow to Cassie's abdomen (EHRT 70-72, 91-92, 107-08, 167, 219-20, 235-38, 250-52, 274-75, 281, 330-31), but rather was the result of Petitioner's post-mortem resuscitation efforts. They point in support to the absence of red blood cells, fibrin and inflammatory cells in the liver tissue samples taken by Dr. Dollinger. (
Dr. Ophoven goes on to suggest that Cassie and her brother Darrian fit the mold of "meth orphans." (EHRT 33-47, 201.) She suggests that the malnutrition and failure to thrive seen in Darrian (RT 758) and for which Darrian was hospitalized just prior to Cassie's death, also occurred with Cassie (EHRT 199-203, 379, 425-26, 440, 474).
Drs. Ophoven and Bux note the liver tissue samples from the autopsy show no "vital reaction" in the form of "red blood cells, fibrin, or inflammatory cells" responding to the injured area of the liver. (EHRT 70, 91, 167, 219-20, 236-38, 251, 274, 301-02, 331,371, 372, 452, 458, 459.) This suggests to them that the liver damage occurred after Cassie was dead (EHRT 301), because a vital reaction of fibrin deposition should start as soon as eight minutes after injury with inflammatory cells present at the injury site within fifty minutes (EHRT 300). The absence of a vital reaction in Cassie's case, they argue is consistent with a post-mortem liver laceration because a vital reaction would not occur after death. (EHRT 301;
These experts further note the absence of blood visible in the area of the liver laceration, suggesting to them that the injury occurred after death. (EHRT 70-71, 81, 167.)
Drs. Ophoven and Bux opine that the fluid Dr. Dollinger found in Cassie's abdominal cavity may not have been blood hemorrhaged by an ante-mortem liver laceration, but rather fluid other than whole blood. (EHRT 217-18.) They argue, and prosecution habeas expert Dr. Cohen acknowledges that Dr. Dollinger could be criticized for not specifying precisely the means used to measure the approximately 250 milliliters of liquid blood and the approximately 30 grams of clot material he stated was found in Cassie's abdomen. (EH Ex. 4 at 4; EHRT 304, 393-94, 434-39, 500.)
Drs. Ophoven and Bux also suggest that contrary to Dollinger's findings, the liquid in Cassie's abdomen may have been non-blood, such as "ascites" secondary to malnutrition, or decompositional fluid. (EHRT 217). They note in support Dr. Dollinger's failure to perform a hematocrit test for the presence of red blood cells. (EHRT 77, 322-23, 329, 446-47.)
Even if the fluid was blood, Dr. Bux testified that CPR, effectively administered would mechanically pump blood through a liver laceration into the peritoneal cavity. (EHRT 222-224). Dr. Ophoven agreed with Bux in this regard. (EHRT 74.)
Drs. Ophoven and Bux opine that Cassie's liver and rib injuries are consistent with untrained, prolonged, post-mortem CPR by Petitioner. (EHRT 69, 102, 146, 251-52, 274-75.) These experts opine that pediatric liver injuries can occur from CPR (EHRT 69-71, 145-46, 148-50, 214, 221, 427), especially prolonged untrained CPR (EHRT 71, 145, 214, 222; EH Ex. 174 at 60), by an individual such as Petitioner who allegedly was then under the stimulating influence of methamphetamine (EHRT 71, 98-99; RT 1147-50; EH Ex.'s 51, 86, 98, 211), and upon a child such as Cassie who was previously diagnosed with type one osteogenesis imperfecta, a brittle bone disease (EHRT 73, 215).
Specifically, Petitioner alleges that Rothbaum should have investigated evidence that Petitioner may have then been intoxicated with methamphetamine and caused Cassie's abdominal injuries after her death when he performed CPR "for hours" on her; especially so given Cassie's OI (EHRT 36, 141-44, 197-98, which Petitioner contends could have caused her ribs to break more easily than is normally the case (RT 637-38, 692, 819, 1087-94; 1146, 1147, 1150, 1167, 1185, 1191).
Respondent relies upon the expert opinion of forensic pathologist Dr. Cohen, who has performed over 7000 autopsies. (EHRT 332-336.) Dr. Cohen agrees that Cassie was probably malnourished and dehydrated, possibly septic and suffered from aspirational pneumonia; conditions he concedes would have been fatal if left untreated. (EHRT 381-82, 409-10, 382, 460-61, 474-77, 479.)
However, Dr. Cohen concludes that before any of these conditions could have killed Cassie, she was intentionally tortured and then killed by a sudden blow to the midsection, breaking ribs and lacerating her liver resulting in 45% of her total blood volume being lost into her abdomen and fatal hemorrhagic shock. (EHRT 387-401; EH Ex. C at 7-8; EH Ex. D at 2; EHRT 377-78, 493-95; EH Ex.'s C at 5 and D at 2, 5;
Dr. Cohen testified that Cassie's liver was lacerated by a blow to the abdomen, not by CPR. (EHRT 3367-77, 387, 397, 427-28, 532-33.) He points in support to the relatively large volume of blood Dr. Dollinger reported in Cassie's abdomen (EHRT 439-40), and the size of the liver laceration (EHRT 397). Upon considering all of Cassie's noted potentially fatal conditions, Dr. Cohen concluded, as did Dr. Dollinger that Cassie bled to death from the liver laceration. (EHRT 364-400, 531-32; EH Ex. A at 38-39, Ex. C at 7; Ex. D at 4;
Dr. Cohen believes Cassie's heart was pumping when the liver laceration occurred. (
As to the autopsied liver tissue (i.e., histology) analysis, Dr. Cohen testified that a vital reaction would not immediately occur at the liver laceration site (EHRT 228, 302, 372, 490;
Dr. Cohen also suggests that assessing a vital reaction in the liver can be impacted by the generally hemorrhagic appearance of that organ (EHRT 371-72), and the sufficiency of the tissue sampling (EHRT 372-73, 490; EH Ex. 174 at 129). [Dr. Bux seems to agree that a fibrin reaction would take "a while" (EHRT 302), but Dr. Bux disagreed with Dr. Cohen that sampling the liver in areas distal to the laceration would provide relevant results (EHRT 235-36). Dr. Ophoven concurs with Dr. Bux in these regards. (EHRT 78-79, 228).] In any event, Dr. Cohen testified that he did not see evidence of vital reaction in the liver slide histology from Cassie's autopsy. (EHRT 371-72.)
Dr. Cohen opined that the fluid Dr. Dollinger found in Cassie's abdominal cavity was blood hemorrhaged by an ante-mortem liver laceration. He points in support to the lack of liver mortis (i.e., pooling of blood in the liver after death) seen in autopsy photographs; and the quantity of blood and clot material Dr. Dollinger reportedly found in Cassie's abdominal cavity, which as noted Dr. Cohen places at approximately 45% of Cassie's total blood volume by weight. (EHRT 379-401; EH Ex. C at 8.)
Dr. Cohen also opined the liver laceration would have caused Cassie to suffer immediate and substantial pain. (EHRT 391, 401-02, 532-33; EH Ex. D at 5.)
Dr. Cohen testified that in reaching his conclusions, he specifically relied upon the amount of blood and clot material Dr. Dollinger reported finding at autopsy. (EHRT 442.) Dr. Cohen testified that measuring abdominal blood is not tricky. (EHRT 486.) He testified that here, the fluid was blood because it contained clotted material. (EHRT 396, 446.)
In this regard, Dr. Cohen testified that he considered the statements made by Dr. Dollinger's former laboratory assistant, Matthew Bowers ("Bowers"), during a November 19, 2015 interview by Respondent's investigator, Mr. Hernandez. (
Dr. Cohen discounts the possibility that post-mortem CPR caused Cassie's abdominal and liver injuries. (
Dr. Cohen noted a further injury to Cassie's liver, a subcapsular hematoma, i.e. bleeding just under the surface of the liver. (EHRT 367.) He suggests this liver injury occurred prior to death. (EHRT 371, 491-92.) He disagrees with Dr. Ophoven's suggestion that the liver hematoma likely resulted from post-mortem handling. (EHRT 178-79, 184, 371.)
Dr. Cohen also opined that the intestinal gas noted in the autopsy photographs is a product of decomposition. (EHRT 364.) He discounts the suggestion by Petitioner's experts that the gas resulted from Petitioner's alleged efforts at CPR. (
Petitioner claims that Rothbaum unreasonably acquiesced in the prosecution's cause of death, (
Petitioner points to Rothbaum's December 20, 2006 habeas declaration in which Rothbaum concedes that he did not make further forensic investigation; did not retain trial experts; did not investigate the background of prosecution experts; did not consider the possibility that Cassie's rib and liver injuries resulted from Petitioner giving Cassie CPR and Cassie's pre-existing OI; did not consider that Cassie's burn injuries might have occurred when Petitioner allegedly tried to "warm" her blood as part of his alleged efforts at resuscitation; and did not consider the possibility of a cause of death alternative to that found by Dr. Dollinger. (
However, there is no constitutional duty to investigate, but only to provide reasonable representation.
A petitioner must show that counsel was somehow put on notice to investigate a particular matter.
Petitioner's contention (Doc. No. 222 at 8-9) and Rothbaum concession (EHRT 562) that the pathology experts contacted and interviewed by the Thommen and Rothbaum defense teams never personally consulted with Rothbaum, does not alone suggest a deficient investigation on the facts of this case. The failure to consult with an expert is not deficient conduct where, as here, the entirety of the defense investigation made available to Rothbaum, including the preliminary conclusions of Dr. Van Meter, reasonably suggests further consultation is not needed.
For the reasons stated in this memorandum, Rothbaum was reasonable in foregoing further defense investigation. It appears his decision to develop the tool cart defense was reasonably premised in the defense investigation including Petitioner's statements and conduct. This does not appear to be a case where counsel failed to promptly explore all avenues for developing facts relevant to the merits of the case for purposes of the noted
Petitioner claims that a reasonable defense investigation would have resulted in development of an alternative defense that Cassie died from neglect rather than blunt force trauma.
However, the defense team's investigation of the case did not reasonably put Rothbaum on notice that the immediate cause of Cassie's death was other than that consistently stated by Petitioner, accidental trauma.
The record does not suggest that at any point Petitioner told Rothbaum that the tool cart did not fall on Cassie (EHRT 561-65), or that he caused injury to Cassie after her death (
Petitioner, prior to and at trial consistently stated that Cassie was killed accidentally by a falling tool cart. Petitioner repeatedly told Rothbaum that a tool cart fell on Cassie and killed her. (EHRT 552, 598, 607-08, 646;
Specifically, Petitioner testified at trial that he was present when Cassie was killed between 0400 and 0500 on January 19, 1994. (
Petitioner testified that he went to get clean clothes and bedding for Cassie, went to the bathroom and heard a clanging noise and McMains scream "oh fuck, oh fuck." (RT 1145.) He testified that he returned and saw that the tool cart had fallen on Cassie. (
It appears that Petitioner "insisted [to Rothbaum] that a tool cart had fallen on the victim and that her death was accidental." (Doc. No. 18 Ex. 22 at 431.) Petitioner testified that he administered CPR for hours. (RT 818-19, 1146-48;
Petitioner repeatedly and consistently told the same story to defense investigator Webb during their numerous meetings in the jail. (EHRT 598-99, 646; Doc. No. 18 at Ex. 26 at 454.) In this regard, Rothbaum acknowledged he would have been unable to prevent Petitioner from taking the stand to assert this tool cart defense. (EHRT 605.)
Petitioner's argument that he did not insist upon any specific defense, (
Furthermore, the record does not appear to demonstrate that Petitioner ever stated or testified he saw Cassie nonresponsive for any significant time prior to the tool cart falling on her. (
This is significant because the alternative defense presupposes that Cassie was in a reduced state of consciousness, referred to by the experts as an "obtunded" state, prior to her death. (EHRT 492.) Dr. Cohen appears to concede that Cassie may have been obtunded to some extent for up to 12 hours or more prior to her death (EHRT 460-68), and that an injury while obtunded would result in a vital reaction assuming a sufficient time for the vital reaction to occur (EHRT 464-65). However, the record does not appear to demonstrate that Cassie was obtunded to the level of nonresponsiveness prior to the apparent time of death.
Any suggestion by Dr. Ophoven, in support of an alternative defense that Cassie may have died before January 19, 1994, (EHRT 35; EH Ex. 2 at ¶ 15; EH Ex. 91 at ¶ 41), appears to be directly contrary to Petitioner's own testimony, (RT 921, 1147-48). Similarly, Dr. Ophoven's theory that the scalp laceration had been neglected for days allowing a blood borne infection to spread is contrary to Petitioner's testimony where he insists that he first saw this scalp laceration on the day of Cassie's death. (RT 1164-65.)
Petitioner claims the trial defense that the tool cart fell on Cassie is inconsistent with evidence found at the crime scene.
Rothbaum testified that he believed the mechanism of Cassie's death was blunt force trauma to her abdomen. (EHRT 599-601.) Rothbaum called Petitioner to testify at trial because he found Petitioner's consistently asserted tool cart defense at least plausible on the facts of this case (EHRT 599-03), if not entirely persuasive. (EHRT 572, 598, 601, 630.)
The record reflects there was a tool cart with tools at the crime scene and it was heavy. (RT 1044-45, 1054-55; EHRT 592, 627.) Cassie's blood was present on various items at the crime scene. (RT 792-97.) Notably, the alternative theory asserted by Petitioner on habeas that the immediate cause of death was neglect does not appear to account for the crime scene blood evidence.
Although Rothbaum may have felt that a conviction and death sentence were inevitable (EHRT 594), he seemingly was not aware of facts demonstrating that a defense based on Petitioner's version of events involving the falling tool cart was either inconsistent with Dollinger's autopsy, or false (EHRT 601);
Defense investigator Webb stated in his habeas declaration that "I recall early on in the case, I was able to locate the `tool cart' and some of the `tools', which had been removed from the crime scene, and were the items that [Petitioner] said, had accidentally fallen on the child causing her death." (Doc. No. 18 at Ex. 26 at 454; EHRT 592.) Petitioner's testimony at trial was consistent with this theory and he identified the cart in court. (
It appears that Petitioner did not specifically mention the tool cart when on January 19, 1994, he told his sister Tammy about Cassie's death (RT 1305); and that the tool cart was not seen in the crime scene video taken by the police on January 19, 1994 (RT 1341). However, these facts alone do not suggest Rothbaum was unreasonable in presenting the tool cart defense given the noted events surrounding Cassie's death as related by Petitioner, and the evidentiary record discussed
Petitioner points out that a state criminalist testified at trial that the tool cart tested negative for blood and hair. (RT 1347;
Petitioner's testimony that he found Cassie in a "pool of blood" after the cart fell on her (RT 1146), finds some support in the noted blood evidence found at the crime scene including Cassie's baby clothing, sheets, bedding and a wash towel and rag (RT 793-97.) The suggestion by Petitioner's experts Drs. Ophoven and Bux that the tool cart defense was implausible because the crime scene evidence does not suggest a pool of blood, (
Additionally, Dr. Ophoven testified to the scalp wound, an injury possibly from a sharp metal edge in the days before she died (EHRT 59, 133-35); and she noted the possibility of a bloody purge from the nose and mouth (EHRT 95-97) — suggesting a possible basis for the pool of blood. Dr. Cohen also suggested a possible explanation for the blood by noting the multiplicity of pre-mortem injuries Cassie suffered including an inch and a half bruise on the top of her skull with associated bleeding (EHRT 363); injuries he believes were the result of blunt force trauma (
At the end of the day, Rothbaum knew Petitioner's account of Cassie's death and believed Cassie died from blunt force trauma to her abdomen. (EHRT 599-601.) He reasonably believed Petitioner's steadfast assertion of the tool cart defense was plausible on the circumstances facing him and the evidence before him (EHRT 599-603), even though Rothbaum himself may not have been entirely persuaded (EHRT 572, 598-99, 601, 630.) Significantly, Rothbaum acknowledged the risk that would have been inherent in putting on a defense not consistent with defendant's statements and testimony. (EHRT 608.)
Especially so in the absence of facts suggesting any more plausible defense. Rothbaum was unaware of facts, crime scene or otherwise showing the tool cart defense was false. (
Petitioner claims Rothbaum was deficient by failing to investigate and develop Cassie's state of malnutrition and dehydration.
Dr. Dollinger specifically found at autopsy that Cassie had no food in the twenty-four hours prior to her death. (EH Ex. 4 at 11.) The habeas experts, Drs. Ophoven, Bux and Cohen, all seem to agree that at the time of her death, Cassie was malnourished; had ingested no food in the prior twenty-four hours; and was dehydrated. (EHRT 44, 200, 250-51, 274, 381, 410, 474;
However, Rothbaum seems not reasonably chargeable with notice that Cassie suffered from these conditions due to neglect. Rothbaum presumptively was aware of McMains testimony in her prior separate proceeding that from January 3, 1994 until Cassie's death, she (McMains) prepared food for Cassie and Petitioner fed Cassie; McMains did not notice Cassie getting thinner during this period; and during this time Cassie was sick with the flu, throwing up and having diarrhea. (EH Ex. 208 at 1574-76.)
As to fluids, the record does not suggest Cassie was denied fluid intake. For example, Petitioner testified to giving Cassie Kool-Aid the night before her death. (RT 1137.) Her bedding at the crime scene appears to have been stained with vomited cherry Kool-Aid. (RT 1138-40.)
Petitioner claims that Rothbaum was deficient in relying upon Dr. Dollinger's allegedly insufficient autopsy report in developing his trial defense. (EHRT 560-65, 576, 596-97, 618, 629-30.) He points to a variety of areas at autopsy, where Dr. Dollinger allegedly fell short.
However, for the reasons stated, it does not appear that Dr. Dollinger's methods at autopsy were such as to reasonably call into question his findings as to the manner and cause of Cassie's death.
Significantly, Dr. Cohen testified that Dr. Dollinger's autopsy report was "a pretty good report", though it "has its weaknesses." (EHRT 485.) As to these weaknesses, Dr. Cohen acknowledged that Dr. Dollinger erred in finding at autopsy that Cassie was "fairly well nourished." (EHRT 440.) He acknowledged that Dr. Dollinger did not photograph the fluid in Cassie's abdomen. (EHRT 394.) He acknowledged that Dr. Dollinger did not draw vitreous fluid, a practice Dr. Cohen considers to be standard at autopsy. (EHRT 482-83; EH Ex. 174 at 22-23.)
Dr. Cohen nonetheless felt that Dr. Dollinger adequately documented Cassie's injuries and that the autopsy report was sufficient as to the manner and cause of Cassie's death. (EHRT 443.)
Petitioner claims the falling tool cart theory was contrary to Dr. Dollinger's autopsy findings. Petitioner notes that Dr. Dollinger testified that in his opinion the falling cart could not have caused Cassie's lacerated liver because there was no external bruising and injuries consistent with the cart having fallen on her. (RT 1233-48, 1238, 1346-48.)
However, it appears Dr. Dollinger went on to concede during cross-examination that an object could have fallen on Cassie without leaving a mark on her skin, as shown by the following colloquy:
(RT 1238-39;
As noted, the record supports Petitioner keeping tools in the residence. (RT 1044-45, 1054-55.)
Petitioner claims Rothbaum was deficient by failing to investigate and develop evidence of Cassie's pre-existing Osteogensis Imperfecta (hereinafter "OI"), a genetic disorder characterized by bones that break easily .
However, the evidence of Cassie's OI appears somewhat conflicted. Dr. Eleanor Zorn, a genetics specialist, reviewed Cassie's case history and test results and opined that Cassie probably had a mild form of OI. (RT 601, 616, 1090-1100, 1101 1104-1105.) But Dr. Joseph Gerardi, the pediatric orthopedic surgeon who treated Cassie's broken leg seven months before her death, was of the opinion that Cassie may not have had OI at all. (RT 604, 606, 620.) Dr. John Smith, a pediatric radiologist, X-rayed and examined Cassie and opined that Cassie's bones appeared to be of normal density, normal context, and he saw no evidence of any bone disease. (RT 581-83.) Dr. Dollinger testified he found no evidence of OI at autopsy. (RT 943.)
Even if Cassie had OI, Drs. Ophoven and Bux seem to concede she had the least severe form of OI, type one; and they concede that this disorder would not make Cassie more readily disposed to the liver laceration or burn injuries seen here. (EHRT 141-44.) Furthermore, the record is uncertain whether OI could have been a factor in Cassie's multiple abdominal rib fractures. Dr. Cohen noted the possibility that Cassie had type one OI, but opined that with type one, it is uncommon to see multiple fractures. (EHRT 344-45.)
Petitioner claims Rothbaum was deficient by discounting the impact habitual methamphetamine use may have had on Petitioner at the time of Cassie's death and during his alleged resuscitation attempts.
Dr. Ophoven testified that methamphetamine can make people violent and aggressive. (EHRT 99.) But she did not offer anything more than her common sense opinion regarding any effect of methamphetamine on CPR. (EHRT 71, 99.)
At the evidentiary hearing, Rothbaum testified that he knew Petitioner was an habitual methamphetamine user and that methamphetamine can affect the user's ability to accurately perceive events. (EHRT 579.)
However, Petitioner has not pointed to facts in evidence demonstrating that Petitioner was under the influence of methamphetamine at the time Cassie died and when he allegedly attempted to resuscitate her. (EHRT 98-99.) Petitioner testified at trial only that he had done some drugs in the several days leading up to January 18, 1994 (the day before Cassie was killed according to Petitioner's testimony). (RT 1148.) Rothbaum was presumably aware of McMains's testimony in her separate proceeding that Rick Hager dropped off some methamphetamine for Petitioner [on January 19, 1994,] and that she left it siting on a table (EH Ex. 208 at 1518-19), but that Petitioner was not doing drugs at the time Cassie died (
As noted, Drs. Ophoven, Bux and Cohen all appear to agree that to some extent Cassie was malnourished, dehydrated, possibly septic, (EHRT 33, 44-46, 57-61, 100, 133-37, 199-200, 202, 241-51, 379, 381, 410, 425-26, 474-75, 493-95), and showed signed of aspirational pneumonia (EHRT 53-56, 224-32, 382, 443, 460-61, 474-79). They further agree that these conditions, left untreated and absent intervening cause, would ultimately have led to Cassie's death. (EHRT 72, 200, 250-51, 274, 409, 475-96.)
But as discussed,
Notably, Dr. Ophoven concedes that the type of liver injury Cassie suffered, if incurred during her lifetime as found by Dr. Dollinger, and given her contributing conditions, could have quickly caused death. (EHRT 81, 84.)
Furthermore, the alternative cause of death theory asserted on habeas contemplates the abdominal injuries were caused by CPR. Yet Petitioner's experts appear to concede the probability of liver injury from CPR is low. (EHRT 149-150, 292.) Dr. Ophoven testified that based on Dollinger's report, she could not say that any of the anterior rib fractures occurred post-mortem. (EHRT 111.)
Drs. Ophoven and Bux do not appear to suggest that CPR would likely have fractured ribs in Cassie's back. Yet such fractures were noted at autopsy. (
Petitioner claims that Rothbaum was deficient by presenting the tool cart defense at trial. (CT 61, 863; RT 1280-81, 1348.) He argues the tool cart defense was unreasonable and uninformed and Rothbaum would have realized this had he consulted with a defense pathologist.
Petitioner points out that Rothbaum, who concededly had no medical background (EHRT 563), accepted Dr. Dollinger's findings and testimony as true in determining to present the tool cart defense at trial. (EHRT 560-61, 564-65, 576, 597, 618, 629-30). He argues Rothbaum "disregarded [his] professional obligation to investigate critical prosecution evidence."
Petitioner points out that Rothbaum was himself uncertain the tool cart defense would be successful. (EHRT 572, 594, 598, 601, 630.) He points out that this Court, in finding claim 11 colorable stated that "[a]lthough there was some evidence presented which corroborated or was consistent with [Petitioner's] testimony, his account of the fallen tool cart was implausible at best and in light of his prior record, it was unlikely the jury would believe him." (Doc. No. 70 at 16:4-7.)
However, considering the record as now developed and for the same reasons discussed
That the trial defense failed is not alone a basis to find deficient trial strategy.
Petitioner claims that Rothbaum was deficient by failing to consult with a forensic pathologist and thereupon present an alternative defense to the tool cart defense. (EHRT 599-601);
Petitioner alleges that Rothbaum "failed to conduct an investigation sufficient to make an informed judgment as to defense strategy. "
However, in determining whether counsel made reasonable tactical decisions about certain evidence, a court focuses on whether the investigation supporting counsel's decision to introduce or omit certain evidence was itself reasonable.
Here, Rothbaum's decision to present the tool cart defense was supported by a reasonable defense investigation. Dr. Dollinger's autopsy findings that the cause of death was "exsanguination; transecting laceration of the liver; blunt force trauma" with contributing conditions of "multiple contusions, abrasions, lacerations, burns and rib fractures of varying age", (
Defense investigator Wells noted in his report regarding a March 31, 1994 interview with pathologist Dr. Van Meter, her preliminary belief — based upon review of Cassie's medical records and the autopsy report of Dr. Dollinger and crime scene and autopsy photographs and the OI laboratory reports — that the liver laceration was not caused by a broken rib, but rather by a blow from a fist, club or punch. (EH Ex. 41.) Dr. Van Meter also suggested Cassie's other injuries were pre-existing, days to weeks old. (
Although
Additionally, Rothbaum presumably would have been aware from Dollinger's autopsy report that Cassie had not eaten within 24 hours of her death and that she suffered early aspirational pneumonia, (
Significantly, Rothbaum testified at the evidentiary hearing that it was unimaginable to him, given what he knew at trial, that Cassie's injuries were incurred post-mortem; noting that "the man stuffed the child in a wheel well of the car and took off afterwards, it was just like insane behavior." (EHRT 618, 622.)
Rothbaum also testified at the evidentiary hearing that he felt differing opinions among experts simply tended to cancel out, which was why he tended not to use experts. (EHRT 621.) He testified at the hearing that he put on the best defense he had based on the evidence at trial. (EHRT 624.) He testified that he did not see the need for a forensic expert based on the evidence before him. (
Rothbaum was not required to retain an expert in the absence of reasonable necessity for doing so. It is settled that:
Petitioner's reliance upon
Petitioner claims that Rothbaum was deficient by failing to adequately cross-examine prosecution experts, Drs. Dollinger, Bennett and Stephens, relating to the cause of Cassie's death. He notes the prosecutor emphasized the unrebutted testimony of these trial experts in closing argument. (
The specific matters as to which Petitioner alleges Rothbaum failed to impeach these experts are discussed below.
Petitioner claims that Rothbaum failed to impeach Dr. Dollinger for his failure to follow autopsy procedures appropriate for a child abuse death, as follows. (
Petitioner claims Dr. Dollinger should have been impeached regarding his failure to properly and fully document the injuries that he described in his autopsy report (EHRT 58, 113, 168, 211-13, 310-12, 317, 411-14, 419, 423); take adequate vitreous, blood and tissue samples and x-rays (EHRT 50-53, 384, 393-94, 406, 434-39, 483, 500); document the quantity of abdominal blood that he described (EHRT 62-66, 75, 115-16, 119-20, 122-24, 130, 132, 169, 205-10); and provide documentary evidence supporting wound by wound time estimates of the noted injuries (Doc. No. 222 at 24). Petitioner suggests such impeachment would have called into question the very foundation of the trial defense — that Cassie died from accidental blunt force trauma — and supported an alternative defense that Cassie died from neglect and that her abdominal injuries were caused post-mortem.
As noted, Drs. Ophoven, Bux and Cohen all appear to agree that Dr. Dollinger's autopsy procedure fell short in some respects. Dr. Dollinger apparently did not draw vitreous fluid, (
It appears that Dr. Dollinger also could have taken additional tissue and bone samples and better documented the ones he did take. Doing so could have assisted in determining more precisely the age of Cassie's various multiple contusions, abrasions, lacerations, burns and anterior and posterior rib fractures. In these regards, Dr. Cohen conceded he would have documented the abdominal blood and clot by taking a photograph (EHRT 434), and that Dollinger apparently did not do so (
Nonetheless, it is not clear that Rothbaum could and should have impeached Dr. Dollinger as to manner and cause of death, i.e., exsanguination secondary to the liver laceration.
Of the noted shortcomings, only the measurement and character of abdominal blood appear to implicate Dr. Dollinger's stated cause of death. While Dr. Ophoven testified that the abdominal fluid should have been measured (EHRT 75, 216), Petitioner's other habeas expert, Dr. Bux testified that documenting the fluid and clot measurements, though good practice, was not necessarily required (EHRT 216). Dr. Dollinger, an experienced pathologist did in fact estimate the quantity of fluid. Nothing in the record appears to demonstrate that he erred.
Furthermore, Dr. Dollinger's failure to take the hematocrit of the abdominal fluid (
For the reasons discussed, it is not clear that Dr. Dollinger otherwise could have been successfully impeached as to the liver laceration and manner and cause of death. Significantly, Dr. Cohen testified that Petitioner's proferred alternative cause of death was not the immediate cause of Cassie's death. (EHRT 380-84.) He testified that although the vitreous draw should have been done, it would not have shed light on the manner and immediate cause of Cassie's death. (EHRT 384.)
Petitioner goes on to suggest that Dr. Dollinger's gross anatomic diagnosis of slight cerebral edema (EH Ex. 4 at 4, 11), is a condition consistent with the asserted alternative defense, suggesting malnutrition and dehydration (EHRT 211). However, Dr. Cohen testified that cerebral edema is not necessarily inconsistent with Dollinger's conclusion that the immediate cause of death was exsanguination. (EHRT 385.)
Dr. Dollinger's finding that blunt force trauma was a cause of death (EH Ex. 4 at 12), is not necessarily impeachable with information that CPR might cause liver injuries (EHRT 221). Dr. Cohen testified that it would be very rare for CPR to cause a liver laceration, as suggested by the alternative cause of death theory. (EHRT 387.)
Any attempted impeachment of Dr. Dollinger as to matters other than the manner and cause of death would not likely have furthered the alternative defense. Dr. Dollinger's findings as to the nature and age of Cassie's various multiple contusions, abrasions, lacerations, burns and anterior and posterior rib fractures are not undocumented or devoid of support in the record. Moreover, such attempted impeachment likely would have been unproductive given the defense reasonably presented by Rothbaum at trial.
Additionally, impeaching Dr. Dollinger's credibility as to his autopsy findings other than manner and cause of death would not have furthered the trial defense.
Petitioner claims Dr. Dollinger should have been impeached regarding his findings at autopsy that Cassie was "fairly well nourished"; that her lungs were "unremarkable"; that her pneumonia was not a condition contributing to her death; and that her liver laceration occurred during life and resulted in fatal internal bleeding.
Again, Drs. Ophoven, Bux and Cohen all agree that Cassie was malnourished, dehydrated, possibly septic, and suffered early pneumonia at the time of her death. (EHRT 43, 202, 381-82, 409-10, 382, 460-61, 474-77, 479.) For the reasons stated, Petitioner has not demonstrated the existence of these conditions provides a basis to impeach Dr. Dollinger's conclusion that the immediate cause of Cassie's death was exsanguination secondary to the liver laceration and blunt force trauma.
Moreover, Dr. Dollinger did note Cassie's "early aspiration pneumonia" (EH Ex. 4 at 11), notwithstanding his gross assessment of her lungs as "unremarkable." (EHRT 443.) Petitioner does not show how Dr. Dollinger could have been impeached on grounds pneumonia was the cause of death. (
Petitioner claims that Dr. Dollinger should have been impeached regarding his findings at autopsy that certain of Cassie's burns and other injuries were incurred during her lifetime. Petitioner points out that Dr. Dollinger failed to take x-rays and samples necessary to precisely age Cassie's burns and other injuries. (EHRT 62-66, 115-16, 119-20, 130-32, 205-210.)
However, Petitioner's testimony at trial was consistent with burn injuries suffered while Cassie was alive. Petitioner testified that the burns to Cassie's buttocks were incurred prior to her death — when he saw Cassie seated on the floor heating grate "flopping around" without a diaper. (RT 1129-33.) He testified that he pulled her off the grate by the shirt (
His additional uncontroverted testimony at trial suggests serious burns to Cassie's fingers and toes also occurred during her lifetime — at least one such burn had a bandage on it when Cassie's body was found. (RT 913, 1129-33, 1160, 1172; EHRT 347-48;
Contrary to Petitioner's own trial testimony, Dr. Ophoven testified the burns to Cassie's buttocks and possibly on her inner thighs were incurred post-mortem, perhaps when Petitioner allegedly attempted to "warm [Cassie's] blood" in an effort to resuscitate her. (EHRT 64-65, 122.) Dr. Ophoven concedes some burns to Cassie's feet and toes and right hand/fingers may have occurred prior to death. (EHRT 93-94, 115-21; EH Ex. I at 6.)
Dr. Bux appeared uncertain in these regards when he testified at the evidentiary hearing. (EHRT 299.) He noted insufficient tissue sampling (EHRT 317), and that post-mortem burns are very unusual (EHRT 327.) Significantly, in his declaration he appeared to characterize these burns as apparently healing second degree burns. (EH Ex. K at 7-8.)
As to aging of Cassie's various other injuries, Drs. Ophoven and Bux suggest Dr. Dollinger's deficient sampling and testing prevent precise aging. (EHRT 62-66, 115-16, 119-20, 122-24, 130, 132, 169, 205-10.) Dr. Ophoven testified that Dr. Dollinger's visual aging of injuries (including burn injuries) is inherently uncertain (EHRT 66), and that microscopic examination adds certitude (EHRT 62), and was the standard in 1994 (
Dr. Cohen disagreed, opining Cassie's burns were incurred during her lifetime and that this is apparent even to his naked eye. (
Dr. Cohen further opines that most of the burn and other injuries were the result of inflicted trauma and susceptible to dating consistent with Dollinger's report. (EHRT 346-57, 522-24.) He opines that Dr. Dollinger's dating of these injuries is supported by his autopsy photographs. (Id.)
Notably, nothing in Petitioner's statements and testimony suggests Cassie was burned after he said the tool cart fell on her (RT 1137-50; Doc. No. 18 at Ex. 7), or explains why Cassie suffered burns while her legs were splayed open, and to only on select parts of her body (
Additionally, if Petitioner had burned Cassie's body after her death, he would then have had to dress her in the clothes she had on when her body was recovered from the trunk of his car; nothing in the record, or in logic suggests he did so. (
Rothbaum, for his part testified at the evidentiary hearing that based on the facts before him at trial, it was "inconceivable" to him that the burns were inflicted upon Cassie after her death. (EHRT 561.) Moreover, Rothbaum's cross-examination of Dr. Dollinger regarding the timing of Cassie's injuries reflects as much, and appears largely consistent with Petitioner's noted testimony on such matters and with the trial defense. (
Petitioner claims that Dr. Dollinger should have been impeached regarding his findings at autopsy as to the nature and timing of injuries to Cassie's ribs, and as to whether OI and post-mortem CPR might have been factors.
Petitioner's noted testimony at trial was consistent with rib injuries incurred during Cassie's lifetime. Nonetheless, his experts Drs. Ophoven and Bux appear to suggest otherwise.
Dr. Ophoven, while conceding that Cassie was handled "roughly" during her life (EHRT at 105, 107, 282, 315), suggests that some of her rib injuries may have been the result of brittle bones due to OI (EHRT 73, 106-11, 143, 170, 284, 287), and post-mortem CPR by Petitioner (EHRT 73, 109-14). At the same time, Dr. Ophoven testified that she could not be certain whether Cassie's anterior rib fractures occurred after her death. (EHRT 168.) Dr. Ophoven appears to concede that ribs fractures from pediatric CPR are indeed rare in the medical literature. (EHRT 149-50.)
Dr. Cohen conceded that Dr. Dollinger's work on assessing rib fractures was not excellent, but he found it satisfactory for the purpose of death certification. (EH Ex. 174 at 46.) He testified that OI would be an uncommon and unreasonable explanation for Cassie's rib injuries given their number and location. (EHRT 344, 369-70.) While agreeing with Dr. Ophoven that rib injuries would be more likely in the presence of OI and lay (untrained) CPR (EHRT 377, 421), he opined that pediatric CPR related injuries to the abdomen nonetheless occur with very low frequency (EHRT 374-75, 418-24;
Dr. Cohen discerned in Cassie's case both healing (more than two weeks old) posterior (i.e., back) rib fractures (EHRT 368), and new (inflicted at time of death or minutes before) anterior (chest area) rib fractures (EHRT 368-69, 418).
Dr. Cohen opined that fractures to the back (paraspinal) ribs, such as present in Cassie's case do not typically result from CPR (EHRT 369), but instead can be a hallmark of child abuse (
Dr. Cohen testified Cassie's fractured ribs would have caused Cassie substantial pain. (EHRT 3 at 91.)
Petitioner claims that Dr. Dollinger should have been impeached regarding his findings at autopsy as to the nature and timing of Cassie's apparent bruises, contusions and abrasions. Petitioner alleges that some of these injuries were non-traumatic and occurred post-mortem.
Petitioner's testimony is consistent with these injuries having a traumatic origin during Cassie's lifetime. Significantly, prosecution trial expert, Dr. Stephens, opined the injuries to Cassie's mouth were caused by trauma. (RT 994-95.)
Drs. Ophoven and Bux suggest otherwise by opining that some of Cassie's apparent facial injuries are due to post-mortem insect activity (
Dr. Cohen opines that these injuries were traumatic and incurred during Cassie's lifetime. He testified the abrasions to Cassie's lips and nose were caused by blunt force and likely while Cassie was alive. (EHRT 354-55;
Dr. Cohen further opines that the bruising and abrasions to Cassie's back, buttocks and upper/lower extremities were intentionally inflicted during Cassie's lifetime (EHRT 352-53, 523-24; EH Ex. A at 15); especially so upon consideration of the number and location of Cassie's other injuries (
Petitioner claims that Dr. Dollinger could and should have been impeached with his noted misdiagnoses in other cases which led to a 2001 disciplinary suspension of his medical license. As discussed above, Dr. Dollinger's disciplinary record was admitted in this proceeding solely as a basis for expert opinion.
Petitioner alleges that in forming his opinions, prosecution habeas expert Dr. Cohen (1) was unaware that Dr. Dollinger had misdiagnosed coarctation of the aorta in five other cases around the time of Petitioner's trial, and (2) did not know that Dr. Dollinger's medical license was suspended for a year and that he was placed on probation for three years — such that those facts could cause him concern and might make him hesitate to take Dr. Dollinger's autopsy report in this case at face value. (EH Ex. 174 at 157-58, Doc. 162-20 at 158-59.)
However, Dr. Cohen, a board certified forensic pathologist who has performed approximately 7,000 autopsies, (EHRT 332-41), testified at the evidentiary hearing that he was aware of the misdiagnoses and 2001 discipline (EHRT 519). He testified that though concerning, the misdiagnoses involved a specific practice area, aortic coarctation, not present in this case. (EHRT 485-86.) He testified that this disciplinary information did not change his opinions in this case (EHRT 472, 519, 537-41), or his reliance upon Dr. Dollinger's findings regarding the amount of blood and clot material in Cassie's abdomen (EHRT 387, 393-95, 397-401, 434-35, 439).
Petitioner's suggestion that the coarctation misdiagnoses should be concerning in relation to an alleged failure by Dr. Dollinger to conduct microscopic tissue examination in this case (
Petitioner claims that Rothbaum failed to adequately cross-examine prosecution child abuse expert and forensic pathologist, Dr. Thomas Bennett, on matters relating to the ligature mark on Cassie's neck, and Dr. Bennett's allegedly questionable cause of death findings in other cases.
Petitioner alleges that Rothbaum was deficient by failing to impeach Dr. Bennett on grounds Dr. Bennett relied upon Dr. Dollinger's questionable autopsy report and its supporting materials. (RT 976-85.)
Dr. Bennett testified at Petitioner's trial in support of the torture murder special circumstance. He opined that an autopsy photograph showed that Cassie had been hung by a soft ligature, clothing or other fabric, for some period of time. (RT 971-74.) The prosecutor relied on Dr. Bennett's opinion and Dr. Dollinger's autopsy findings during closing argument, telling the jury that Cassie was hanged by a soft ligature minutes before her death. (RT 1348.)
The record reflects Dr. Dollinger's autopsy report notes that on external examination of Cassie, there was apparent a "minutes old" (EH Ex. 4 at 11), "horizontally oriented linear contusion abrasion pattern on the right side of the neck with a widened area near the midline" (EH Ex. 4 at 2). Dr. Dollinger's microscopic examination of the respiratory system showed "no bruising or injury of the soft issues of the throat. . . ." (
However, Petitioner has not demonstrated on the record a basis for impeaching Dr. Bennett regarding the neck injury. Petitioner has not shown that Dr. Dollinger's autopsy was deficient as to any of his above noted findings regarding the right side neck injury. Drs. Ophoven, Bux and Cohen all appear to characterize the mark on the right side of Cassie's neck fairly consistently with Dr. Dollinger, as a non-strangulating injury. (
Specifically, Drs. Ophoven and Bux opined that the neck mark was non-suffocating and could have resulted from Cassie being picked up by her clothing; Dr. Ophoven also suggested the mark could have been caused by vomit under Cassie's neckline. (EHRT 67; 129-30, 252-53, 297; EH Ex. 91 at ¶¶ 16, 29.)
Dr. Cohen, in his August 21, 2015 report viewed the neck mark as perimortem or post-mortem abrasion only, with no underlying subcutaneous injury. (
Furthermore, Rothbaum does not appear deficient by failing to impeach Dr. Bennett on grounds the other trial experts did not find any strangulation (hanging) type injury. As noted, Dr. Dollinger's report does not demonstrate he found a strangulating injury, rather only that he found no injury to the soft tissues of the throat.
In sum, Petitioner does not point to anything in the record suggesting trial experts Drs. Dollinger and Stephens were qualified to and would have disagreed with Dr. Bennett's opinion regarding a suspension or hanging by soft ligature. (RT 973-74.)
Additionally, Petitioner has not demonstrated Dr. Dollinger's conclusion that Cassie's injuries were "at the hands of another", (
Petitioner alleges that Dr. Bennett should have been impeached because certain of his cause of death opinions in other cases, largely involving shaken baby syndrome, were the subject of a series of newspaper articles suggesting misdiagnoses and pro-prosecution bias. (
However, only one of Petitioner's cited articles was published prior to the conclusion of Petitioner's trial. The sole article that was arguably available to Rothbaum at the time of trial, (
Petitioner's argument that the following cases involving Dr. Bennett could and should have been used for impeachment is similarly unpersuasive:
Petitioner's other cited cases relating to Dr. Bennett appear to center upon allegedly misdiagnosed shaken baby syndrome and/or pro-prosecution bias issues, again issues not present in this case. (EH Ex.'s 187, 190, 196.) Moreover, apart from Dr. Bennett's 1995 deposition in
Petitioner's passing suggestion, relying upon a deposition in
Additionally, Rothbaum was able to essentially make the point of these arguments during cross-examination. Dr. Bennett, in response to Rothbaum's questions testified that in "several" previous cases experts of comparable stature to his had disagreed with his opinions. (RT 981-83.)
Petitioner claims that Rothbaum was deficient by failing to cross-examine Dr. Boyd Stephens on his opinions relative to the timing and cause of Cassie's injuries. As noted, Dr. Stephens provided testimony in support of the torture murder special circumstance. (RT 988-1008.)
Specifically, Petitioner points to a statement he (Petitioner) apparently made during a March 1, 1995 interview with neuropsychologist Dr. Eugene Couture, suggesting at least some of Cassie's burns were post-mortem, i.e., that Petitioner put Cassie's body "by" the floor heater grate to warm her blood during his noted resuscitation efforts. (
However, this statement alone is not necessarily impeaching of Dr. Stephen's opinions that Cassie's burns were incurred intentionally during her lifetime. (RT 989-95.) Dr. Stephens testified that Cassie's burns were not typical (RT 989); that her legs were splayed open prior to being burned (RT 991-1003); that some of the pattern burns on Cassie's anal and genital areas and foot were healing burns (RT 992-93); that burns were incurred to both the palm and back of Cassie's hand (RT 993); and that the burns were to selected areas not typical of an accident (RT 991-97).
As discussed above, Drs. Ophoven, Bux and Cohen disagree whether Cassie's burns or some of them were incurred after her death. This disagreement alone does not appear to suggest Rothbaum was deficient by failing to impeach Dr. Stephens on the issue of aging Cassie's burns and in particular as to alleged post-mortem burns.
As to whether the burns or some of them could have been incurred accidentally, Rothbaum explored this very possibility during his cross-examination and re-cross-examination including with regard to Petitioner's testimony that at one point he had pulled Cassie off the heating grate by her clothing. (RT 997-1002, 1004-1006, 1008.)
Petitioner claims that Rothbaum was deficient by failing to request instructions on lesser included offenses to the (count 1) first degree murder charge. (Doc. No. 18 ¶¶ 631-639.)
The state supreme court rejected this same allegation on direct appeal, as follows:
We find no reversible state or constitutional error at the guilt phase.
Here, for the reasons discussed, Rothbaum reasonably made the tactical decision not to seek lesser included instructions. Doing so would have been inconsistent with Petitioner's noted statements and testimony and the trial defense theory that Cassie's death was accidental trauma occurring when Petitioner was not present. (
Petitioner reaffirmed as much in his January 19, 1994 tape recording, stating that "believe me . . . it was an accident." (CT 1092);
Additionally, as to the instructions given, Petitioner appears to concede that the elements of the charged offenses were specifically defined in the jury instructions on the count for murder and the murder torture special circumstance. (Doc. No. 18 at ¶ 678,
Significantly, Rothbaum did not testify as to his reasoning underlying these matters.
For the reasons stated, Rothbaum's refusal of second degree murder, second degree felony murder, and involuntary manslaughter instruction(s) (
Petitioner claims that the same personal problems that led to Rothbaum's disbarment on November 9, 2001, (six years after Petitioner's trial) prevented his formulation of a strategic defense during Petitioner's trial and resulted in deficient investigation and presentation of the trial defense.
Petitioner points to the death of Rothbaum's father shortly before Rothbaum was appointed as Petitioner's counsel; the failure of Rothbaum's marriage shortly before trial; Rothbaum's regular gambling and trips to Las Vegas; Rothbaum's substance abuse; and Rothbaum's chronic inattention to this practice. (
Petitioner suggests Rothbaum's noted personal problems began around the time of Petitioner's trial (EHRT 639-52), and in combination with Rothbaum's "shoot from the hip" style (EH Ex. 226, Ex. 1 at 1), and the facts of this case, quickly overwhelmed him (EH Ex. 181 ¶ 16; EHRT 545-638). This, according to Petitioner, caused Rothbaum to essentially delegate preparation of Petitioner's trial defense to paralegal Griffin and investigator Webb. (EH Ex. 181 at ¶¶ 10-11, 15; EHRT 645-46; EH Ex. 226 at 8-9, 12-22.)
The record and the discussion above reflect the extent to which Griffin and Webb were involved in the investigation and preparation of Petitioner's defense. Griffin worked on the case both for Rothbaum's predecessor, Mr. Thommen, and Rothbaum. (EH Ex. 226 at 35, 41.) She interviewed Petitioner in jail, made notes of the interviews for counsel and conferred with counsel regarding these interviews. (
Webb testified that Rothbaum's practice style generally and in capital cases was to allow the defense team "quite a bit of autonomy" (EHRT 645), and that this style resulted in at least one acquittal in a capital case (EHRT 646). Both Griffin and Webb suggest Rothbaum's problems caused him to neglect Petitioner's case. (EH Ex. 226 at 21; EHRT 641.) Albeit, Griffin's testimony was somewhat uncertain whether Rothbaum was actively gambling on sports during Petitioner's case. (EH Ex. 226 at 25, 53.)
In any event, for the reasons stated, Petitioner has not demonstrated on the record that Rothbaum's noted problems prevented him from making informed and strategic defense decisions in Petitioner's case. Rothbaum, in his December 20, 2006 habeas declaration, suggested that his personal issues and heavy caseload distracted him from Petitioner's case. (EH Ex. 181 at ¶¶ 4-6, 26-31; EHRT 547-49, 556-69, 635.) However, at the evidentiary hearing, Rothbaum questioned such statements, noting that he was in a fragile mental state in 2006 and motivated primarily to prevent Petitioner's execution. (
Rothbaum testified that around the time of Petitioner's trial he was having marital difficulties and was distressed over the death of his father (EHRT 570-76; EH Ex. 181 at ¶¶ 26-30), and gambled regularly in Las Vegas (EHRT 570, 576). Rothbaum testified he could not recall specifically the extent to which he was going to Las Vegas to gamble during Petitioner's trial.
However, the record reflects that at the time he represented Petitioner, Rothbaum was an experienced criminal defense attorney. He successfully practiced law in Tulare County from 1988-2002 (EHRT 583), winning acquittals prior to and after Petitioner's case in nine other homicide cases (EHRT 581-85;
Rothbaum specifically testified at the evidentiary hearing that any gambling and marital problems he may have had, as well as his caseload in general, did not affect his performance at Petitioner's trial. (EHRT 5 at 67-76, 630-31.) Moreover, it appears that Rothbaum met with Webb and Griffin regarding their respective work on the case with some regularity during the course of preparation of Petitioner's defense and trial. (
It appears that neither Griffin nor Webb informed the court or the state bar of Rothbaum's noted personal problems and both continued to work for him after the conclusion of Petitioner's case. (EHRT 648-49; EH Ex. 226 at 49.)
Although Griffin testified that Rothbaum's reputation with the local bench and bar was variously very good and very bad (EH Ex. 226 at 59-60), Rothbaum apparently continued to receive court-appointed criminal cases after Petitioner's trial (
Significantly, for the reasons stated Rothbaum's trial defense was not objectively unreasonable and Rothbaum was not deficient.
Petitioner claims that absent Rothbaum's allegedly deficient conduct, there is a reasonable probably that at least one juror would have found the prosecution failed to prove Petitioner's guilt of torture murder beyond a reasonable doubt. (Doc. No. 18 at 246:19-23; Doc. No. 222 at 12-26.)
The prejudice determination requires the Court to consider counsel's errors against "the totality of the evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding[s]."
For the reasons that follow, Petitioner has failed to demonstrate prejudice under
The jury was aware of evidence calling into question the credibility of Petitioner's statements that he attempted to resuscitate Cassie with the intent to save her life.
The prosecution introduced evidence of Petitioner's prior criminal convictions.
Petitioner admitted during his testimony at trial that he has a March 25, 1973 conviction for armed robbery; an April 24, 1975 conviction for receiving stolen property; and a June 1, 1983 conviction for second degree burglary. (RT 1135-36, 1153.)
The prosecution introduced evidence of Petitioner's history of abusive behavior as well as his ongoing physical abuse of Cassie continuing to within minutes of her death. (
The prosecution presented evidence of Petitioner's 1983 no contest plea to a felony charge he broke the leg of Ricardo M., the four-year-old child of his former girlfriend Kristi McVey. (RT 711-713, 715, 729-34, 1162, 1182-84; EHRT 151;
Relatedly, McMains stated in testimony in her separate proceeding that Petitioner's mother had warned her about leaving her children with Petitioner, that "you shouldn't leave your kids with my son . . . you just don't know him. . . ." (EH Ex. 208 at 1391;
Significantly, it appears that Dr. Ophoven did not consider the 1983 Ricardo McVey incident when she opined on the alternative defense. (EHRT 150-51.)
Drs. Ophoven and Bux also seem not to have considered statements to law enforcement by Shirlee Riley, McMains's landlady, that McMains once told her Petitioner once put a loaded gun to McMains's head and was going to shoot her in the head if she allowed her parents to enter the home. (EH Ex. 225 at 8.)
Additionally, the prosecution presented testimony about Petitioner's abusive behavior by McMains's neighbors: Royce Hunneman who testified that he heard Petitioner brag to his friends about hitting McMains (RT 762-67); and Ms. Riley, who testified that Petitioner yelled at McMains and that she believed there was abuse happening at McMains's household (RT 771-72).
The Prosecution presented evidence of the multitude of serious and substantially painful injuries Cassie suffered when Petitioner was alone with her.
Shortly after Petitioner, who was neither McMains's spouse nor Cassie's father (EH Ex. 209 at 5-6), came into Cassie's life in late April 1993 (RT 769-70), she began to suffer injuries.
Cassie suffered a broken femur with bruising when she was eight months old. (
However, McMains later acknowledged that around the time that Cassie had suffered the broken leg, Petitioner swung her by the legs and caught her upside down in her car seat. (EH Ex. F at 1371-75.) An event McMains suspected may have caused Cassie's leg injury. (
Petitioner denied breaking Cassie's leg when he was interviewed by an emergency response investigator from child protective services. (EHRT 681-83;
Cassie was reunited with Petitioner and McMains in December 1993. (EH Ex.'s 208 at 1552, 209 at 43.) Petitioner, apparently by his own design became Cassie's sole caretaker. (EH Ex. F at 1441-42; EH Ex. 208 at 1331-32, 1335; EH Ex. 209 at 42-45.) Cassie then sustained a string of injuries when Petitioner was alone with her. She hit her nose and sustained two black eyes. (EH Ex. F at 1447-48.) She suffered the burns discussed above (RT 927-33, 989-94, 999; EH Ex. F at 1379-80; 1416 EH Ex. 208 at 1408; EH Ex. 209 at 50-52), which Petitioner attributed to her having fallen on the floor heating grate (EH Ex. F at 1416; EH Ex. 208 at 1395-98, 1403; EH Ex. 209 at 50-51).
Cassie also suffered additional injuries, some of which seem to have happened within minutes of her death, including bruises and wounds on her head and face (RT 926, 936-42, 952); wounds to her back (RT 938-51); missing hair (EH Ex. F at 1432); and broken ribs front and back (RT 926), some of which were recent and some of which were older healing fractures (RT 925-26, 942, 950-51;
The California Supreme Court described these various injuries as follows:
As Cassie suffered injury upon injury, Petitioner progressively restricted McMains's access to her; ultimately refusing to allow McMains to feed or bathe her own daughter. (EH Ex. 208 at 1347, 1441, 1574.) Petitioner would tell McMains to "[G]et the fuck out of here. What are you doing in here?" (
At one point, when Petitioner became aware of the extent of burns to Cassie's hands and feet and that the back of her hair was singed (EH Ex. 208 at 1396-98;
McMains also noticed that Cassie seemed to fear Petitioner. (EH Ex. 209 at 70-71, 88.) When McMains protested Petitioner's conduct with Cassie, he apparently made threats against McMains's family (EH Ex. F at 1428-30), and told McMains that he would take the children and leave (
Petitioner offered explanations for some of these external injuries. (
Petitioner's sister, Tammy Beames, in her interview with law enforcement, stated that Petitioner was mean in the way he talked to Cassie and in the way he handled her. (EH Ex. 211 at 6.) She stated that Petitioner would not tolerate Cassie crying. (
McMains, in her interviews with law enforcement, admitted she knew Petitioner had been hurting her daughter. (EH Ex. F at 1430.) She stated that she tried to keep Petitioner from yelling at Cassie and hitting her; whereupon Petitioner would get real violent and threaten to leave with Cassie such that she did not call the authorities — she stated she was scared. (EH Ex. F at 1457-58.)
As noted, Dr. Ophoven concedes that some of Cassie's burns were incurred prior to her death (Doc. No. 18 at Ex. 6 at 106-08); that some of the rib fractures were "older, healing injur[ies]" (Doc. No. 18 at Ex. 6 at 107); and that Cassie was "handled roughly during her lifetime" (EHRT 105, 281-82;
Dr. Cohen opines that Cassie suffered ongoing and ultimately fatal child abuse. (EHRT 377-78, 493-95;
The noted substantial evidence suggests Petitioner's intentional ongoing physical abuse of Cassie prior to and proximal to her death and involving substantial pain.
The jury was aware of Petitioner's pretrial statements and testimony noted
On January 19, 1994, after he told McMains that Cassie was dead, Petitioner asked for time before notifying the authorities, stating he "wasn't going to go alive" and that "he was going to hell for what had happened." (RT 820-21);
Petitioner grabbed his gun, some ammunition and his passport and left the crime scene in McMains's car taking Cassie's body with him. (RT 862-72, 893-94, 902-03);
Before he left, Petitioner made the noted tape recording for the police. (RT 819-20.) In it, he takes responsibility for Cassie's accidental death caused by the falling tool cart; this purportedly in order to protect McMains, and because he knew his prior child abuse conviction would not allow him to avoid blame. In the tape recording Petitioner states:
(CT 1092, 1093.)
(RT 1149-50.)
On the morning of January 20, 1994, Sergeant John Zapalac (hereinafter "Zapalac") of the Tulare County Sheriff's Office arrested Petitioner at the residence of David Joiner where Petitioner had fled. (RT 862-63, 872, 893-94, 902-03);
Later, at the Sheriff's Department, Petitioner spontaneously stated, "I was the only one with her. I'm responsible. Put me in jail. Put a .45 to my head." (RT 898);
Petitioner claims that counsel Rothbaum's noted deficiencies kept the jury from learning of the following evidence, discussed above and presented in this proceeding:
However, for the reasons stated, summarized below, this alleged new evidence does not establish any reasonable probability of a different outcome.
The jury was aware that while at home Darrian, Cassie's younger brother, suffered from and shortly before Cassie's death was hospitalized for a failure gain weight and failure to thrive. The jury was aware that Petitioner had used methamphetamine at McMains's home and that Rick Hager had delivered methamphetamine for him there on the morning of January 19, 1994, the apparent date of Cassie's death. Nothing in the evidence before the jury or the newly proffered evidence demonstrates that Petitioner was under the influence of methamphetamine around the time of Cassie's death on January 19, 1994.
The jury was not presented with evidence that Cassie was hung to the point of asphyxiation — failure to present additional evidence to the contrary was harmless.
Petitioner's pre-trial neuropsychological evaluation did not suggest any organic brain condition or impairment. Petitioner's suggestion on habeas that such a condition might have existed is speculative.
The jury was aware that Dr. Zorn, the geneticist on Cassie's case following her femur fracture had determined the possibility Cassie had type one OI.
The jury was aware that Cassie suffered early aspirational pneumonia at the time of her death.
The jury was aware that Cassie had not taken food during the twenty-four hours prior to her death — that she had been sick with the flu.
The jury was aware that Cassie allegedly was non-responsive at the time Petitioner stated he began resuscitation to save her life.
The additional evidence suggesting Cassie was malnourished, dehydrated and possibly septic is not inconsistent with Dr. Dollinger's stated immediate cause of death.
The additional evidence relating to Dr. Dollinger's autopsy methodology does not undermine confidence in the verdict; given Petitioner's pretrial statements and the weight of the noted substantive evidence it is not reasonably likely the result would have been different had the jury considered this additional evidence.
The additional evidence relating to Cassie's conditions of malnutrition, dehydration, sepsis and/or early pneumonia does not undermine confidence in the verdict; given Petitioner's pretrial statements and the weight of the noted substantive evidence, it is not reasonably likely the result would have been different had the jury considered this additional evidence.
Based on the foregoing findings and for all the reasons set forth above, IT IS HEREBY RECOMMENDED that federal habeas relief be DENIED as to claim 11 of the petition filed in this proceeding on July 27, 2011 (Doc. No. 18).
These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1). Within sixty (60) days of service of these findings and recommendations, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within twenty (20) days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
IT IS SO ORDERED.
