        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206              2      Smith v. Mitchell                          No. 00-4030
     ELECTRONIC CITATION: 2003 FED App. 0381P (6th Cir.)
                 File Name: 03a0381p.06                      SCHWARTZ, Cincinnati, Ohio, for Appellant. Henry G.
                                                             Appel, Charles L. Wille, ATTORNEY GENERAL’S
                                                             OFFICE OF OHIO, CAPITAL CRIMES SECTION,
UNITED STATES COURT OF APPEALS                               Columbus, Ohio, for Appellee.
               FOR THE SIXTH CIRCUIT                           SUHRHEINRICH, J., delivered the opinion of the court, in
                 _________________                           which BATCHELDER, J., joined. COLE, J. (pp. 62-68),
                                                             delivered a separate opinion concurring in part and dissenting
 WILLIAM H. SMITH,                 X                         in part.
           Petitioner-Appellant, -
                                    -                                             _________________
                                    -  No. 00-4030
            v.                      -                                                 OPINION
                                     >                                            _________________
                                    ,
 BETTY MITCHELL , Warden,           -                          SUHRHEINRICH, Circuit Judge. In April 1988, a
          Respondent-Appellee. -                             unanimous three-judge panel of the Court of Common Pleas,
                                   N                         Hamilton County, sentenced William H. Smith (“Smith” or
       Appeal from the United States District Court          “Petitioner”) to death for the aggravated murder of Mary
      for the Southern District of Ohio at Cincinnati.       Bradford. The Ohio state courts denied all of Smith’s claims
 No. 95-00320—S. Arthur Spiegel, Senior District Judge.      for relief, as did the federal district court on habeas. Smith
                                                             now appeals from the judgment of the district court denying
               Argued: September 18, 2002                    his application for writ of habeas corpus under 28 U.S.C.
                                                             § 2254, challenging both his conviction and sentence. The
          Decided and Filed: October 28, 2003                principal issue on appeal is whether trial counsel were
                                                             ineffective for failing to present mitigating evidence at
 Before: SUHRHEINRICH, BATCHELDER, and COLE,                 sentencing. For the following reasons, we AFFIRM the
                 Circuit Judges.                             judgment of the district court.

                   _________________                                                 I. Background

                        COUNSEL                                                         A. Facts

ARGUED: Laurence E. Komp, Baldwin, Missouri, for              The following facts are taken from the Ohio Supreme
Appellant. Henry G. Appel, ATTORNEY GENERAL’S                Court’s opinion on direct appeal.
OFFICE OF OHIO, CAPITAL CRIMES SECTION,
Columbus, Ohio, for Appellee. ON BRIEF: Laurence E.                On Saturday afternoon, September 26, 1987, Mary
Komp, Baldwin, Missouri, H. Louis Sirkin, Laura A. Abrams,       Virginia Bradford, age forty-seven, visited the Race Inn,
Jennifer M. Kinsley, SIRKIN, PINALES, MEZIBOV &                  a neighborhood bar in Cincinnati, Ohio. While at the
                                                                 Race Inn, she had several beers and met, talked, and

                             1
No. 00-4030                           Smith v. Mitchell        3   4      Smith v. Mitchell                           No. 00-4030

 danced with William H. Smith, appellant, a regular bar                Bradford’s right lung and heart, and wound nine, a four-
 patron. She left the Race Inn around 11:45 p.m.                       inch wound into the sternum and the heart’s right
                                                                       ventricle. Wound seven, a five-inch puncture into the rib
   Around 4:00 p.m., on September 27, Marvin Rhodes,                   and liver, and wounds eight and nine all fractured bony
 Bradford’s boyfriend, stopped by her apartment because                structures. Wound two, four inches in depth, crossed her
 he had not seen her since Friday, September 25. No one                neck from left to right. Wound ten punctured the liver
 answered the doorbell, but Rhodes saw blood near the                  and was no more than four inches in depth. Two
 front door and found Bradford in the bedroom. Feeling                 wounds, one and five, showed no signs of hemorrhage
 her face, he found no life in her body and called the                 and thus were inflicted after death or when the heart was
 police.                                                               not pumping sufficient blood. Wounds one, three, four,
                                                                       and six were superficial. Bradford’s body exhibited no
    Responding police officers found Bradford lying                    other evidence of injury or trauma such as bruises or
 stabbed to death on her bed, nude from the waist down.                defense wounds that would indicate a violent struggle.
 On the floor, near her bed, police found a woman’s pants              All the wounds could have been inflicted by the same,
 and panties, bloodstained and turned inside out, and, on              single edged knife.
 the bed, an oxygen machine used by asthmatics.
 Forensic examination disclosed a .13 blood-alcohol level                On September 28, 1987 homicide detectives went to
 and revealed sperm in her vagina and on her abdomen.                  where Smith lived, the home of Bertha Reid, Smith’s
                                                                       mother, which was about four blocks from Bradford’s
    Near the front door of the apartment, police found a               house. When police arrived, Smith was not at home, and
 chair, with a pool of blood on it, and, on the floor, blood           Reid let the officers in. While at Reid’s home, police
 smears including a bare bloody footprint leading to the               noticed a television set matching the description of one
 bedroom. The apartment was otherwise exceptionally                    of the two sets missing from Bradford’s home.
 neat and clean, with no signs of disorder, disarray, or a             Thereafter, police secured a warrant, found the missing
 struggle, and police found no murder weapon in the                    two televisions in Reid’s home, and seized them.
 apartment. One color television, one black and white
 television, and a stack stereo with two speakers were                    Reid testified that when her son came home around
 missing from Bradford’s apartment.                                    2:00 a.m. on September 27, he did not act unusual, nor
                                                                       did he appear to be drunk, high, or upset. However,
    Dr. Harry J. Bonnell, Chief Deputy Coroner, testified              Smith did carry into Reid’s home the two television sets
 that Bradford died as a result of ten stab wounds to her              in question along with a large stereo system and two
 upper body and consequent loss of blood. She was five                 speakers. Reid asked where he got the televisions and
 feet, three inches tall, weighed one hundred sixteen                  stereo, and Smith replied that his girlfriend Carolyn gave
 pounds, and a portion of her lungs was missing, which                 them to him. Reid did not accept her son’s explanation,
 explained her asthmatic condition. Bonnell numbered                   telling him he would “have to explain to me a little more
 the wounds from one to ten for descriptive purposes (but              about what’s going on.” Later that morning, Smith and
 not indicative of the order in which inflicted). The most             his cousin, Greg took the stereo and two speakers away
 lethal wounds, causing incapacitation within five                     but left the televisions.
 minutes, were wound eight, a four-inch wound into
No. 00-4030                           Smith v. Mitchell        5   6      Smith v. Mitchell                           No. 00-4030

   Reid also showed police clothing that her son had                   took her clothes off and got back on top of her and had
 worn and September 26 and 27, which police seized.                    sex again. Police asked:
 Subsequent forensic analysis revealed that Smith’s shirt
 and shoes bore traces of human blood.                                   “Q. * * * [A]fter you had sex with her the second time,
                                                                       after she was stabbed, then what’d you do?
   On September 28, 1987, police apprehended and took
 Smith to police headquarters for questioning. After                   “A. I gathered up my things together and started taking
 being advised of his rights, Smith agreed to talk to                  her stuff downstairs.
 police. Smith initially asserted that he had driven
 Bradford home that night but had just dropped her off.                “Q. What’d you take out of there?
 He later admitted that he had been in her apartment but
 had left when her boyfriend arrived.                                  “A. Her two TVs and her stereo.”

    Smith told police that he met Bradford at the Race Inn,               Smith said he made four trips carrying her things down
 later drove her and her girlfriend to another bar, and then           to his car and that he took her things in order to sell
 drove Bradford home. While at her house, Smith                        them. Although Smith initially claimed that he did not
 claimed that someone he thought to be Bradford’s                      know whether Bradford had stopped breathing, he later
 boyfriend arrived, and Smith decided to leave quickly.                admitted he decided to have sex with her again because
 After Smith left, he realized that he had left a packet of            “she was still breathing then.” He said that he pulled his
 cocaine, worth $2,500, at Bradford’s house. After he                  penis out as he started to climax and finished ejaculating
 returned, Bradford’s boyfriend and the cocaine were both              on her stomach. He did this because he was thinking
 gone. Smith then talked with Bradford.                                about getting out of the apartment. Smith claimed he
                                                                       threw the knife into the Ohio River and sold Bradford’s
 “ * * * [W]e talked about restitution, you know. She said             stereo in Dayton. However, police recovered her stereo
 she’d give me some of that body. I said okay, it’s good               in Cincinnati. When police interviewed Smith, they also
 enough for me, you know, but then after I got that [had               seized a pair of undershorts from him stained with blood
 sex with her] it wasn’t good enough, you know, so I                   of the same type as Bradford’s.
 asked her like you got any money and stuff, you know.
 She said she ain’t have no money. So we start arguing             State v. Smith, 574 N.E.2d 510, 512-14 (Ohio 1991).
 and next thing you know she slid over to the kitchen and
 got [a] little blade--[small carving knife].”                                          B. Trial Proceedings

    According to Smith, Bradford was stabbed in the                  Smith was indicted on October 21, 1987, on two counts of
 stomach during the ensuing struggle and fell onto a chair.        aggravated murder, pursuant to Ohio Rev. Code § 2903.01(B)
 He removed the knife from her stomach, and she dragged            (Counts I & II), and one count of rape (Count III), and one
 or walked by herself to the bedroom. He recalled                  count of aggravated robbery (Count IV). Counts I and II each
 stabbing her in the neck in the bedroom after she called          contained two death penalty specifications, one alleging
 him a motherfucker, but he did not admit inflicting the           aggravated murder during rape and the other alleging murder
 other stab wounds. When she was lying on the bed, he              during aggravated robbery. Smith initially entered a plea of
No. 00-4030                                    Smith v. Mitchell          7    8     Smith v. Mitchell                                      No. 00-4030

not guilty by reason of insanity as to all charges.1 As a result,
the trial court ordered that Smith be evaluated with respect to
his mental state at the time of the alleged offense. Smith was                     early years. The mother, according to records and collateral
evaluated by three experts, Nancy Schmidtgoessling, Ph.D, a                        reports, has a history of mental illness and was hospitalized at
clinical psychologist of the Court Psychiatric Center, Roger                       times, bearing a diagnosis of “simple schizophrenia.” She was
H. Fisher, Ph.D, a clinical psychologist, and Glenn Weaver,                        abusive and bizarre in her behavior toward the children , for
                                                                                   example, hiding food from them and beating them
M.D., a psychiatrist. Dr. Schmidtgoessling evaluated Smith                         unpredictably. Mr. Smith has five siblings; two of these are
on November 27, 1987, and on December 12, 1987. On                                 known to have had legal contact besides the defendant. In
December 14, 1987, Dr. Schmidtgoessling filed a report with                        summ ary, the family of origin was a rather chaotic,
the court, in which she concluded that Smith currently                             unpredictable environment for the defendant.
showed no sign of major psychological disorder and that he
was sane at the time of the alleged offense.2                                           Mr. Smith was placed in foster homes and at Longview
                                                                                   State Ho spital for a number o f years during his developmental
                                                                                   period. The Juvenile Court record s indicate that M r. Smith was
                                                                                   placed at Longview State Hospital as a dependent child,
    1                                                                              although there are some indications of behavior problems
     Smith was represented by attorneys Dale G. Schmidt and Robert J.              preceding that plac ement, including              firesetting and
Ranz d uring his trial proceedings.                                                incorrigibility. He apparently rema ined there from February,
    2
                                                                                   1996 to August, 19 71 w ith a diagnosis o f emotionally unstable
      Dr. Schmidtgoessling prepared her “Not Guilty by Reason of                   perso nality and b orderline intellectual functioning. Mr. Smith
Insanity Rep ort” (“N GR I”) in D ecem ber 1 987 , four months p rior to the       does not see m pa rticularly unhappy about many of his
mitigation phase. In it she indicated that several members of Smith’s              experiences at Lon gview, describing playing basketball and
family were interviewed, and that she reviewed the following record s:             watching TV . Also, it seems that the adults in his environment
                                                                                   were nicer to him there than in any other environment where he
    Available for review were a social history and psychological                   had lived. H e describes having been prescribed antipsychotic
    evaluation perfo rmed by the H amilton County Department of                    medications and having been given shock treatment while at
    Human Services in 1965 ; a statement of juvenile arrests                       Longview.
    provided by the Hamilton Co unty Juvenile Court; school records
    from Cincinnati Public Schools; and one prior evaluation by the                    In his juvenile years, Mr. Smith had several court contacts.
    Court Psychiatric Center completed in 1976. Records were                       Usually, these were property crimes such as Burglary, Robb ery,
    requested from Longview State Hospital for Mr. Smith’s stay                    and Unauthorized U se of a Motor V ehicle although he also had
    there during his childhood years but we were informed that those               a cou ple of charges reflecting unruliness.
    records were destroyed in 1981. Lastly, records were requested,
    but never received, from the Ad ult Parole Authority.                               Academ ically, Mr. Smith has advanced to appro ximately the
                                                                                   tenth grade.
Based on her review of those records, Dr. Schmidtgoessling reported
Smith’s family and social history as follows:                                          ....

         By way of background, Mr. Smith is the product of an                            In terms o f substance ab use, M r. Smith repo rts beginning to
    unhappy, rather b izarre family. He had little contac t with his               experiment with wine when he was only about fifteen years old.
    biological father, until Mr. Smith was about twelve years old,                 . . . He believes he has been drinking daily since around age
    only becoming close when Mr. Smith was about nineteen. There                   seventeen, averaging a case of beer per day. H e does drink in
    was a stepfather present, who had been hospitalized for                        the morning. He reports he has had some blackouts and it
    psychiatric problems and incarcerated for Rape. It is unclear at               appears that he has an increased tolerance with his extensive use.
    this time what impact these men had on M r. Smith during these                 Mr. Smith recalls beginning to use marijuana when he was about
No. 00-4030                                    Smith v. Mitchell           9   10     Smith v. Mitchell                                    No. 00-4030

                                                                                  In his profile of Smith’s psychological status, Dr. Fisher
                                                                               stated that Smith was “fully oriented, rational and alert. . . .
   eleven years old, having been given a joint by a friend’s mother.           There was no evidence whatsoever of any form of mental
   It seems that he uses marijuana on a fairly regular basis. He               impairment.” Dr. Fisher also stated that “[d]espite his history
   began using coca ine a co uple of years ago. H e reports using this         of hospitalizations, I have no reason to believe this man has
   app roxim ately every other day during this time period . . . .             ever had an emotional illness. I think instead he has had
        Psychological testing was administered as part of the current
                                                                               long-standing characterological problems from early
   evaluation. On the Wechsler Adult Intelligence Scale-Revised,               childhood . . . . ” Regarding criminal responsibility, Dr.
   Mr. Smith obtained a Verbal IQ of 78, a Performance IQ of 84,               Fisher concluded that “Smith was free of any mental or
   and a Full Scale IQ of 78. These scores place M r. Smith in the             emotional disease or defect. I feel he had sufficient judgment
   borderline to low a verage range of functioning. These scores are           to have been able to differentiate legal right from wrong and
   consistent with an IQ established during his stay at Longview               was psychologically sound enough to have been able to
   State Ho spital between 1966 and 1971 . However, records from
   the Hamilton County Department of Hum an Services shows an                  refrain from illicit actions if he had chosen to do so.” Dr.
   IQ established in December, 1965 using the Stanford Benet [sic].            Fisher added that, by his own description, Smith’s behavior
   This score of 101 placed him in the average range of                        “was purposeful and goal-directed. He was provoked to anger
   functioning. . . . The psychological evaluation conducted in                by the loss of his cocaine and acted on that anger by trying to
   1965 by the W elfare Department showed that Mr. Smith was                   make the victim pay him back for what he thought her
   unab le to concentrate and organize himself, and thus was unable
   to sustain his functioning in an unstructured situation. It was felt        boyfriend had stolen.”
   at that time that his reality contact was precarious. He had such
   serious feelings of insecurity that he was unable to relate                   Dr. Weaver performed a psychiatric exam. Dr. Weaver
   satisfactorily despite his need for human relationships, according          concluded that although Smith had extremely limited impulse
   to that psychological evaluation. A strong tendency towards                 controls in past years, he did not possess a mental disease or
   depression and attempts to repress hostile impulses were noted
   at that time. The psychologist felt that Mr. Smith’s thinking at
                                                                               defect, and that he did know the wrongfulness of his conduct.
   times bordered on autistic. When evaluated by the Court                     Smith thereafter withdrew his insanity defense.
   Psychiatric Center in 1976, M r. Smith showed no signs of
   impaired reality testing. He was felt to relate in an appropriate             Trial counsel made initial contact with Jane Core of the
   manner and showed app ropriate modulation of his emotions                   Office of Public Defender (“OPD”), a mitigation specialist,
   during the interview. He was described at that time as suffering            in January 1988. In a letter dated January 21, 1988, Core
   from an adjustment reaction of adolescence and dyssocial
   behavior.

        In conc lusion, M r. Smith currently shows no sign of major                 strong underlying hostility second ary to life experiences. It
   psychological disorder. The available records also suggest an                    seems that in part he attempts to resolve many of his underlying
   absence of substantial psychological disorder such as                            tensions and feelings by using substances. Despite that, he still
   hallucinations, delusions, gross paranoia, mental retardation, or                conveys being a person without significant direction or social
   the like. However, history does suggest that this is a person who                attachm ents.
   has had su bstantial beha vioral prob lems throughout his life. . . .
   Personality wise, we would suggest that Mr. Smith has a number                        W ith respect to the legal question, it is my opinion that Mr.
   of deficits including interpersona l insecurity and sensitivity,                 Smith was sane at the time of the alleged offense. He did not
   impaired emp athy, inad equate co nscience de velopment desp ite                 suffer any substantial psychological disorder that would have
   the ability to verbalize social rules, chronic underlying                        grossly impaired his ability to determine right from wrong or to
   depression secondary to a history of neglect and abuse, and                      restrain his behavior.
No. 00-4030                             Smith v. Mitchell     11    12   Smith v. Mitchell                           No. 00-4030

informed counsel that he would need to request Smith’s              March 31, 1988, counsel informed Core by letter that they
background records. Core also indicated that she had made           would not be needing Liverani, because they had made other
arrangements for OPD investigator Maggie Liverani to                arrangements.
provide assistance, but that Maggie would not be available
until late February. Core stated she planned to meet with             Trial counsel elected instead to request the “friend of the
counsel on February 26.                                             court” appointment of Dr. Schmidtgoessling. See Ohio Rev.
                                                                    Code § 2929.03(D)(1).            Counsel met with Dr.
   In a letter dated February 8, 1988, Core thanked Ranz “for       Schmidtgoessling on March 28, 1988, two weeks prior to the
the materials regarding Mr. Smith,” especially Dr.                  sentencing hearing. Dr. Schmidtgoessling recalled that
Schmidtgoessling’s report, “which certainly indicated a lot of      counsel “could offer no direction to the mitigation,” and that
possible things to work with.” Core told Ranz that he should        counsel seemed unfamiliar with any of the records from the
file a motion asking the court to cover the expenses of             past evaluation of mental competency, juvenile records, or
Liverani’s investigation, since OPD did not have the funds,         Human Services Department records.               Rather, Dr.
and that he would “need to make sure the Court has approved         Schmidtgoessling felt that counsel were more focused on
funds before she begins her investigation at the end of this        winning at the trial level. She agreed to make a copy of all
month.” Finally, Core asked Ranz to forward a list of places        the records for counsel, and to prepare a mitigation report
he had requested records from as well as copies of those            detailing Smith’s past developmental history and describing
records as he received them.                                        his current functioning.
  On February 29, 1988, Core sent a letter to counsel                 Trial began on April 4, 1988. On April 6, 1988, he was
chastising Ranz for not providing the requested materials,          convicted in the Court of Common Pleas of Hamilton County,
which she stated were needed for Liverani to begin her              Ohio, by a unanimous three-judge panel of two counts of
investigation. In that letter Core stated: “Because of these        aggravated murder under Ohio Rev. Code § 2903.01(B) and
factors I do not feel it is possible to conduct an adequate         two death specifications for each count under Ohio Rev. Code
investigation on behalf of your client . . . and regret to inform   § 2929.04(A)(7). He was also convicted of one count of rape
you that neither Ms. Liverani or I will be available to provide     under Ohio Rev. Code § 2907.02, and one count of
assistance in this matter.”                                         aggravated robbery under Ohio Rev. Code § 2911.01. The
                                                                    sentencing hearing began on April 11, 1988, and concluded
   Counsel responded on March 1, 1988, enclosing copies of          on April 14, 1988.
letters sent to which no replies had yet been received, and
referencing Core’s letters of January 21 and February 8,              Dr. Schmidtgoessling was officially appointed as a friend
acknowledging receipt of the reports already sent. Ranz also        of the court on April 6, 1988, following a finding of guilty by
stated that the court had approved payment to Liverani. Ranz        the trial court. Dr. Schmidtgoessling also testified that she
stated that Smith was quite difficult to deal with and was          called Ranz at home on April 10, 1988, because she did not
counsel’s only source of information. Finally, Ranz asked           know if she was supposed to testify at the sentencing hearing.
Core to reconsider her position. On March 11, 1988, Core            According to Dr. Schmidtgoessling, Ranz did not seem to
reiterated her refusal to assist. Core apparently changed her       know what role Dr. Schmidtgoessling would play at the
mind, however, on March 24, 1988, after being apprised that         hearing. She filed her mitigation report on April 11, 1988,
Smith had waived his right to a jury trial. Nonetheless, on         and testified at the mitigation hearing the same day. Given
No. 00-4030                            Smith v. Mitchell    13    14    Smith v. Mitchell                           No. 00-4030

the short period of time, Dr. Schmidtgoessling relied                  “I am very sorry for what did happen to her, and I
primarily on the records she received when preparing the               am very sorry she is dead; but it was beyond my
NGRI report.                                                           control.
                                                                       “I have asked for help before, and did not get it. So
  Five witnesses testified at Smith’s mitigation hearing. Two          it is too late now.
of Smith’s uncles testified briefly. Each characterized Smith          “But again, I ask for help and the mercy of the court.
as a nice person. Smith’s mother, Bertha Dean Reid, read a             “Thank you, members of the panel.”
prepared statement to the court. In her statement Reid told
the court that Smith grew up in various foster homes from the       As noted, Dr. Schmidtgoessling also testified, and her
time he was 11 months until ten years old, and that during        mitigation report was admitted into evidence. The doctor
that time he was abused. She repeatedly stated that she           indicated that she administered the Wechsler Adult
thought Smith was mentally disturbed. She reported that           Intelligence Test, and the MMPI. Regarding his family
Smith stole from her, and that once, when she punished him        background, Dr. Schmidtgoessling told the sentencing panel
for breaking a window, Smith set fire to the kitchen curtains.    that:
She later had him probated to Longview State Hospital. In
Reid’s view, “there is something wrong with William,                   This is a man who came from a background, where his
mentally.”                                                          family members were incapable of caring for him,
                                                                    particularly his mother, who has a history of mental
   Reverend Timothy McDonald, Smith’s former pastor,                illness, as well as herself of physically abusing the
testified via deposition that Smith sought counseling to try to     children.
find a way to deal with his drug and alcohol dependency. On
cross-examination, McDonald acknowledged that Smith’s                 His biological father, as far as I can determine, is
wife came for marriage counseling because there was                 unknown.
violence in the marriage.
                                                                       There was a stepfather, who actually lived with the
 Counsel also read a brief, unsworn statement prepared by           family, who was very abusive, intimidating, a very
Smith:                                                              frightening man, according to the reports that we have,
                                                                    and that he grew up largely for a number of years in
  “Sirs, I have been very truthful in my telling of the facts       either foster homes for three or four years--three years, I
  of what happened.                                                 think in the Longview Children’s Unit. So essentially,
    “I did not go to her apartment for any reason other             his background is one that behaviorally is marked by
    than to get my stuff, and I was invited.                        hyper-activity, some learning problems secondary to
    “We did go to bed together.                                     distractability, poor achievement in school, a lot of
    “She got the knife, and I don’t know what happened              behavior problems, stealing, fighting in school.
    to me. It is a big blur, and I guess I sort of went
    mad.                                                              He was early on described by one psychologist as
    “I didn’t want to hurt her, but what am I to do when            emotionally disturbed; and after another evaluation by a
    faced with something like this?                                 different psychologist was actually placed in the
                                                                    Children’s Unit at Longview, where he in fact did much
No. 00-4030                              Smith v. Mitchell     15   16   Smith v. Mitchell                             No. 00-4030

  better, I think because of the structure there of the school.     find very cold and unacceptable, because of his personality
  The note shows that he got along there fairly well.               style . . . .”
     I think the most important thing from a psychological            Dr. Schmidtgoessling reported from a one-page summary
  point about those early developmental years is the lack of        from Longview Hospital. The hospital diagnosed Smith as
  structure in the home, the lack of close nurturing by             “physically and essentially a normal, black youngster,
  parent figure, or any adult figures, the affect [sic] of . . .    psychologically,” but characterized him as having a “a
  physical abuse and emotional abuse in the family.                 personality-trait disturbance and an emotional, unstable
                                                                    personality.” Dr. Schmidtgoessling stated that this diagnosis
  Dr. Schmidtgoessling noted that she found a history of            coincided with her own, and was consistent with other records
mental illness in the family; both Smith’s mother and Reid,         at that time. She concluded that Smith “certainly did not
the stepfather, had been hospitalized at Longview. Dr.              impress us as mentally ill in any gross fashion.”
Schmidtgoessling next described the testing performed on
Smith. She noted that he had been tested several times. In             On cross-examination, Dr. Schmidtgoessling stated that,
1965, he was found to have an IQ of 101, which is in the            despite Smith’s developmental background and his mother’s
average range. At Longview, however, his IQ test showed             history of mental illness, she found no evidence that Smith
him to be functioning in the borderline range of intelligence.      had ever suffered from a substantial mental illness. In Dr.
Dr. Schmidtgoessling characterized this as “a drastic and           Schmidtgoessling’s view, Smith was capable of appreciating
significant drop,” attributable “only to the behavior problems      the criminality of his acts. She also stated that Smith never
or emotional problems he was experiencing at that time.” Her        showed any remorse for the victim. Lastly, when asked on
testing of him revealed a verbal IQ in the 70s, and a               cross-examination whether she thought the crime was a
performance IQ in the low 80s. She described him “as                conscious choice, or maybe a psychological deficit, she
functioning near average in terms of everyday activities.”          stated:
She summarized his intelligence as “low, average to
borderline range of intellectual funct ioni ng.”                        I certainly think his psychological deficits played into
Schmidtgoessling stated that she did not reach any conclusion         the situation. He told me that he was defending himself
on his character based on the MMPI.                                   against someone who came at him with a knife. In that
                                                                      sense it was a choice. I think that he told me that this
   Dr. Schmidtgoessling also reported some substance abuse.           woman had agreed to the sexual activities and that he had
 She stated that, although she had very little information other      only had sex with her once, and so that was a choice.
than Smith’s self-report, it appeared that he had a long-             But in terms of like his coldness, and stuff, that is part of
standing history of alcohol and marijuana use, and some               him. That is the way he always is.
cocaine use. Dr. Schmidtgoessling indicated that Smith did
not have paranoia, but was very sensitive to being exploited.         As noted, Dr. Schmidtgoessling’s mitigation report was
She stated he “ha[d] personality flaws and defects,” but that       admitted. At the outset, Dr. Schmidtgoessling stated that
she “d[idn’t] think he [was] organically impaired and               “[n]umerous sources of information were used in constructing
defective in that way.” She added that he “lacks empathy,”          this report.” She detailed the following:
and “is inclined to do things to other people that the rest of us
No. 00-4030                         Smith v. Mitchell    17   18       Smith v. Mitchell                                  No. 00-4030

 Mr. Smith was evaluated by the undersigned, Nancy              Rehabilitation and Correction; some limited parole and
 Schmidtgoessling, Ph.D., Clinical Psychologist, on             probation records; very limited school records from the
 November 27, 1987 and December 12, 1987 at the                 Cincinnati Public Schools, a copy of the disposition of
 Hamilton County Criminal Justice Center, and on                Reverend Timothy McDonald; part of the defendant’s
 April 8, 1988 at the Hamilton County Jail Annex. This          preliminary hearing; and a copy of the defendant’s
 included an interview as well as administration of the         statement at the Motion to Suppress.
 Wechsler Adult Intelligence Scale–Revised (WAIS-R)
 and the Minnesota Multiphasic Personality Inventory          Dr. Schmidtgoessling’s report provided further details
 (MMPI). Also, the defendant was interviewed by Shirley       of Smith’s background, particularly in the areas of
 W. Leahy, MSW, ACSW, Clinical Social Worker, on              his developmental history3, his stay at
 November 9 and 12, 1987 at the Hamilton County
 Criminal Justice Center. Prior to these interviews, Mr.
 Smith was made aware of the non-confidential nature of            3
                                                                   Dr. Schmidtgoessling         summarized      Smith’s    developmental
 the evaluation and signed an information sheet permitting    backgro und as follows:
 us to use information gathered from these sessions in a
 mitigation report. Additionally, Ms. Leahy made                        Mr. Smith’s developmental background is a rather confused,
 collateral contact with the prosecuting attorney, Mark            difficult one. It is unclear exactly who is his biological father,
                                                                   since the mother reportedly had relationships with numerous
 Piepmeier; the investigating officer, Detective Joe               men. Therefore, the information available does not pe rmit us to
 Hoffman of the Homicide Squad; Lt. Fletcher of the                app reciate what role if any his biological father may have played
 Homicide Squad, the arresting officer; the defendant’s            in his development. The defendant’s mothe r is known to have
 grandmother, Elizabeth Carter; the defendant’s aunt, Pam          had several psychiatric hospitalizations. She was diagnosed as
 Carter; the defendant’s uncle, Gary Carter; and the               a simple schizo phrenic . . . .The reco rds established that the
                                                                   mother was unable to provide either appropriate structure,
 Hamilton County Criminal Justice Center Psychiatric               discipline or nurturance for the children in the family. She is
 Unit. Attempts were made to reach the defendant’s                 described as both abusive and neglecting towards the children.
 mother; Mrs. Bertha Smith; Mrs. Smith has no phone                Even relatives report that Mrs. Smith would beat the children
 number but we attempted to reach her both at a                    with chains a nd belts and make them go to bed without dinner.
 neighbor’s and . . . her mother’s, although Mrs. Smith            ...
 never returned our phone calls. Additionally, following                The man who seemed m ost active in the family during Mr.
 Mr. Smith’s conviction, this examiner had collateral              Smith’s deve lopm ental years was a Mr. Ludie Reid. This man
 contact with the defense attorneys, Robert Ranz and Dale          was described as having a history of alcoholism, numerous and
 Schmidt, and the prosecutors, Mark Piepmeier and Pat              frequent court contacts and a history of inappropriate sexual
 Dinkelacker. Records were also available for review               behavior. Apparently, the children were severely intimidated by
                                                                   Mr. Reid because of his violent acting out when using alcohol.
 including social histories and psychological evaluations          For example, he was described as having pulled knives on the
 performed by the Hamilton County Department of                    children and once attempting to choke the defendant’s brother.
 Human Services; some records from Hamilton County                 Mr. Reid was also described as having had a history of two
 Juvenile Court; a one page summary of the defendant’s             known sexual offenses . . . . Further, he is known to have been
 treatment at Longview State Hospital; one prior                   hospitalized at Lon gview State H ospital and it seems that that is
                                                                   where he me t Mrs. Smith. . . . During the defendant’s
 psychiatric evaluation performed by the Court                     developmental period, it seems that Mr. Reid was present in the
 Psychiatric Center; records from the Ohio Department of           home for a short time when Mr. Smith was approximately eight
No. 00-4030                                   Smith v. Mitchell           19   20     Smith v. Mitchell                                      No. 00-4030



   years old and then again during M r. Smith’s mid-teen years.

         The Smith family was known to public assistance since
   1955 and had an active case with Children’s Services since                       described that the boys would wet the bed, tear up their clothes,
   October, 1958. In November, 1958, Mrs. Smith was sent to                         and similar behaviors. At this time, the children were enrolled
   Longview State Hospital for treatment. The defendant at that                     at Millvale School and comp laints of their beha vior co ntinued in
   time was approximately one year old. Also, so metime within his                  school.
   first year of life, Mr. Smith was hospitalized at the Convalescent
   W ard at Cincinnati General Hospital for a variety of physical                        Mr. Smith was referred to the school psychologist at this
   symptoms including pneumonia, measles, tonsillitis, a skin                       point in his history and although he was described as
   condition and a vitamin deficiency. The origin of these                          “emotio nally disturbed” the psychologist was unable to get
   disorders is not recorde d in available reco rds. When the mother                sufficient rapp ort with him to com plete the testing and come to
   was hosp italized, Mr. Smith and his brother, Norman, were                       a fuller diagnosis. In October, 19 64, the defendant was sent to
   placed in the first of two foster ho mes. M r. Smith spent his                   the Twelfth Street Clinic and apparently put on medica tions to
   years one through seven (1958 to 1964) at the home of Mr. and                    calm his hyperactivity. T he de fendant was described by their
   Mrs. Julian Davis. Apparently, Mr. Smith did well there in the                   worker at the time as hyperactive yet amiable. T hat clinic
   first few years of life but around 1962, the foster parents noted                recommended that the children be placed either at a structured
   some behavior problems both at home and at school . . . . In                     psychiatric facility such as Longview State Hospital or at
   1964, while enrolled at South Avondale School, both of the                       Glenview School. When the second foster home terminated, the
   Smith brothers were reported to be creating disturbances in the                  boys were p laced at Allen Ho use.
   classroom s, fighting on the playground, and stealing lunches and
   personal property from other children. Additionally, the                              In July, 1965, the children were placed with their biological
   brothers were stealing from the foster parents although the foster               mother and with M r. Reid despite the earlier recommendation
   parents repo rted (in records) that they gave ade quate money to                 from the psychologist. However, the defendant soon began
   the children. It seems that the boys would often use the money                   having school problems and was referred for psychological
   to buy food. In 1964, when the brothers were involved with                       testing in December, 1965. At that evaluation, he was described
   destroying some neighbor’s property and the police were called,                  as functioning in the average range intellectually but as being
   the foster parents felt that they co uld no longer cope with the two             very distractible and having a short attention span. The report
   brothers and they were transferred to their second foster home.                  noted that he was unable to concentrate and organize and that his
   However, records show that the foster mother described the                       reality contact was “precarious.” The psychologist noted that
   defendant as an affectionate person who related relatively better                Mr. Smith was so insecure that he was unable to relate
   to adults than to children. . . .                                                satisfactorily to other people and that he attemp ted to repre ss his
                                                                                    hostility. It stated that he had a trend toward depression and that
        Mr. Smith was then transferred to the home o f Mr. and Mrs.                 his emotional expression was often inappropriate. It was felt that
   Lewis Harrison w here he stayed from S eptembe r, 196 4 to                       his thinking “sometimes b orders on autistic.” The thrust of the
   March, 196 5. Records show, however, that there were problems                    report was to point out that the extent of Mr. Smith’s deprivation
   in that home from the beginning. The brothers were stealing                      and the instability of his home life had prevented the
   from the foster parents, typically to buy food and toys. The                     gratification of his basic psychological needs so that his behavior
   foster parents reported that the boys would laugh in their (the                  problems were really not surprising. The report recommended
   foster parents) faces when disciplined. Th e foster parents also                 that he would function best in a one-on-one situation in school
   reported that the boys would visit the maternal grandmother and                  and that he needed a warm, structured living placement. A rural
   the mother (who had been released from the psychiatric hospital                  placement was suggested so that he would have no compe titive
   around 1961) and that following those visits, the bo ys would be                 peers but if that were not availab le, psychiatric hospitalization
   quite upset afterwards. At those times, the foster parents                       was suggested.
No. 00-4030                                  Smith v. Mitchell          21   22   Smith v. Mitchell                          No. 00-4030

Longview4, and his later functioning.5                                        discipline, and nurturance were not met. This is because
                                                                              he [sic] family of origin was incapable of caring for him
  In the mitigation report Dr. Schmidtgoessling also noted                    because of his mother’s mental illness and inadequate
that Smith had reported a rather extensive history of alcohol                 parenting skills as well as the lack of an effective male
and substance abuse. She also reported that Smith described                   model.      Other family members were apparently
being in prison twice previously, but that his entire legal                   disengaged or unable to overcome the family of origin’s
history was unknown, because she could not get the court                      deficits. Mr. Smith spent his earliest years in foster
records.                                                                      homes that seemed to provide the structure and discipline
                                                                              that he needed, but nevertheless were incapable of
  Dr. Schmidtgoessling reported that Smith’s current                          meeting his extensive needs. He shows an early history
psychological functioning showed him in the low average to                    of behavior problems (stealing, fighting), bedwetting,
borderline range of intellectual functioning.         Dr.                     hyperactivity and strong dependency needs. As he got
Schmidtgoessling concluded:                                                   older and moved back into the family of origin, he was
                                                                              apparently subjected to abuse, neglect, and intimidation.
    In summary, Mr. Smith is the product of a rather                          The parent figures available (Mrs. Smith and Mr. Reid)
  chaotic family life in which his basic needs for structure,                 were inadequate in teaching him appropriate and
                                                                              effective adaptive skills. He moved out of his family of
    4
                                                                              origin some place in his mid to later teens and became
        Dr. Schmidtgoessling discussed Smith’s stay at Longview:              apparently highly influenced by “street life.” This
                                                                              reinforced his antisocial tendencies, and even further
         Soon thereafter, Mr. Smith was placed at the Longview
    State Ho spital. W e have been informed by that center that their         failed to induce a socially appropriate and age
    records from that time period are destroyed . A one page                  appropriate set of adaptive skills (appropriate educational
    summ ary of his stay at Longview State Hospital was forwarded             attitude, stable interpersonal relationships, a substance
    to our Center in 1976 when we performed our prior evaluation.             free lifestyle). He apparently became more involved in
    Tho se records described him as suffering borderline intellectual         the use of substances which he initially seemed to use to
    functioning, as having a slight speech im pediment, as restless
    and distractible with poor insight, but having no evidence of
                                                                              soothe his feelings of being abandoned and lonely, but
    psychosis. His hospital course was described as “uneventful”              which eventually became habitual to him. . . . At the
    although he was discharged in August, 1971 (after being                   time of the offense for which he was convicted, Mr.
    admitted in February, 1966), on AWOL status. Other records as             Smith reportedly was using alcohol and cocaine on a
    well as Mr. Smith’s self-report and the report of collateral              frequent basis, was involved in no significant
    sources, suggest that he was initially placed at Longview
    because of behavior problems such as “running around, tearing
                                                                              relationships, and was working part-time.
    things up and se tting a fire.”
                                                                                This man’s long-term psychological functioning is
    5
      Dr. Schm idtgoessling reported that there we re few records             marked by a very high need for dependence which was
documenting his later functioning. He left home at about fifteen years of     manifest not only in his excessive interest in food as a
age. His educational background was also poorly documented. She noted         youngster but in his ongoing substance abuse as an
that his scho ol records had been sent to Longview when he tra nsferred       adult. However, his psychological capacity for intimate
there, and w ere later destroyed by Longview. The Cincinnati Public           relationships is poor largely because he has had no
Scho ols provided records from the ninth and tenth grades, showing
numero us absence s and po or grade s.                                        significant intimate relationships himself during the
No. 00-4030                                 Smith v. Mitchell        23    24    Smith v. Mitchell                                  No. 00-4030

  critical developmental period of the first few years of                  panel unanimously found Smith guilty of specifications I and
  life. . . . He has never achieved a stable sense of                      II as to Count One and specifications I and II as to Count
  direction, never having experienced this in his earlier                  Two. The court then assessed the mitigating factors.
  years.                                                                   Regarding the nature and circumstances of the offense, the
                                                                           court found that “[t]here is absolutely no question that the
    There are no indications that this man ever suffered a                 defendant purposely, coldly and brutally killed Mary
  substantial mental illness such as schizophrenia, manic                  Bradford while committing the offenses of rape and
  depression, mental retardation or other psychological                    aggravated robbery. He stabbed the victim ten times and then
  disorder that would grossly impair his ability to test                   raped her as the life drained from her body. This is not a
  reality. He did suffer hyperactivity of unknown origin                   mitigating factor and certainly does not militate for mercy.”
  when younger[.] Now, he does suffer a personality                        As to the character and background of the offender, the court
  disorder which impairs his ability to think towards and                  stated:
  plan for the future, utilize judgment in a socially
  appropriate and effective manner, relate intimately to                       The history, character, and background of the
  others and use guilt and anxiety to inhibit acting out                     offender.–As discussed earlier the defendant had a
  behavior.      Lastly, this man does report some                           difficult childhood. As a result, he developed personality
  symptomatology that may be the effect of chronic                           disorders which adversely affected his ability to relate to
  cocaine use, specifically some restlessness and
  hyperactivity.
     It is my opinion that Mr. Smith did not suffer from a                 Ann. § 292 9.04(B ) (Anderson 20 02). T he panel may consider as
  gross impairment of reality testing or restraint at the time             mitigating evidence:
  of the offenses for which he as been convicted. It is my                     the nature and circumstances o f the offense, the history,
                                                                               character, and background of the offender, and all of the
  opinion that both his personality style and his substance                    following factors:
  abuse would have impaired his ability to appreciate the                      (1) W hether the victim of the offense induced or facilitated it;
  situation of the victim and to apply his judgment in a                       (2) W hether it is unlikely that the offense would have been
  socially appropriate fashion at the time of the offenses                     committed, but for the fact that offender was under dure ss,
  for which he was convicted.                                                  coercion, or strong provocation;
                                                                               (3) W hether, at the time of committing the offense, the offender,
                                                                               because of a me ntal disease or defect, lacked sub stantial capacity
                   C. Trial Court Weighing                                     to appreciate the criminality of the offender’s conduc t or to
                                                                               conform the offender’s conduct to the requirements of the law;
  Pursuant to Ohio Rev. Code § 2929.03(D)(3), the trial court                  (4) T he youth of the o ffender;
weighed the aggravating factors against the mitigating                         (5) If the offender’s lack of a significant history of prior criminal
factors.6 The court noted that by its verdict, the three-judge                 convictions and delinquenc y adjudications;
                                                                               (6) If the offender was a participant in the offense but not the
                                                                               principal offender, the degree of the offender’s participation in
    6
                                                                               the offense and the degree o f the offend er’s participatio n in the
      Under Ohio law, once the prosecution has proven one or more              acts that led to the death of the victim;
statutory aggravating circumstances beyond a reasonable doub t, the jury       (7) Any other factors that are relevant to the issue of whether the
or sentencing panel must weigh the aggravating circumstances against the       defendant should be sentenced to death.
mitigating evidence b efore impo sing a death sentence. Ohio Rev. Code     Ohio Rev. Co de Ann. §292 9.04(B) (And erson 2002).
No. 00-4030                            Smith v. Mitchell    25    26   Smith v. Mitchell                            No. 00-4030

  others. He is unable to appreciate the needs of others and           It is the opinion of this three-judge panel that the
  has little regard for human life. This panel recognizes           mitigating factors present pale before the fact that the
  Smith’s personality disorders and difficult childhood as          defendant’s actions were plotted, vicious, persistent and
  a mitigating factor.                                              utterly callous. Mary Bradford was not stabbed once but
                                                                    ten times. She then had to suffer the final indignities of
  The sentencing panel rejected Smith’s argument that the           being raped by Smith while she lay dying and then
victim provoked him because she came at him with a knife.           having her property stolen. It is clear that the defendant
The court observed that Bradford was a slight woman who             went to her apartment to obtain “restitution”. He
suffered from a lung ailment that required her to keep a            obtained it in a violent and ruthless manner, with
breathing device. The sentencing panel also found no                absolutely no regard for the life of Mary Bradford. We
evidence of duress, coercion or strong provocation. The court       find no conduct or provocation on the part of Mary
found that even if the cocaine was stolen, this was not “strong     Bradford which would warrant the defendant’s lethal
provocation.” As for the third mitigating factor under              response.
§ 2929.04(B), the trial court held that Smith did not suffer
from a mental disease or defect at the time of the crime, and     The panel unanimously concluded that the aggravating
specifically noted that Smith did not claim insanity at trial.    circumstances outweighed all the mitigating factors Smith
                                                                  advanced, and imposed the death penalty on each murder
  Smith’s youth was not a factor, nor his lack of significant     count. The panel also sentenced Smith to a minimum term of
history of criminal convictions. Further, since he was the        ten years and a maximum term of twenty-five years, with ten
principal and only offender, his degree of participation in the   years actual incarceration to run consecutively, as to Count III
crime was not a mitigating factor. Finally, as to the catchall    (rape) and Count IV (aggravated robbery).
factors, the sentencing panel noted that although Smith
claimed to be drunk and high on the night of the offense, there                        D. Direct Appeals
was no evidence presented to indicate that Smith was not in
complete control of his faculties at the time.                      As required by statute, see Ohio Rev. Code Ann. § 2929.05,
                                                                  the Ohio Court of Appeals and Ohio Supreme Court
  In weighing the mitigating factors against the aggravating      conducted an independent weighing analysis. Both concluded
factors, the sentencing panel concluded:                          that the aggravating factors outweighed the mitigating factors.
                                                                  The Ohio Court of Appeals held as follows:
    A careful and meticulous review of the mitigating
  factors discloses that the defendant had a difficult                We have considered Smith’s confession, in which he
  childhood. He had no real family to take care of                  said that Bradford threatened him with a kitchen knife,
  him–nurture him. There is a history of mental illness in          his difficult childhood, and the personality defect that
  his family. As a result, Smith grew up with a personality         affected his ability to relate to others. We cannot accept
  disorder that affected his ability to form personal               Smith’s claim that Bradford induced or provoked
  relationships or to appreciate the needs and feelings of          Smith’s response in light of the uncontradicted physical
  others. He became cold and unfeeling with a lack of               evidence relative to her slight stature, her severe
  regard for human life. He developed a specific                    respiratory disability, the absence of defensive wounds
  discomfort and anger toward women.                                and marks on her body as noted by the coroner, the ten
No. 00-4030                            Smith v. Mitchell    27   28       Smith v. Mitchell                                 No. 00-4030

  stab wounds, and the location of Bradford’s blood and          apparently because he had been hospitalized at Longview as
  bloody clothing in her apartment. Nor can we find that         a child, and was administered both shock therapy and anti-
  Smith’s childhood and personality defect, when                 psychotic drugs.
  compared to the nature and circumstances of the offenses
  herein, are of a quality to mitigate his sentence to the         Dr. Robert Smith, a clinical psychologist who specializes
  extent that the aggravating circumstances of rape and          in substance abuse and treatment, administered a series of
  aggravated robbery do not outweigh the mitigating              tests designed to detect the extent of Smith’s chemical
  factors beyond a reasonable doubt.                             dependence. Dr. Smith diagnosed Smith with cocaine
                                                                 dependence, cannabis dependence, and alcohol dependence.
State v. Smith, No. C-880287, 1990 WL 73974, at *9 (Ohio         Dr. Smith opined that “the court ordered evaluations were
Ct. App. June 6, 1990) (per curiam).                             remiss in adequately assessing the extent and impact of
                                                                 [Smith’s] alcohol and substance abuse.” Dr. Smith also stated
  In its independent reweighing, the Ohio Supreme Court          that it was “plausible” that Smith had consumed alcohol,
concluded that:                                                  marijuana, and cocaine on the evening of the offense, and
                                                                 that, “[g]iven the data reported, it is likely that Mr. Smith’s
     When weighing the aggravating circumstances against         ability to adequately judge the consequences of his behavior
  mitigating factors, we find that the aggravating               and to act in his own best interest may have been impaired.”
  circumstances do outweigh the mitigating factors beyond
  a reasonable doubt. The aggravating circumstances are            Dr. James Dobbins, a clinical psychologist, also evaluated
  substantial–the rape and robbery of a helpless woman in        Smith. Dr. Dobbins stated that he reviewed materials
  her own home by someone she invited in. In contrast,           provided by counsel7, conducted two clinical interviews with
  the mitigation case appears inconsequential. While             Smith and administered the MMPI, the Shipley Institute
  unfortunate, Smith’s upbringing did not result in a            Living Scale, Defense Scale of Jackson Personality Research
  mental disease or defect, as opposed to a character defect.    Scale, and the Thematic Apperception Test. Dr. Dobbins
  Smith vacillates between accepting responsibility for          determined that Smith “has many background and
  what occurred and trying to shift the blame onto others.       developmental problems which would contribute to a poor
  His claims lack authenticity, and he has not solidly           psychological adjustment in adult life.”           Like Dr.
  demonstrated any remorse, sorrow, repentance, or desire        Schmidtgoessling, Dr. Dobbins noted that Smith suffered
  for rehabilitation.                                            from malnutrition and resulting vitamin deficiencies as a
                                                                 neonate, as well as pneumonia. Dr. Dobbins stated that Smith
State v. Smith, 574 N.E.2d 510, 521 (Ohio 1991).
          E. State Post-Conviction Proceedings                        7
                                                                       Dr. D obbins stated that he reviewed the following materials:
  The OPD represented Smith in his state post-conviction              Cincinnati Public School Records
proceedings. The OPD investigated Smith’s background and              Hamilton County Psychiatric Court Clinic Records
                                                                      Affidavits of friend s and family me mbe rs of W illiam H . Smith
produced Hamilton County Social Services Records. Post-               Transcript of Mitigation Hearing
conviction counsel also contacted several clinical                    Transcript of statement to Cincinnati Police
psychologists to evaluate Smith for organic brain dysfunction,        Case conference s with staff from the Ohio Public Defender
                                                                      Commission
No. 00-4030                               Smith v. Mitchell      29    30   Smith v. Mitchell                           No. 00-4030

was raised in a severely disturbed family. Dr. Dobbins noted           reported that Smith denied any history of seizures or head
that Smith was placed in foster care, and then Longview State          injuries resulting in unconsciousness. She noted that Smith’s
Hospital. Dr. Dobbins further noted that while at Longview,            mother was frequently under psychiatric care, that he was in
Smith was administered a psychotropic drug. Dr. Dobbins                various foster placements, and that at age eight, Smith was
confirmed that Smith experienced a great deal of physical              probated to Longview and was medicated with Thorazine
abuse from his parents and other caregivers.                           during hospitalization. Dr. Burch observed that “[h]istory of
                                                                       alcohol and substance abuse has also been inconsistent.”
  Dr. Dobbins concluded that Smith’s “school and social
problems are more likely due to his chaotic family structure              Dr. Burch concluded that Smith had a “mild, diffuse
and the likelihood of neurological impairment from perinatal           cerebral dysfunction.” Dr. Burch noted that Smith “earned a
and postnatal infections, vitamin deficiencies, and long term          Halstead-Reitan Impairment Index of 0.7, which would
alcohol abuse.” He diagnosed Smith as DSM III-R Axis I                 suggest a moderate level of impairment.” She added:
305.00 Alcohol Abuse, 304.30 Cannabis Abuse, 304.20                    “However, his performance was no more than mildly
Cocaine Dependence; and Axis II 300.90 Unspecified Mental              impaired on any of the measures--evidence against the
Disorder (nonpsychotic) with antisocial features.                      presence of a discrete lesion. While the results are not
                                                                       strongly lateralizing, there does appear to be more left
  Dr. Kathleen Burch, a clinical psychologist, also evaluated          hemisphere impairment.”
Smith to determine whether Smith showed signs of “cerebral
dysfunction” that might have contributed to “adaptive                     Dr. Burch further observed that Smith’s “dysfunction
deficits.”    Dr. Burch administered a battery of                      appears static--that is, nonprogressive. There is no evidence
neuropsychological tests.8 Like Drs. Schmidtgoessling and              of an acute lesion, or ongoing toxic, metabolic, or infectious
Dobbins, Dr. Burch noted that Smith was hospitalized as an             process.” She noted that Smith’s deficits appeared on tasks
infant with pneumonia and vitamin deficiency. Dr. Burch                involving functions associated with frontal lobe activity such
                                                                       as difficulties in maintaining a cognitive set, and decreased
                                                                       flexibility in thinking.       She further noted that his
    8
                                                                       concentration and attention skills are impaired. She observed
     Dr. B urch stated that she administered the following tests:      that:
    W echsler Adult Intelligence Scale-Revised; W echsler Memory
    Scale-Revised; Category Test; Speech Sounds Perception T est;          The pattern of results suggests either the sequelae of
    Seashore Rhythm Test; Finger Oscillation T est; Aphasia
    Screening Test; Frontal Lob e Battery; T rail M aking T est;         diffuse traumatic brain damage or of chronic alcohol
    Complex Figure Test; California Verbal Learning Test;                abuse. He has marked difficulty with attention and
    Developmental T est of Visual-Motor Integration; Tactual             concentration may be more long-standing, and the result
    Performance Test; Hoope r Visual Organiza tion T est.                of developmental deficit. If the deficits do, indeed result
    Dr. Burch also stated that she re viewed the following materials     from alcoholism, they would be expected to reflect some
provided by counsel:
    Police Re port
                                                                         improvement resulting from extended sobriety. In other
    Reports of Previous Psychological Evaluations                        words, if he had been tested shortly after his arrest, the
    Treatment Summaries                                                  test results would have most likely indicated more severe
    Affidavits of Friends and Family Members of W illiam H . Smith       dysfunction. It is unlikely that continued abstinence
    Case conferences with staff from the Ohio Public Defender            would result in an further improvement of his cognitive
    Commission
No. 00-4030                            Smith v. Mitchell    31   32    Smith v. Mitchell                            No. 00-4030

  status. . . . Overall, the results suggest mild attentional      evidence of Smith’s unfortunate upbringing, substance-
  problems, difficulty with concentration and mental               abuse history and personality disorders, as set forth in the
  tracking, mild problems with nonverbal and verbal                supporting affidavits, was merely cumulative to that
  reasoning, and a tendency to show low initiative and             presented at the mitigation hearing. Consequently, we
  respond to the obvious. The results are consistent with          uphold the trial court’s conclusion that Smith has
  a pattern of diffuse, mild cerebral impairment.                  presented no documentary evidence demonstrating
                                                                   prejudice[.]
Dr. Burch’s tests results were similar to those of earlier
reports. On the WAIS-R, Smith scored a verbal IQ of 85, a        State v. Smith, No. C-930404, 1994 WL 273267, at *4 (Ohio
performance IQ of 89, and a full scale IQ of 85.                 Ct. App. June 22, 1994) (per curiam). The Ohio Supreme
                                                                 Court summarily dismissed Smith’s appeal from that
  In her conclusions, Burch reiterated that                      decision.
  [t]he results, again, are more suggestive of the sequelae                           F. Federal Habeas
  of chronic alcohol abuse or, possibly of repeated head
  trauma. . . . The deficits observed characteristically are        The district court held that trial counsel’s investigation and
  associated with poor impulse control and deficient             preparation for mitigation were not ineffective. The district
  planning and problem solving.                                  court noted in particular that trial counsel called as its expert
                                                                 witness Dr. Schmidtgoessling, who presented information that
  The state post-conviction trial court denied Smith’s motion    tended to establish several mitigating factors. Smith v.
without an evidentiary hearing. The Ohio Court of Appeals        Anderson, 104 F. Supp.2d 773, 809 (S.D. Ohio 2000). The
rejected Smith’s claim of ineffective assistance of counsel in   court held that Smith “fail[ed] to establish that counsel were
the mitigation phase. The court reasoned that:                   ineffective and that Petitioner suffered prejudice from any
                                                                 alleged deficiency, in light of the overwhelming evidence that
    The affidavits [of family members and psychologists]         affirms the reliability of both the finding of guilt and the
  share a common theme, i.e., that Smith’s early years           imposition of sentences.” Id.
  were fraught with instability, abuse, neglect and a total
  lack of parental love and support. During the mitigation                          II. Standard of Review
  hearing, Smith’s mother, two uncles, his minister and a
  psychologist testified concerning their opinions that             Petitioner’s habeas application was filed in 1995, prior to
  Smith had an unstable and difficult childhood, that he         the enactment of the Antiterrorism and Effective Death
  had a history of substance-abuse problems, that he was a       Penalty Act (“AEDPA”); the pre-AEDPA standard of review
  follower and could be easily manipulated and that he had       therefore applies. Coleman v. Mitchell, 268 F.3d 417, 427
  personality disorders which prevented him from relating        (6th Cir. 2001); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.
  to others.                                                     1999). Under that standard, we presume the correctness of
                                                                 the state court factual findings, unless rebutted by clear and
    The trial court, in its opinion, stated that it              convincing evidence, and we review determinations of law, or
  “recognize[d] Smith’s personality disorders and difficult      mixed questions of fact and law, de novo. Coleman, 268 F.3d
  childhood as a mitigating factor.” We conclude that the        at 427; Mapes, 171 F.3d at 413. We may not issue a writ of
No. 00-4030                             Smith v. Mitchell    33    34    Smith v. Mitchell                            No. 00-4030

habeas corpus unless the state court proceedings were                functioning of the adversarial process that the trial cannot
fundamentally unfair as a result of a violation of the               be relied on as having produced a just result.
Constitution or laws or treaties of the United States. Powell
v. Collins, 328 F.3d. 268, 280 (6th Cir., 2003).                   Id. at 686.   This principle applies equally to a capital
                                                                   sentencing proceeding. Id. at 686-87.
                        III. Analysis
                                                                      In Strickland, the Supreme Court set forth a two-part test
        A. Ineffective Assistance of Trial Counsel                 for evaluating ineffective assistance of counsel claims. First,
                                                                   the defendant must demonstrate that counsel’s performance
                        1. Mitigation                              was deficient in that counsel’s errors were so serious that
                                                                   counsel was not functioning as constitutionally guaranteed.
   Smith argues that the district court erred in concluding that   Id. at 687. Second, the defendant must establish that the
Smith was not denied constitutionally effective assistance of      inadequate assistance prejudiced the defense. To establish
counsel in the penalty phase of his trial. The Sixth               prejudice, the defendant must show that “counsel’s errors
Amendment to the United States Constitution provides, inter        were so serious as to deprive the defendant of a fair trial, a
alia, that “[i]n all criminal prosecutions, the accused shall      trial whose result is reliable.” Id.
enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI. As the Supreme Court                 The proper standard for attorney performance is reasonably
stated in Strickland, “the Sixth Amendment right to counsel        effective assistance. Id. Thus, to establish cause, the
exists,” and is necessary “to protect the fundamental right to     defendant must show that counsel’s performance “fell below
a fair trial.” See Strickland v. Washington, 466 U.S. 668, 684     an objective standard of reasonableness.” Id. at 688.
(1984). A fair trial “is one in which evidence subject to          Reasonableness is determined by considering all the
adversarial testing is presented to an impartial tribunal for      circumstances. Id.
resolution of issues defined in advance of the proceeding.”
Id. at 685. Counsel plays a critical role in the adversarial          To show prejudice, the defendant must demonstrate to a
system embodied in the Sixth Amendment because counsel’s           reasonable probability that, but for counsel’s errors, the result
skill is needed to accord a defendant the “‘ample opportunity      would have been different. Id. at 694. In the context of a
to meet the case of the prosecution.’” Id. (quoting Adams v.       challenge to a death sentence, the prejudice question is
United States ex rel. McCann, 317 U.S. 269, 275 (1942)).           “whether there is a reasonable probability that, absent the
Thus, “‘the right to counsel is the right to the effective         errors, the sentencer–including an appellate court, to the
assistance of counsel.’” Id. (quoting McMann v. Richardson,        extent it independently reweighs the evidence–would have
397 U.S. 759, 771, n.14 (1970)).               In defining the     concluded that the balance of aggravating and mitigating
constitutional requirement of effective assistance, the            circumstances did not warrant death.” Id. at 695.
Strickland court stated:
                                                                     These principles are not mechanical rules, rather principles
  In giving meaning to the requirement, however, we must           to guide the process of deciding whether the challenged
  take its purpose–to ensure a fair trial–as the guide. The        proceeding was fundamentally fair. Id. at 696. Thus, the
  benchmark for judging any claim of ineffectiveness must          court deciding an ineffective assistance claim need not
  be whether counsel’s conduct so undermined the proper
No. 00-4030                            Smith v. Mitchell     35    36       Smith v. Mitchell                                  No. 00-4030

approach the inquiry in the same order or even address both           We find no cause or prejudice under Strickland because all
prongs if the defendant fails to establish one. Id. at 697.        of this evidence was presented at mitigation.9             As
                                                                   exhaustively detailed above, virtually all of the mitigating
  Smith characterizes his ineffectiveness claims as sins of        elements that Smith complains of were presented via Dr.
omission and affirmative mistakes. As for omissions, Smith         Schmidtgoessling’s testimony and her mitigation report. In
claims that counsel were ineffective in investigating and          her testimony, Dr. Schmidtogessling explained that Smith’s
preparing for mitigation for failing to (1) communicate and        mother had a history of mental illness, that his biological
follow through with mitigation experts at the OPD, namely          father was uninvolved, that he was placed in a number of
Core, (2) communicate and follow through with                      foster homes and at Longview. She described the lack of
Schmidtgoessling once she was appointed as a “friend of the        structure, nurturing, and the physical and emotional abuse.
court” expert, (3) investigate Smith’s background, (4) develop     Dr. Schmidtgoessling also stated that his IQ was in the
an effective strategy for the mitigation hearing, and              borderline mentally retarded range, and that he abused
(5) request a full psychiatric examination, given Smith’s          alcohol, marijuana, and cocaine. Dr. Schmidtgoessling’s
history at Longview State Hospital. Smith claims that, as a        mitigation report describes in greater detail Smith’s family
result, the trial counsel failed to present a full picture of      background, developmental history, his commitment to
Smith’s tragic life. As for affirmative mistakes, Smith claims     Longview, and his later functioning as a young adult. In fact,
deficient performance in counsel’s decision to allow his           we are at somewhat of a loss in trying to discern what
mother, who is schizophrenic, to read a statement that             evidence Smith believes was not presented at mitigation.
contained damaging information. He also faults counsel for         Smith himself fails to identify which documents were
introducing the testimony of his former pastor, who revealed       available and reviewed by OPD at the post-conviction phase,
that Smith beat his wife.                                          but not reviewed by Dr. Schmidtgoessling.
   Smith alleges that all of the foregoing omissions resulted in     The foregoing facts were obviously part of the record
less than full and accurate mitigation evidence. Smith argues      because both the Ohio Court of Appeals and the Ohio
that post-trial evidence shows that he was born to a single
mother, one of six children, with many different fathers.
Further, his family was poor and uneducated, and involved
with social services even before his birth. Smith points out            9
                                                                          In the dissent’s view, “the facts of this case lead [it] to the same
that the records reveal that he had a traumatic infancy,           conclusion” as held in Powell, “that the testimony of a defense expert may
including that his mother was schizophrenic and that his           have provided facts and information to consider at mitigation which may
biological father was uninvolved. Smith notes further that he      have led to a different sentence.” Sp ecifically, the dissent points out that
lived in foster homes, was abused by his stepfather, and that      “Smith endured an exceedingly difficult childhood,” that he “spent time
he himself was committed to Longview for five and one-half         living with abusive foster parents,” that he “was diagno sed with diffuse
                                                                   cerebral dysfunction,” and that he “spe nt time in a juvenile psychiatric
years, where he received shock therapy, and antipsychotic          facility where , among other things, he received electric sh ock therap y.”
drugs. Smith adds that his I.Q. is in the borderline mentally      The dissent igno res the fac t that, as the m ajority opinio n documents, all
retarded range, and that he has been diagnosed with diffuse        of this evidence was presented at mitigation, in Dr. S chmidtgoessling’s
organic brain impairment which was present at the time of the      testimony and in her mitigation report. The three-judge sentencing panel
crime.                                                             reviewed all of this evidence, as did the Ohio appellate co urts in their
                                                                   independent reweighing of the aggravating circumstances against the
                                                                   mitigating factors.
No. 00-4030                            Smith v. Mitchell    37   38   Smith v. Mitchell                          No. 00-4030

Supreme Court referred to them upon direct review. The           State v. Smith, 574 N.E.2d at 519. The Ohio Supreme Court
Ohio Court of Appeals found that                                 also noted Smith’s IQ scores, his reported alcohol and
                                                                 substance abuse, his ongoing anti-social behavior as an adult,
  Smith’s psychiatric history reflected that he was abused       his hypersensitivity, and the lack of schizophrenia,
  as a child by his mother and stepfather. At ten years of       retardation, or any major psychological disorder. Id. at 519-
  age he spent three years in Longview Hospital’s                20. Like the trial court, the Ohio Supreme Court weighed
  children’s unit. He dropped out of school–according to         these mitigating factors:
  Schmidtgoessling, in the tenth grade–with a history of
  hyperactivity, learning deficiency, poor achievement, and        Smith’s history, character, and background do offer
  disciplinary problems. Dr. Schmidtgoessling found that           mitigating features. Smith clearly had an arduous
  Smith’s IQ fluctuated, but that he was not retarded.             childhood, and his early life shaped a personality with
  Smith told her that he had a long-standing history of            serious character defects. His limited mental capacity,
  alcohol and marijuana use and a two-year history of              childhood deprivation, and alcohol and drug dependency
  cocaine use, which she described as “moderate.” Dr.              all reflect mitigating features. We find his history and
  Schmidtgoessling concluded that Smith did not have a             background to be a mitigating factor, as did the trial
  mental illness or defect, but suffered from a nonorganic         court.
  personality defect that made him impulsive and
  “sensitive to being ripped off.”                               Id. at 520; see also id. at 521 (“As to significant ‘other
                                                                 factors,’ we recognize Smith’s deprived childhood, flawed
State v. Smith, 1990 WL 73974, at *9. The Ohio Supreme           upbringing, character defects, and drug and alcohol
Court, as part of its independent reweighing of aggravating      dependency as mitigating.”). In other words, trial counsel
and mitigating factors on direct appeal, characterized the       was not ineffective because all the information of which
psychological evidence presented during mitigation in the        Smith complains was presented to the sentencing panel, and
following manner:                                                was part of the record before the Ohio Court of Appeals and
                                                                 the Ohio Supreme Court.
  Smith, born in October 1957, came from a chaotic home
  environment, with a schizophrenic, abusive, neglectful            From what we can tell, the only allegedly new mitigating
  mother, and an unknown father. Early psychological             evidence that Smith presents is that he suffers from organic
  reports on Smith showed problems. A psychologist in            brain damage. That evidence is not compelling, however,
  1964 termed him “emotionally disturbed.” In 1965, a            because it is not conclusive. Dr. Smith never states that
  psychologist said his “reality contact was ‘precarious’”       Smith suffers from organic brain damage. The closest thing
  and his “thinking sometimes borders on autistic.” In           to organic brain damage in Dr. Smith’s statement is that
  1965, after acting destructively and setting a fire, he was    Smith was dependent on alcohol, marijuana, and cocaine, and
  committed to Longview, a state mental hospital. In             that each of these chemicals affects the central nervous
  childhood, he displayed “hyperactivity, some learning          system. But Dr. Schmidtgoessling herself also documented
  problems secondary to distractibility, poor achievement        Smith’s substance abuse. And Dr. Smith merely opined that
  in school, a lot of behavior problems, stealing, fighting      it was “plausible” that Smith had abused substances on the
  in school.”                                                    night of the offense, and that if he did, it was “likely” that
                                                                 Smith’s judgment was impaired.
No. 00-4030                            Smith v. Mitchell     39    40    Smith v. Mitchell                            No. 00-4030

   Dr. Dobbins likewise did not diagnose Smith with organic        (6th Cir. 2003); Lorraine v. Coyle, 291 F.3d 416, 436 (6th
brain damage, concluding only that there is a “likelihood of       Cir. 2002), cert. denied, 123 S. Ct. 1621 (2003). In short, trial
neurological impairment.” Nor did Dr. Dobbins ever explain         counsel’s performance was not unreasonable.
whether this likelihood of neurological impairment would
have impacted Smith’s criminal act. Dr. Burch diagnosed               The remaining alleged omissions are of minor magnitude,
Smith with “mild diffuse cerebral dysfunction.” She further        and do not reflect objectively unreasonable performance, let
stated that Smith’s “performance was no more than mildly           alone prejudice. Smith criticizes trial counsel for failing to
impaired on any of the measures[.]” More telling, Dr. Burch        consult with Core. The record shows that Smith’s trial
identified only one deficit that was relevant to Smith’s actions   counsel made initial contact with Core in January 1988, and
on the night of the murder--poor impulse control. Dr. Burch        that counsel actually sent her some materials regarding Smith,
did not opine that Smith’s impairment constituted either           including Schmidtgoessling’s NGRI report, which was quite
diminished capacity or insanity under Ohio law.                    comprehensive. Thus, Smith is incorrect to the extent he
                                                                   suggests that counsel did not provide any materials to Core.
   Although he faults trial counsel for failing to obtain a        It also appears that trial counsel were stymied in their efforts
neuropsychological examination that would reveal evidence          because Core refused to proceed further without funding, and
of organic brain damage, post-conviction counsel’s efforts on      trial court did not order funds until late February 1988. It is
that score were equally unavailing. In essence, then, the only     not clear why counsel ultimately switched to Dr.
evidence the sentencing panel did not hear was that Smith          Schmidtgoessling. Core is probably a qualified mitigation
suffered from a lack of impulse control. Yet, this was not         expert, but the record reflects that Dr. Schmidtgoessling is
new evidence, because as the Ohio Court of Appeals noted on        too. Dr. Schmidtgoessling has been involved with death
direct appeal, Schmidtgoessling concluded that Smith               penalty cases since Ohio’s modern death penalty statute went
suffered from a nonorganic personality defect that made him        into effect in 1981, and her NGRI and mitigation reports as
“impulsive.” See State v. Smith, 1990 WL 73974, at *9.             well as her testimony demonstrate that she was very thorough
Thus, as the Ohio Court of Appeals stated on post-conviction       in her investigation of Smith’s background in the quest for
review, the evidence presented “was merely cumulative to           mitigating evidence. In fact, Dr. Schmidtgoessling testified
that presented at the mitigation hearing.” State v. Smith, 1994    that she usually became involved in mitigation at the
WL 273267, at *4. Furthermore, as the Warden points out,           instruction of the OPD or from a private defense attorney.
the fact that Smith forcefully stabbed the victim ten times,       Furthermore, counsel had Dr. Schmidtgoessling’s NGRI
then had sex with her a second time, and made four separate        report, so at the time they decided to use her instead of
trips to take her property to his car, and then left her to die,   Liverani, they had a good idea of what mitigation evidence
belies any plausible claim of lack of impulse control.             she would present. A comparison of the NGRI report and
                                                                   mitigation report confirm this. Thus, it simply cannot be said
  Other than the slim evidence of a “mild diffuse cerebral         that counsel’s choice of Dr. Schmidtgoessling as their
dysfunction,” which manifested primarily as poor impulse           mitigation expert was deficient. Cf. Wickline v. Mitchell, 319
control, Smith has failed to point to any mitigating evidence      F.3d 813, 820-22 (6th Cir. 2003) (holding that trial counsel
that was not actually presented. Absent the existence of some      were not ineffective for failing to perform a separate
actual medical proof of an organic brain disorder, there can be    mitigation investigation; counsel testified that their pretrial
no cause in the failure to find and present it, and obviously no   investigation was conducted for both guilt phase and
prejudice either. See Thompson v. Bell, 315 F.3d 566, 590          mitigation phase purposes and the mental health evidence
No. 00-4030                           Smith v. Mitchell    41    42    Smith v. Mitchell                            No. 00-4030

submitted with the petitioner’s petition for post-conviction     Smith has not identified any evidence that counsel
relief indicated that the petitioner did not suffer from any     overlooked.
mental condition relevant to the murders; even if deficient
performance, the petitioner failed to show prejudice).              For this reason, Smith’s reliance on Williams v. Taylor, 529
                                                                 U.S. 362 (2000), and Glenn v. Tate, 71 F.3d 1204 (6th Cir.
  Smith criticizes counsel for failing to investigate on their   1995), is misplaced. In both of those cases, the courts
own. He also claims that counsel failed to request records       identified mitigation evidence that existed but was not
from the Hamilton County Juvenile Court or the Hamilton          presented. See Williams, 529 U.S. at 395-98 (finding
County Department of Human Services. However, Dr.                ineffective assistance of counsel because counsel failed to
Schmidtgoessling testified that trial counsel requested and      investigate and introduce evidence of the petitioner’s
received from her the documents that formed the basis of her     nightmarish childhood, including severe and repeated
NGRI report. Thus, even if trial counsel’s performance was       beatings by his father, and available evidence showing that
deficient, there is no prejudice. In any event, prior to         the petitioner was borderline mentally retarded; also finding
mitigation counsel interviewed several witnesses, including      prejudice in that the evidence “might well have influenced the
Smith’s wife, grandmother, and other relatives. Smith faults     jury’s appraisal of his moral culpability”); Glenn, 71 F.3d at
counsel for not meeting with his mother prior to the             1207-11 (finding trial counsel ineffective at mitigation due to
mitigation hearing. Again, even if Smith could somehow           their failure to develop and present mitigating evidence
demonstrate cause on this front, Smith has shown no              regarding the petitioner’s background, including the fact that
prejudice.                                                       in school he had been classified as mentally retarded, and that
                                                                 he suffered organic brain damage, despite its availability).
   Smith also faults trial counsel for failing to communicate    Rather, Smith’s situation is more akin to the petitioners in
with Dr. Schmidtgoessling once she was appointed as the          Thompson, 315 F.3d 566, and Lorraine, 291 F.3d 416, In
friend of the court expert, after conviction and just prior to   both cases we found no ineffective assistance of counsel
mitigation.      From Dr. Schmidtgoessling’s deposition          based on the failure to present mitigating evidence of organic
testimony it appears that counsel may not have been up to        brain damage, because the petitioners never established that
speed on mitigation evidence at certain points during pretrial   organic brain damage was present. See Thompson, 315 F.3d
preparation. Yet again, even if we were to conclude that trial   at 590-92 (and cases cited therein); Lorraine, 291 F.3d at 436-
counsel’s purported ill-preparedness prior to the mitigation     39 (and cases cited therein). As we stated in Lorraine, “if
hearing somehow constituted cause, Smith fails to show any       habeas counsel could not find evidence of organic brain
prejudice whatsoever. Indeed, Dr. Schmidtgoessling herself       damage, then trial counsel cannot be deemed ineffective” for
presented a comprehensive portrait of Smith to the sentencing    failing to find it either. Id. at 436. Cf. Mason v. Mitchell, 320
panel, and did not indicate that she was ill-prepared. Cf.       F.3d 604, 619-27 (6th Cir. 2003) (holding that the petitioner
Powell, 328 F.3d at 276 (noting that Dr. Schmidtgoessling        was entitled to an evidentiary hearing on the adequacy of trial
testified at petitioner Powell’s sentencing hearing that “she    counsel’s investigation and presentation of mitigation
was not given sufficient time to conduct an appropriate          evidence; noting that readily available mitigation evidence
investigation into Petitioner’s mental makeup, to interview      which did not enter the record until the post-conviction stage
necessary family members and acquaintances, or to run            offered an arguably reasonable probability of humanizing the
needed diagnostic tests”). As we have stated and restated, the   petitioner before the jury such that he might not have been
sentencing panel had ample mitigating evidence before it, and    sentenced to death).
No. 00-4030                             Smith v. Mitchell     43    44   Smith v. Mitchell                            No. 00-4030

   Smith’s case is also not like a recent decision of this Court,   counsel failed to find and present available mitigating
Powell. In Powell, a panel of this Court found that the             evidence to the sentencing panel. And there is certainly no
petitioner had been deprived of his right to expert                 showing of prejudice, because the sentencing panel was
psychological assistance at the sentencing phase of his trial.      presented with ample evidence of Smith’s mental makeup.
In reaching this conclusion, the Powell court emphasized            Powell is not persuasive.
defense counsel’s failure to make reasonable investigative
efforts, Powell, 328 F.3d at 292, and to research and collect          The most recent decisions of the Supreme Court and this
necessary information in order to present effective mitigation      Court further bolster our ruling here. See Wiggins v. Smith,
at the penalty phase. In particular, the Powell court noted that    123 S.Ct. 2527 (2003), and Frazier v. Huffman, – F.3d –,
defense counsel were ineffective because they failed to             No. 01-3122, 2003 WL 22069661 (6th Cir. Sept. 8, 2003). In
investigate the petitioner’ background, spent less than two full    Wiggins, trial counsel’s investigation of mitigating evidence
business days preparing for the penalty phase of the trial, and     consisted of three sources; psychological testing, the written
failed to interview and present numerous mitigating witnesses       presentence report, which included a one-page account of the
who were available and willing to testify on the petitioner’s       petitioner’s personal history, and social service records (DSS)
behalf. Instead, trial counsel presented only one witness at        documenting the petitioner’s placements in foster care.
mitigation, Dr. Nancy Schmidtgoessling, the same expert             Wiggins, 123 S.Ct at 2536. The Supreme Court held that the
witness used by trial counsel in this case.                         scope of trial counsel’s investigation was unreasonable when
                                                                    counsel failed to investigate the petitioner’s social history,
  Here, by contrast, trial counsel presented five witnesses at      despite knowledge from their client’s presentence report that
mitigation, and its principal witness, Dr. Schmidtgoessling,        he lived in “misery as a youth,” and described his own
presented a comprehensive picture of Smith’s family, social,        background as “disgusting.” The Supreme Court found that
psychological background, based upon extensive review of            counsel’s performance was also unreasonable in light of the
“[n]umerous sources of information,” which included not             DSS records, which revealed that the petitioner’s mother was
only psychological tests, but also interviews, hospital records,    a chronic alcoholic, and that he was sent to various foster
school reports, and social services records. Furthermore, in        homes. Id. at 2537. The Wiggins Court stated that “any
this case, Dr. Schmidtgoessling did not testify at mitigation       reasonably competent attorney would have realized that
that she “was not given sufficient time to conduct an               pursuing these leads was necessary to making an informed
appropriate investigation into Petitioner’s mental makeup, to       choice among possible defenses. . . . Indeed, counsel
interview necessary family members and acquaintances, or to         uncovered no evidence in their investigation to suggest that a
run needed diagnostic tests.” See id. at 276. In this case, Dr.     mitigation case, in its own right, would have been
Schmidtgoessling also did not indicate here, as she did in the      counterproductive, or that further investigation would have
Powell case, “that Petitioner likely suffered from some             been fruitless.” Id. Cf. Johnson v. Bell, – F.3d –, No. 01-
organic brain dysfunction and that such a defect could be           5451, 2003 WL 22082176, at * 5-6 (6th Cir., Sept. 10, 2003)
detected only with tests that had not yet been performed on         (holding that, unlike Wiggins, where counsel had sufficient
Petitioner.” See id. Unlike the petitioner in Powell, Smith         information about their client’s abysmal childhood such that
did not present any “affidavits from friends and family             their failure to pursue further investigation was objectively
members” who could have offered the jurors “first hand-             unreasonable, “there is nothing to suggest that counsel in the
accounts from those who knew Petitioner best.” See id. at           instant case ignored known leads that might have helped them
292. In short, unlike Powell, Smith has not demonstrated that       to prepare their case in mitigation”; and that “[t]he mitigating
No. 00-4030                             Smith v. Mitchell     45    46    Smith v. Mitchell                            No. 00-4030

evidence proffered by petitioner falls short of the quantum         counsel failed to present a full and accurate picture of Smith’s
required by Wiggins, Cone, and Williams”).                          background to the sentencing panel. Thus, we cannot find
                                                                    cause, because Smith has not identified deficient
  In Frazier, this Court found counsel’s performance was            performance. It therefore follows that we cannot find
objectively unreasonable for failing to investigate and present     prejudice either.
evidence of a brain impairment resulting from a fall off a
ladder, which they would have discovered from their review                              B. Cumulative Errors
of medical records. Frazier, 2003 WL 22069661, at *11.
Further, affidavits presented during state postconviction              Smith also contends that his trial attorneys were ineffective
proceedings documented the petitioner’s head trauma and             because they failed to rebut testimony that Smith lacked
suggested that a correlation could exist between the                remorse. Smith contends that counsel should have objected,
petitioner’s injury and his head trauma. We held that “[w]e         and rebutted this statement with Dr. Weaver’s NGRI report,
can conceive of no rational trial strategy that would justify the   which showed that Smith displayed remorse during his
failure of Frazier’s counsel to investigate and present             competency review with Dr. Glenn Weaver. In the report, Dr.
evidence of his brain impairment.” Id.                              Weaver indicated that Smith had broken down when
                                                                    describing the crime. Smith claims prejudice “because,
  In stark contrast with Wiggins and Frazier, “[o]ther than         absent this improper argument, the balance of aggravating and
the slim evidence of ‘mild diffuse cerebral dysfunction’, . . .     mitigating factors could have shifted in favor of sparing his
Smith has failed to point to any mitigation evidence that was       life.” Br. at 52.
not actually presented.” Here, principally through the
testimony and report of Dr. Schmidtgoessling, the sentencing           Even if improper, there is no prejudice in light of the
panel had ample mitigating evidence to weigh against the            overwhelming aggravating (as well as mitigating) evidence
aggravating circumstances of the crime. To the extent that          presented. Furthermore, the argument was made to a three-
Wiggins and Frazier reflect what constitutes ineffective            judge panel, so any inflammatory effect was de minimis
assistance in failing to investigate and develop available          anyway. Cf. Harris v. Rivera, 454 U.S. 339, 346 (1981) (per
mitigating evidence, they confirm that counsel’s decision to        curiam) (“In bench trials, judges routinely hear inadmissible
present the mitigation report and testimony of Dr.                  evidence that they are presumed to ignore when making
Schmidtgoessling detailing Smith’s social history was               decisions.”); Wickline, 319 F.3d at 823-24 (holding that the
objectively reasonable. See Strickland, 466 U.S. at 688             three-judge panel would not likely have been misled by any
                                                                    improper evidence); United States v. Joseph, 781 F.2d 549,
   As Strickland made clear, our role on habeas review is not       552-53 (6th Cir. 1986) (stating that “[i]t is well settled that in
to nitpick gratuitously counsel’s performance. After all, the       a non-jury trial the introduction of incompetent evidence does
constitutional right at issue here is ultimately the right to a     not require a reversal in the absence of an affirmative showing
fair trial, not to perfect representation. Strickland, 466 U.S.     of prejudice.”).         Finally, Smith’s own confession
at 684. Rather, we are looking to see “whether counsel’s            independently revealed his lack of remorse.
conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having      Smith further faults counsel for reading into the record
produced a just result.” Id. at 686. We cannot say that here,       during mitigation his unsworn statement admitting guilt. This
because Smith has offered us no evidence to demonstrate that        claim is also without merit, because it is clear from the record
No. 00-4030                             Smith v. Mitchell     47    48    Smith v. Mitchell                             No. 00-4030

that this was Smith’s decision and not trial counsel’s. At          which the defendant’s mental condition was “seriously in
counsel’s request, the trial court made sure that Smith knew        question” upon the defendant’s “threshold showing.” Id. at
of his right to testify, had created the written statement          82. Furthermore, the Court held that the state was obliged
himself, and had discussed the implications of this strategy        merely to provide one competent psychiatrist, and that it
with his trial counsel. It was noted on the record that Smith       could choose that psychiatrist. In other words, the
and his trial counsel took a 35 minute recess specifically to       defendant’s right does not include the right to a psychiatrist
discuss this issue with Smith prior to reading the document         of his choice. Id. at 83 (“This is not to say, of course, that the
into the record. Thus, counsel are not to be deemed deficient       indigent defendant has a constitutional right to choose a
because they followed Smith’s instructions. See Coleman v.          psychiatrist of his personal liking or to receive funds to hire
Mitchell, 244 F.3d 533, 545-46 (6th Cir. 2001) (“An                 his own.”).
attorney’s conduct is not deficient simply for following his
client’s instructions.”). Again, there is no danger of prejudice       This Court has interpreted Ake as allowing psychiatric
given the overwhelming evidence in this case.                       assistance during the sentencing phase if 1) the defendant’s
                                                                    sanity was a significant factor at trial, or 2) the state presents
                      C. Ake Violations                             at sentencing psychiatric evidence of future dangerousness.
                                                                    Mason, 320 F.3d at 615-16; Thompson, 315 F.3d at 588-89;
  Smith argues that the trial court’s refusal to provide him        Skaggs v. Parker, 235 F.3d 261, 272 (6th Cir. 2000); United
with independent expert assistance during mitigation violated       States v. Osaba, 213 F.3d 913, 917 (6th Cir. 2000);
Ake v. Oklahoma, 470 U.S. 68 (1985), and that trial counsel’s       Kordenbrock v. Scroggy, 919 F.2d 1091, 1120 (6th Cir. 1990)
failure to request that an expert be provided violated              (en banc opinion of Kennedy, J., with five Judges concurring
Strickland.                                                         and one Judge concurring in the result).
  In Ake, the Supreme Court held that “when a defendant has            Smith’s claim fails because Smith’s sanity was not a
made a preliminary showing that his sanity at the time of the       significant issue during trial principally because Smith
offense is likely to be a significant factor at trial, the          withdrew his insanity defense. Smith initially raised an
Constitution requires that a State provide access to a              insanity defense and, as a result, the trial court ordered three
psychiatrist’s assistance on this issue, if the defendant cannot    psychiatric evaluations prior to trial. Each expert uniformly
otherwise afford one.” Ake, 470 U.S. at 74; id. at 83 (“We          concluded that Smith did not suffer from any mental illness.
therefore hold that when a defendant demonstrates to the trial      Smith then withdrew his insanity defense. Thus, he does not
judge that his sanity at the time of the offense is to be a         meet the first test under Skaggs. Smith also does not argue
significant factor at trial, the State must, at a minimum, assure   that the prosecution presented evidence of future
the defendant access to a competent psychiatrist who will           dangerousness. He therefore did not have a right to any
conduct an appropriate examination and assist in evaluation,        psychiatric assistance at sentencing. Mason, 320 F.3d at 616
preparation, and presentation of the defense.”). The Ake            (holding that the petitioner did not have a clearly established
Court also stated that a similar conclusion was required “in        right to any psychiatric assistance at sentencing because the
the context of a capital sentencing proceeding, when the state      State of Ohio did not present any psychiatric evidence of the
presents psychiatric evidence of the defendant’s future             defendant’s future dangerousness).
dangerousness.” Id. at 83. At the same time, the Ake
majority emphasized that its ruling was limited to cases in
No. 00-4030                                     Smith v. Mitchell         49     50     Smith v. Mitchell                                    No. 00-4030

  Even so, the trial court appointed Schmidtgoessling during                        Smith’s ineffective assistance of counsel claim must be
the mitigation phase. Smith complains that he was entitled to                    rejected because, as he himself admits in his brief, his
an independent psychiatrist, rather than a “friend of the court”                 attorneys requested an independent psychiatrist for the
appointment. Ake does not entitle him to the psychiatrist of                     mitigation phase, but the trial court denied the motion.
his choosing, only a competent psychiatrist. Ake, 470 U.S. at                    “Months prior to trial, the trial court denied a defense request
83; Mason, 320 F.3d at 616; Thompson, 315 F.3d at 588.10                         for an independent mental health professional at the penalty
                                                                                 phase.” Brief at 53. Thus, Smith’s trial counsel cannot be
                                                                                 ineffective for failing to request an independent psychiatrist.
    10
       W e recognize that a panel of this Court recently held that “an           Furthermore, “[w]e have never found counsel to be
indigent criminal defendant’s constitutional right to psychiatric assistance     ineffective solely because the expert used was on the State
in preparing an insanity defense is not satisfied by court appointment of        payroll.” Martin v. Mitchell, 280 F.3d 594, 614 (6th Cir.),
a ‘neutral’ psychiatrist–i.e., one whose report is available to both the         cert. denied, 123 S. Ct. 515 (2002).
defense and the prosecution.” Powell v. Collins, 328 F.3d 268 , 284 (6th
Cir. 2003). Ho wever, this “holding” is contrary to Ake and our own
precedent. See Ake, 470 U .S. at 83 (“That is not to say, of course, that the      Smith also argues that the trial court erred in denying him
indigent defendant has a constitutional right to choo se a psychiatrist of his   a drug and alcohol expert at the culpability phase. This
personal liking or to receive funds to hire his own. Our concern is that the     argument must likewise be rejected. Dr. Schmidtgoessling
indigent defendant have access to a competent psychiatrist for the purpo se      testified to Smith’s long history of substance abuse and its
we have disc ussed . . . . ”); Thompson, 315 F.3d at 588.
                                                                                 effects on him. Dr. Schmidtgoessling’s testimony was
      Furthermore, the panel’s “holding” ap pears to be dicta, because it        sufficient for the Ohio Supreme Court to conclude that
does not appear that the Powell petitioner’s sanity was actually at issue        Smith’s drug and alcohol abuse constituted a mitigation
during trial. Rather, it appears that only Po well’s competency to stand         factor. See State v. Smith, 574 N.E.2d at 520.
trial and his mental condition were at issue. See Powell, 328 F.3d at 275
(“Defense counsel then filed a sugge stion of incom peten cy.”); id.               For all the reasons discussed in the preceding section,
(“Finally, [Dr. Schmidtgoessling] testified that, although Petitioner has a
mild mental defect, his condition did not meet the legal definition of
                                                                                 Smith has not shown that he was prejudiced by counsel’s use
insanity because that defect is not “of sufficient severity to c ause him to     of Dr. Schmidtgoessling rather than some other hypothetical
be incapable of knowing right from wrong or to restrain himself from             expert. Trial counsel is frequently faulted for failing to obtain
doing a certain act.”); id. (“The trial judge again denied the motion and        the “right” expert. Unless habeas counsel can locate and
found Petitioner co mpe tent to stand trial.”); id. at 286 (“Dr. Tanley’s        produce this mythic expert, there can be no cause or
after-the-fact post-conviction testimony does nothing to change the
harmlessness of the trial court’s error because the fact that one has
                                                                                 prejudice. Such is the case here. As Dr. Schmidtgoessling
difficulty conforming his conduct to the requirements of the law ‘is not         stated, Smith has a “personality disorder,” most certainly
enough to prove insanity;’ one must demonstrate the lack of capacity to          caused by his unfortunate upbringing. But there is no proof
do so .”).                                                                       that he has organic brain damage or any other diagnosed
    In any event, although relevant here (because this case is also pre-
AED PA), the Powell panel’s “holding” is of limited precedential value
because the habeas petition in that case was filed prior to the A ED PA .        we join those circuits that have held that an indigent criminal defendant’s
Under the AEDPA, the federal constitutional righ t must have be en clea rly      constitutional right to psychiatric assistance in prep aring an insanity
established at the time of the state court decision. As the panel’s opinion      defense is not satisfied by court appointment of a “neutral” psychiatrist[.]”
acknowledges, Ake did no t hold that due process requires the State to           (Em phasis added.)). S tate courts obviously cannot, therefore, violate the
provide an independent psychiatrist, mere ly a competent one. T he pa nel’s      AEDPA by holding that Ake merely requires a competent psychiatrist, and
“holding” is an extension of Ake. See Powell, 328 F.3d at 284 (“T oda y,         not an indep endent one.
No. 00-4030                            Smith v. Mitchell     51    52   Smith v. Mitchell                            No. 00-4030

mental disease or defect. Indeed, at pretrial, three mental        reference here. See Smith v. Anderson, 104 F. Supp.2d at
health experts failed to detect any indicators of possible         839-40.
organic brain damage. At post-conviction, three mental
health experts, hand-picked by habeas counsel, failed to come           E. Consideration of Nonstatutory Aggravating
up with a diagnosis of organic brain damage. It is therefore                           Circumstances
not possible to fault trial counsel for accepting the conclusion
of three court-appointed mental health experts, and                  Smith argues that the trial court erred by including
strategically deciding to rely on Dr. Schmidtgoessling to          nonstatutory aggravating factors in their sentencing decisions.
present an exhaustive presentation of the evidence she did         Specifically, Smith contends that the trial court used the
have after an extensive review of numerous records. In short,      nature and circumstances of the offense as a nonstatutory
Smith has not demonstrated that any of the alleged failings by     aggravating circumstance although the Ohio statute requires
trial counsel prejudiced his right to a fundamentally fair         the nature and circumstances be considered as mitigating
mitigation proceeding. Indeed, as every court that has             factors. See Ohio Rev. Code § 2929.04(B). As the Ohio
reviewed the issue has determined, although there was              Supreme Court concluded:
certainly abundant mitigation evidence presented, it could not
outweigh the aggravating circumstances found in this brutal          Smith’s argument lacks merit because the panel’s
crime.                                                               opinion listed only the nature and circumstances of the
                                                                     offense as a possible, but not relevant, mitigating factor.
  We now turn to the remainder of Smith’s arguments.                 Their opinion did not list any nonstatutory aggravating
Respondent argues that many of them have been procedurally           circumstances. Their reference to the nature and
defaulted. Because all are without merit, we will briefly            circumstances of the offense was proper, since “[u]nder
dispose of them on those grounds, assuming without                   R.C. 2929.03(F), a trial court or three-judge panel may
deciding, solely for purposes of expediting somewhat the             rely upon and cite the nature and circumstances of the
analysis, that they have not been procedurally defaulted.            offense as reasons supporting its finding that the
                                                                     aggravating circumstances were sufficient to outweigh
     D. Ineffective Assistance of Appellate Counsel                  the mitigating factors.” State v. Stumpf, (1987) . . . 512
                                                                     N.E.2d 598, paragraph one of the syllabus.
  Smith maintains that he received ineffective assistance of
appellate counsel. He alleges that Supreme Court counsel           State v. Smith, 574 N.E.2d at 518.
was ineffective for filing the wrong pleading, failing to
consult with him regarding his case prior to the filing of his        Upon review, we agree with the district court that the Ohio
appellate brief, and failing to raise meritorious issues.          Supreme Court “reasonably and correctly determined that the
                                                                   trial court followed the dictates of state law in performing its
   This claim is without merit. Smith demonstrated absolutely      penalty-phase deliberations at trial.” Smith v. Anderson, 104
no prejudice from counsel’s misnaming of a pleading in the         F.Supp.2d at 820. The states have wide latitude to structure
Supreme Court, or its alleged failure to consult with him. As      sentencing procedures. See Boyde v. California, 494 U.S.
to counsel’s purported failure to raise meritorious issues, we     370, 376 (1990). Thus, as the district court held, to the extent
agree with the district court’s analysis and incorporate it by     that Smith states a constitutional claim cognizable on habeas,
No. 00-4030                              Smith v. Mitchell     53    54   Smith v. Mitchell                           No. 00-4030

it is foreclosed by well established Supreme Court precedent.        misconduct during the mitigation phase, including improper
See Smith v. Anderson, 104 F. Supp.2d at 820.                        introduction of lack of remorse, insanity standard, and
                                                                     improper remarks, and 4) cumulative effect of prosecutorial
   Even if the Ohio Supreme Court’s analysis of Ohio law was         misconduct.
incorrect there is no constitutional violation. The United
States Supreme Court has held that once a defendant is found            In Darden v. Wainwright, 477 U.S. 168, 181 (1986), the
eligible for death based on a constitutionally sufficient            Supreme Court noted that on habeas review, “the relevant
narrowing circumstance, the sentencer’s discretion is virtually      question is whether the prosecutor’s comments ‘so infected
unlimited. See Zant v. Stephens, 462 U.S. 862, 878-79                the trial with unfairness as to make the conviction a denial of
(1983). Furthermore, the Supreme Court has also held that            due process.’” In addition this Court has stated that “[w]hen
consideration of a non-statutory aggravating circumstance,           a petitioner makes a claim of prosecutorial misconduct, ‘the
even if contrary to state law, does not violate the Constitution.    touchstone of due process analysis . . . is the fairness of the
Barclay v. Florida, 463 U.S. 939 (1983). This claim is               trial, not the culpability of the prosecutor.” Hutchison, 303
without merit.                                                       F.3d at 750 (internal quotation omitted). In other words,
                                                                     habeas relief is warranted if the prosecutor’s conduct was “‘so
        F. Imposition of Multiple Death Sentences                    egregious so as to render the entire trial fundamentally
                                                                     unfair.” Id. (internal quotation omitted).
   Smith contends that he has two aggravated murder
convictions and two death sentences for a single homicide, in               1. Racism Pervading the Charging Decision
violation of double jeopardy. The trial court’s entry of
sentence imposes the death penalty as to Count 1 and as to             Smith, who is African-American, argues that the ad hoc
Count 2, and further provides that “[t]he sentences for Counts       policies adopted by the Hamilton County Prosecutor’s Office
1 and 2 will run concurrent." Among other guarantees, the            reflect a racial bias in charging and prosecuting capital
Double Jeopardy Clause seeks to protect against multiple             offenses. According to Smith, based upon the 1980 census
punishments for the same offense imposed in a single                 data prepared by the U.S. Bureau of Census, the population of
proceeding, see North Carolina v. Pearce, 395 U.S. 711, 717          Hamilton County was nineteen percent African-American in
(1969); Jones v. Thomas, 491 U.S. 376, 386-87 (1989) (same;          1980. Further, since Ohio’s current death penalty law became
citing Pearce). Even if there were error here, it cannot be          effective on October 29, 1981, roughly 62% of the death
said that the error a “substantial and injurious effect” resulting   sentences in Hamilton County have been imposed upon
in “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619,           African-Americans even though they consist of only 20% of
637 (1993); Lorraine, 291 F.3d at 444 (and cases cited               the county’s population. Smith contends that because the
therein). “[T]he fact is that Smith will not be executed twice       administration of capital punishment in Ohio is infected with
for a single murder.” Warden’s Br. at 68-69.                         racism, Ohio’s administration of capital punishment, as
                                                                     applied to him, violates the Eighth and Fourteenth
                G. Prosecutorial Misconduct                          Amendments.
  Smith presents four categories of prosecutorial misconduct:          The thrust of Smith’s argument is that the death penalty is
1) racism pervading the charging decision, 2) prosecutorial          disproportionately applied to blacks, an argument we rejected
misconduct during the culpability phase, 3) prosecutorial            in McQueen v. Scroggy, 99 F.3d 1302, 1333 (6th Cir. 1996)
No. 00-4030                            Smith v. Mitchell    55    56   Smith v. Mitchell                            No. 00-4030

(holding that “the evidence offered by McQueen amounts to         a prosecutor to rebut a study that analyzes the past conduct of
the same kind of statistical studies that the Supreme Court       scores of prosecutors is quite different from requiring a
found insufficient in McClesky v. Kemp, 481 U.S. 279, 297         prosecutor to rebut a contemporaneous challenge to his own
(1987)). Moreover, in Coleman v. Mitchell, 268 F.3d 417,          acts.” McClesky, 481 U.S. at 296 n.17. Smith has not met his
441-42 (6th Cir. 2001), we rejected a challenge to Ohio’s         burden of establishing a prima facie case of unconstitutional
capital sentencing based on statistics similar to those Smith     conduct in his case. See id. at n.18. Indeed, the only
presents. In Coleman, the petitioner relied on a study finding    evidence he provides is Ney’s inability to remember his case
a discrepancy between the Ohio representation in the Ohio         at all. This is not evidence of discriminatory intent.
population generally (9%), and on death row (49%). We held
that “[a]lthough the racial imbalance in the State of Ohio’s                          2. Culpability Phase
capital sentencing system is glaringly extreme, it is no more
so than the statistical disparities considered and rejected by      Smith contends that during the guilt phase, the prosecutor
the Supreme Court in McClesky as insufficient to                  introduced victim-impact evidence, engaged in improper
‘demonstrate a constitutionally significant risk of racial bias   argument, failed to disclose favorable impeachment evidence,
affecting the . . . capital sentencing process.’” Coleman, 268    and failed to disclose that a police officer saw a blue car with
F.3d at 441-42 (quoting McClesky, 481 U.S. at 313).               the back window missing.

   Smith also argues prosecutorial intent. “[T]o prevail under           a. Victim-Impact and Improper Argument
the Equal Protection Clause, [a defendant] must prove that the
decisionmakers in his case acted with discriminatory                During his opening statement, the prosecutor introduced
purpose.” McClesky, 481 U.S. at 292. The district court           testimony regarding the size of the victim’s family. The
permitted discovery on this issue. In his deposition, the         victim’s daughter also testified to the extent of the victim’s
former Hamilton County Prosecutor, Judge Ney, stated that         remaining family members. We refuse to hold that these two
he met with supervisors in making the capital indictments and     comments, made to a three-judge panel, so infected the trial
that the voting group consisted of six to eight persons.          as to render it fundamentally unfair.
However, his former-first assistant indicated in a sworn
statement that only Ney and himself would make the decision.         Smith further objects to the prosecutor’s comment
Smith also points out that the Hamilton County Prosecutor’s       describing the crime as “cold and calculating,” his statement
office has no written policies or procedures regarding the        that Smith robbed the victim while blood spurted out her
indictment of death cases. Regarding Smith’s case in              neck, and his statement that Smith got up the next morning
particular, they had “no independent recollection of the          and celebrated. We believe that these statements are
defendant, the facts or anything surrounding this case.” Ney      reasonable inferences drawn from the evidence presented at
also stated that no records would be kept of the decision to      trial. See Byrd v. Collins, 209 F.3d 486, 536 (6th Cir. 2000).
indict. Thus, according to Smith, Ney could not provide a         In any event, these statements, like the preceding ones, were
race-neutral explanation.                                         not so egregious as to render the trial fundamentally unfair.
                                                                  See id.
  Smith’s claim must fail. Ney was not obliged to provide a
race- neutral explanation. Further, his inability to provide an
explanation supports the logic in McClesky that “[r]equiring
No. 00-4030                            Smith v. Mitchell     57    58     Smith v. Mitchell                                   No. 00-4030

                       b. Brady Claim                              Smith v. Anderson, 104 F. Supp.2d at 824-25. This claim is
                                                                   without merit.11
  Smith contends that the prosecutor failed to disclose
favorable impeachment evidence as required by Brady v.                                     3. Mitigation Phase
Maryland, 373 U.S. 83 (1963). Specifically, Smith claims
that the prosecutor failed to reveal that Brenda Henson, who         Smith objects to the prosecutor’s statements during
tended bar at the Race Inn, testified that she knew Smith as a     mitigation that Smith lacked remorse and that he could not
customer at the bar. Smith also claims that the prosecutor         meet the insanity standard and therefore no mitigating factors
failed to disclose an eyewitness Jane Echols, who had been         were present. Finally, Smith complains that the prosecutor
with Mary Bradford at the bar. Echols purportedly could not        urged the sentencer to consider non-statutory aggravating
identify Smith as the man who left the bar with the victim.        circumstances. Again, these statements were made to a three-
Smith also asserts that the prosecutor failed to disclose that a   judge panel, who are presumed to base their judgment on
police officer saw a blue car with the back window missing,        relevant evidence. This argument lacks serious merit.
which was not Smith’s car, outside the victim’s residence.
                                                                                          4. Cumulative Effect
  Materiality is an essential element of a Brady claim. Brady,
373 U.S. at 87. We agree with the district court that:               Smith claims that the cumulative effect of prosecutorial
                                                                   misconduct rendered his trial fundamentally unfair. Because
     Without deciding whether the State actually withheld          we find no prosecutorial misconduct as to any of the
  the evidence, this Court finds that the witness statements       individual claims, there can be no cumulative effect of
  alleged to have been withheld by the State are neither           prosecutorial misconduct.
  exculpatory nor material. . . . First, with respect to the
  identification of Petitioner by Ms. Henson, the fact that                                   H. Jury Waiver
  she identified Petitioner as a patron of the bar, as well as
  a possible perfume salesman are neither contradictory to           Smith waived his right to a jury trial, subsequently
  her testimony, nor material.            There were no            withdrew the waiver, entered another waiver of a jury trial,
  inconsistencies in the identification of Petitioner and no       and finally requested to be tried by a three-judge panel
  showing has been made by Petitioner that the standards           instead. Smith argues that the district court erred in
  for materiality have been met. Second, the testimony of          determining that his jury waiver was proper. His claim is
  Janice Echols was not material, as she could neither             three-faceted. First, he claims that his waiver is not valid
  include nor exclude Petitioner as the person who left the        because his attorney and the court represented that he could
  bar with the victim. In sum, the allegedly withheld              not withdraw the waiver. Second, Smith contends that the
  “exculpatory” evidence is simply not compelling.                 court did not adequately inform him of the consequences.
                                                                   Third, Smith asserts that his attorneys did not adequately
                                                                   research potential consequences of waiver.


                                                                        11
                                                                          Although the district court did not discuss the car, Smith offers no
                                                                   argum ent as to why this evidenc e is material.
No. 00-4030                              Smith v. Mitchell      59    60   Smith v. Mitchell                           No. 00-4030

   As the district court held, this claim is utterly without merit.   against mitigating factors. See Buell v. Mitchell, 274 F.3d
The district court thoroughly and exhaustively addressed the          337, 367-68 (6th Cir. 2001).
issue, and we incorporate by reference its holding at pages
795-96. See Smith, 104 F. Supp.2d at 795-96. See also Lott               Smith argues that the Ohio death penalty statutes are
v. Coyle, 261 F.3d 594,613-15 (6th Cir. 2001) (holding that           unconstitutional “because they require proof of aggravating
the petitioner’s waiver of right to jury trial was knowing,           circumstances in the trial phase of a bifurcated proceeding.”
intelligent and voluntary although the trial court conducted no       We rejected this argument in Coleman, 268 F.3d at 443
independent inquiry into the extent of the alleged discussions        (holding that the Ohio scheme, by requiring proof of
between the petitioner and his counsel; finding no error on           aggravating circumstances at the guilt, rather than penalty
facts of case).                                                       phase, is consistent with Lowenfield v. Phelps, 484 U.S. 231
                                                                      (1988)). See Lowenfield, 484 U.S. at 241-46; Buell, 274 F.3d
       I. Constitutionality of Ohio’s Death Penalty                   at 269-70. Smith’s next argument is that the Ohio statute is
                                                                      unconstitutional because it permits duplication between the
  Smith attacks the constitutionality of Ohio’s death penalty         aggravating circumstances and an element of the underlying
on various grounds. First, he alleges that the Ohio scheme is         crime. This argument is also inconsistent with Lowenfield
unconstitutional because “there is no legitimate, compelling          and has been rejected by this Court in Buell. See Lowenfield,
state interest in killing a person.” This global attack on the        484 U.S. at 246; Buell, 274 F.3d at 269-70.
death penalty as a violation of the Eighth Amendment is
foreclosed by Gregg v. Georgia, 428 U.S. 153, 168-87                     Smith contends that the Ohio statute fails to provide for an
(1976).                                                               adequate proportionality review by the appellate courts.
                                                                      However, comparative proportionality review is not
   Next, Smith claims that Ohio’s sentencing procedures are           constitutionally required, see Pulley v. Harris, 465 U.S. 37,
unreliable. He contends that the Ohio scheme gives the jury           50 (1984), and this argument has already been rejected by this
too much discretion in determining the aggravating                    Court. Buell, 274 F.3d at 368-69; Byrd, 209 F.3d at 539; Coe
circumstances. Specifically, he claims that the statute fails to      v. Bell, 161 F.3d 320, 351-52 (6th Cir. 1998). Smith also
require the state to prove the absence of mitigating factors, as      alleges that the electric chair violates the Eighth Amendment.
opposed to requiring the defendant to prove the existence of          We rejected this argument too in Buell. See Buell, 274 F.3d
mitigating circumstances by a preponderance of the evidence,          at 370.
and fails to define relevant terms such as “weighing” and
“mitigating.”       The Constitution contains no such                   Finally, as a general matter, this Court has upheld the
requirements. See Buchanan v. Angelone, 522 U.S. 269, 275-            constitutionality of the Ohio death penalty scheme. See Buell,
76 (1998) (holding that the Eighth Amendment does not                 274 F.3d at 367-70; Byrd, 209 F.3d at 539.
require the jury be instructed on the concept of mitigating
evidence or on particular statutory mitigating factors, and that                    J. Grand Jury Discrimination
states are free to structure the jury’s consideration of
mitigation so long as it does not preclude the jury from giving         Smith alleged that his constitutional rights were violated
effect to it). Furthermore, this Court has upheld Ohio’s              because African-Americans were under represented in the
statutory scheme for weighing aggravating circumstances               pool from which his grand jury was selected. The district
                                                                      court held that this claim was procedurally defaulted, because
No. 00-4030                            Smith v. Mitchell    61    62    Smith v. Mitchell                            No. 00-4030

Smith failed to present this claim in any state court               _____________________________________________
proceeding. The district court ruled in that alternative that
Smith had failed to substantiate his claim under the test set       CONCURRING IN PART, DISSENTING IN PART
forth in Jefferson v. Morgan, 962 F.2d 1185 (6th Cir. 1992).        _____________________________________________
See Smith, 104 F. Supp.2d at 849.
                                                                    R. GUY COLE, JR., Circuit Judge, concurring in part and
   Smith did allege in a motion to alter or amend judgment        dissenting in part. I concur only in the result reached by the
that the grand jury foreman in his case was selected in a         majority denying each of the asserted grounds for habeas
discriminatory fashion. In support, he offered the results of     relief, with the exception of Smith’s claim that the trial
a statistical study, which he claimed demonstrated racial         court’s refusal to provide him with a defense psychiatric
discrimination in the selection of grand jury forepersons in      expert, as opposed to a neutral psychiatric expert, violated
Hamilton County. He also alleged that he had actually raised      Ake v. Oklahoma, 470 U.S. 68 (1985). Because I believe that
his twenty-fourth ground in his State post-conviction petition    the trial court failed to provide Smith with a mental health
as his thirtieth claim. The district court rejected Smith’s new   expert for the defense as required by Ake, and as interpreted
allegation, holding that it was never presented in state court,   by this Court in Powell v. Collins, 328 F.3d 268 (6th Cir.
and was procedurally defaulted. The court also rejected the       2003), I respectfully dissent on this issue.
claim on the merits. We agree with the district court that this
claim is procedurally defaulted under Ohio’s doctrine of res        I believe that there are three critical considerations in
judicata as stated by the court at 104 F. Supp.2d at 849-50,      assessing Smith’s argument that he should be granted a writ
and its amended order denying Smith’s motion to alter or          of habeas corpus because the state trial court violated Ake, by
amend judgment, dated July 27, 2000. Furthermore, we will         failing to provide him with a psychiatrist to function as a
not overlook the default here, because as the district court      defense expert. First, we must assess whether Smith was
held, the State has never been afforded an opportunity to rebut   entitled to expert psychiatric assistance under Ake, given that
the claim and belated proof.                                      he withdrew his insanity plea prior to trial. Second, if Ake
                                                                  guarantees Smith expert psychiatric assistance, we must
                       IV. Conclusion                             consider whether his right to psychiatric assistance is satisfied
                                                                  by the appointment of a neutral “friend-of-the-court”
  Having completed our responsibility “to ensure that             psychiatrist. Third, if the neutral psychiatrist does not satisfy
Petitioner’s conviction and death sentence comport with the       Ake’s command, we must determine whether the failure to
requirements of our Constitution,” Byrd, 209 F.3d at 540, we      provide Smith with a defense expert psychiatrist was harmless
hereby AFFIRM the judgment of the district court denying          error.
the petition for writ of habeas corpus.
                                                                                                I.
                                                                    In Ake, the Supreme Court held that “when a defendant has
                                                                  made a preliminary showing that his sanity at the time of the
                                                                  offense is likely to be a significant factor at trial, the
                                                                  Constitution requires that a state provide access to a
                                                                  psychiatrist’s assistance on this issue, if the defendant cannot
No. 00-4030                             Smith v. Mitchell     63    64    Smith v. Mitchell                            No. 00-4030

otherwise afford one.” 470 U.S. at 74. The Court went on to         appointment of a psychiatrist when the defendant had not
state that “when a defendant demonstrates to the trial judge        pleaded insanity, but where his mental retardation was his
that his sanity at the time of the offense is to be a significant   strongest argument in mitigation for sentencing purposes.
factor at trial, the State must, at a minimum, assure the           Starr v. Lockhart, 23 F.3d 1280, 1288 (8th Cir. 1994).
defendant access to a competent psychiatrist who will conduct
an appropriate examination and assist in evaluation,                   Many courts have interpreted Ake’s command – to provide
preparation, and presentation of the defense.” Id. at 83.           expert psychiatric assistance when a defendant’s sanity is a
                                                                    significant factor – to mean more than strictly whether or not
  Prior to our opinion in Powell, we noted that Ake requires        the defendant has pleaded not guilty by reason of insanity.
that a defendant be provided with psychiatric assistance            Rather, Ake has regularly been interpreted to require expert
during the sentencing phase if the defendant’s sanity is a          psychiatric assistance any time the defendant’s “mental
significant factor at trial, or if the state presents psychiatric   condition” is shown to be a significant factor at trial. In other
evidence of future dangerousness. Mason v. Mitchell, 320            words, the Supreme Court’s use of the term “sanity” in Ake
F.3d 604, 615-16 (6th Cir. 2003); Skaggs v. Parker, 235 F.3d        was not restricted to occasions when defendants have chosen
261, 272 (6th Cir. 2000); United States v. Osaba, 213 F.3d          to plead insanity, but rather, encompassed all significant
913, 917 (6th Cir. 2000). We had also recognized, however,          issues concerning a defendant’s mental condition. Indeed, in
the possibility that Ake suggests that a defendant is entitled to   Ake itself, the Supreme Court stated that, “when the State has
a competent defense expert. Skaggs, 235 F.3d at 272-73.             made the defendant’s mental condition relevant to his
                                                                    criminal culpability and to the punishment he might suffer,
  We must first address whether Ake’s protections apply to          the assistance of a psychiatrist may well be crucial to the
Smith, given that he withdrew his insanity plea prior to trial.     defendant’s ability to marshal his defense.” 470 U.S. at 80
I believe that Ake still applies. A number of Circuits,             (emphasis added). Many other courts have recognized this
including our own, have interpreted Ake to require expert           reading of Ake as well. See Pizzuto v. Arave, 280 F.3d 949,
assistance beyond psychiatric assistance in conjunction with        963 (9th Cir. 2002) (noting that in Ake, the Supreme Court
an insanity plea. In Terry v. Rees, 985 F.2d 283 (6th Cir.          recognized an indigent defendant’s right to an independent
1993), this Court noted that Ake stands for the proposition         expert when the state makes mental condition relevant);
that criminal trials are fundamentally unfair “if a state           Walker v. Attorney Gen. of Okla., 167 F.3d 1339, 1348 (10th
proceeds against an indigent defendant without making               Cir. 1999) (stating that the Ake inquiry is whether evidence is
certain that he has access to the raw materials integral to         presented to the trial court suggesting that the defendant’s
building a defense.” Terry, 985 F.2d at 284. Accordingly, we        mental condition is likely to be a significant factor); Chaney
held that the trial court violated Ake in denying the               v. Stewart, 156 F.3d 921, 925 (9th Cir. 1999) (“Ake held that
defendant’s request for an independent pathologist in order to      a state must provide indigent criminal defendants with expert
challenge the government’s position as to the victim’s cause        psychiatric assistance if the defendant’s mental condition is
of death. Id. Similarly, the Eighth Circuit has held that the       a significant factor at trial.”); United States v. Roman, 121
rule of Ake applies when the expert in question is not a            F.3d 136, 144 (3d Cir. 1997) (“In Ake, the Supreme Court
psychiatrist, finding “no principled way to distinguish             held that, when a capital defendant demonstrates that his
between psychiatric and nonpsychiatric experts.” Little v.          mental condition is a significant factor at his sentencing
Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987) (en banc).          phase, he is ‘entitled to the assistance of a psychiatrist.’”).
The Eighth Circuit has also held that Ake required the
No. 00-4030                                     Smith v. Mitchell         65     66    Smith v. Mitchell                             No. 00-4030

   Thus, it was apparent, even before our decision in Powell,                    first place is denied the defendant when the services of the
that Ake’s protection extended beyond expert psychiatric                         doctor must be shared with the prosecution.”) In Powell, we
assistance for insanity pleas. However, if any doubt existed                     explicitly adopted this position. 328 F.3d at 284. Thus,
prior to Powell, such confusion has now been addressed.1 As                      because Smith was only provided with a court-appointed
the majority notes, our decision in Powell gives no indication                   neutral expert, Powell requires that we find the state court to
that the petitioner’s sanity was actually at issue during the                    have violated Ake in the present case as well.
trial. Rather, it appears that the petitioner only raised issues
concerning his competence to stand trial and his “mental                            I am not persuaded by the argument that we may ignore
condition.” Nevertheless, we held that the failure to provide                    Powell because its holding is contrary to Ake and Sixth
the petitioner with a psychiatric expert to aid in his defense                   Circuit precedent. Ake did, indeed, state that an indigent
was a violation of Ake. Powell, 328 F.3d at 283-84.                              defendant does not possess a constitutional right to “choose
Accordingly, it is clear that Smith did not remove himself                       a psychiatrist of his personal liking.” 470 U.S. at 83.
from the scope of Ake’s protections by withdrawing his                           However, I do not read this passage from Ake to imply that a
insanity plea. Because Smith’s mental condition was indeed                       defendant is not entitled to a “defense expert,” as opposed to
a significant factor in the state court proceedings, he was                      a neutral expert. This passage from Ake, I believe, is properly
entitled to expert psychiatric assistance.                                       read to state that, of the experts available to testify as a
                                                                                 defense expert, a defendant is not free to choose the expert “of
                                     II.                                         his personal liking,” just as an indigent defendant is not
                                                                                 entitled to the services of the defense attorney of his choice.
   Because I believe that Smith’s mental condition entitled                      In fact, the Ake Court itself stated that the right to psychiatric
him to expert psychiatric assistance under Ake, the next                         assistance must assure the defendant “access to a competent
question is whether Smith’s right to psychiatric assistance                      psychiatrist who will . . . assist in evaluation, preparation, and
was satisfied by the appointment of a neutral psychiatrist.                      presentation of the defense.” Id. I do not believe that the role
Prior to Powell, a number of our sister circuits had held that                   of a court-appointed neutral psychiatrist properly meets this
court appointment of a neutral psychiatrist does not satisfy                     criterion. While Ake does not require that a defendant have
Ake. See Starr, 23 F.3d at 1289-91; Smith v. McCormick,                          access to the psychiatrist of his choice, it does require access
914 F.2d 1153, 1157 (9th Cir. 1990) (holding that the right to                   to a psychiatrist who will assist in the defense. A court-
psychiatric assistance recognized by Ake “does not mean the                      appointed neutral expert is not a defense expert.
right to place the report of a ‘neutral’ psychiatrist before the
court; rather it means the right to use the services of a                          Thus, I believe that the holding of Powell is not in conflict
psychiatrist in whatever capacity defense counsel deems                          with Ake, nor is it in conflict with any of the cases in our
appropriate”); United States v. Sloan, 776 F.2d 926, 929 (10th                   circuit that cite Ake for the proposition that a defendant is not
Cir. 1985) (“The essential benefit of having an expert in the                    entitled to the assistance of the psychiatrist of his choice.
                                                                                 Because I would find that the denial of a defense psychiatric
                                                                                 expert violated Smith’s rights under Ake and Powell, I now
    1
                                                                                 turn to the question of whether this was harmless error.
     It is noteworthy that the district court’s tho rough and articulate
opinion in this case was issued before this Court issued its decision in
Powell. Thus, the district co urt did not have the b enefit of considering the
precedential value of Powell when ruling on Smith’s petition.
No. 00-4030                             Smith v. Mitchell     67    68   Smith v. Mitchell                            No. 00-4030

                              III.                                  doubt” about the harmlessness of the error, O’Neal v.
                                                                    McAninch, 513 U.S. 432, 437 (1995). The defense
  In Powell, we found that the trial court’s denial of an Ake       appropriately concluded that Smith’s best argument at
expert was not harmless error because “Dr. Schmidtgoessling         mitigation would be to focus on his mental condition.
was not equipped to conduct the appropriate examination             However, without the aid of an expert to testify on Smith’s
required for her to set forth all of the facts or information the   behalf, the defense was unable to properly put this argument
jury should have considered at mitigation.” 328 F.3d at 287.        before the sentencing court. Accordingly, I would grant
Similarly, in the present case, Dr. Schmidtgoessling                Smith’s request for a writ of habeas corpus based on the
acknowledged that she functioned in the case as a friend of         state’s failure to provide him with a defense psychiatric expert
the court, rather than as an advocate for Smith. She testified      in mitigation.
that, as a member of the defense side, in mitigation, her role
would be to look for factors to try to explain Smith’s behavior
and save his life. In contrast, however, as a friend of the
court, her role was simply “to perform psychological or
psychiatric evaluations that the attorneys would then decide
how does that fit into their defense strategy. We don’t start
out looking for things that are mitigating . . . .” The majority
opinion correctly notes that Dr. Schmidtgoessling’s testimony
was presented at mitigation; it, however, fails to take note of
the legal consequence of Dr. Schmidtgloessing’s appearance
as a neutral expert, rather than a defense expert. See ante, at
n.9     From her own admission it is clear that Dr.
Schmidtgloessing saw her role as a “friend of the court.”
This, I contend, fails to meet the requirement established in
Ake.
  We found in Powell that the testimony of a defense expert
may have provided facts and information to consider at
mitigation that may have led to a different sentence for the
defendant. Id. The facts of this case lead me to the same
conclusion.      Smith endured an exceedingly difficult
childhood. He spent time living with abusive foster parents,
was diagnosed with diffuse cerebral dysfunction, and spent
time in a juvenile psychiatric facility where, among other
things, he received electric shock therapy. Given this history,
the lack of expert assistance to which Smith was entitled
under Ake “had such a substantial and injurious effect or
influence in determining” the sentencing decision, Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993), that I have “grave
