By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

           The Ninth Circuit improperly ignored the weight of aggravating evidence in finding that a death-sentenced defendant was prejudiced under Strickland’s standard for ineffective assistance of counsel, the U.S. Supreme Court held May 30 in Thornell v. Jones.


           Danny Jones killed a father, his child, and the child’s grandmother in order to steal the father’s gun collection.

           Under Arizona law at the time, the trial judge was required to impose a death sentence if it found one or more statutory aggravating circumstances and no mitigating circumstances “sufficiently substantial to call for leniency.”

           The trial court found four aggravating factors – that the murders involved multiple homicides, pecuniary gain, were heinous, cruel or depraved, and involved a young child.

           The court heard mitigating evidence about Jones having been abused as a child, his substance abuse, head injuries, and mental health history.  The court also heard a court-appointed psychiatrist who testified about Jones’ having been physically abused, his head trauma, genetic predisposition to substance abuse, and Bipolar Disorder.

           The trial court found four mitigating factors – substance abuse, genetic predisposition and head trauma, being under the influence of alcohol or drugs at the time of the murders, and abuse as a child.

           However, the trial court found the mitigating factors were not “sufficiently substantial” to outweigh the aggravating factors, so sentenced Jones to death.

           The Arizona Supreme Court affirmed.

           Jones sought state postconviction review on grounds counsel was ineffective in failing to retain an independent neuropsychologist rather than rely on the court-appointed psychiatrist.

           The Arizona courts rejected Jones’ claim.

           In federal habeas, the District Court ruled Jones could not show prejudice because the additional neuropsychological evidence would have “barely” altered the sentencing profile presented to the trial judge.

           But the Ninth Circuit reversed.  It found there was a “reasonable probability” that Jones would not have received a death sentence.

           The Ninth Circuit’s opinion only briefly mentioned aggravating factors, and did not consider the State’s rebuttal evidence.

           Ten judges dissented from en banc review for, among other reason, the panel decision’s failure to defer to the Arizona courts on the Strickland prejudice inquiry.


           The Supreme Court, in a 6-3 opinion by Justice Alito, reversed.

           Strickland held that a defendant is prejudiced only if there is a there is a “reasonable probability” that absent counsel’s errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death, the Court said.

           “A reasonable probability is a probability sufficient to undermine confidence in the outcome”, the Court said.  “That requires a substantial, not just conceivable, likelihood of a different result.”

           Although a defendant does not have to show that a different result is “more likely than not”, this difference “should matter only in the rarest case”, the Court said.

           “To determine whether a prisoner satisfied this standard, a court must consider the totality of the evidence before the judge or jury – both mitigating and aggravating.”

           The Ninth Circuit “failed adequately to take into account the weighty aggravating circumstances in this case”, the Court said. 

           The panel’s initial opinion “did not mention those circumstances at all” and only briefly mentioned them in an amended opinion after the State petitioned for rehearing.

           The Ninth Circuit failed to give the aggravating circumstances “the weight that they almost certainly would be accorded by an Arizona sentencing judge”, the Court said.

           The Ninth Circuit also applied a “strange” Circuit rule that prohibits a court in a Strickland case from assessing the relative strength of expert witness testimony, the Court said. 

           “This rule is unsound”, the Court said.  “Determining whether a defense expert’s report or testimony would have created a reasonable probability of a different result if it had been offered at trial necessarily requires an evaluation of the strength of that report or testimony.”

           The Ninth Circuit also erroneously ruled that the District Court erred by attaching diminished persuasive value to Jones’ mental health conditions because it saw no link between those conditions and his conduct when he committed the murders, the Court said.

           Eddings v. Oklahoma (1983) held that a sentencer may not “refuse to consider” mitigating circumstances, not that it cannot find them unpersuasive, the Court said.

           The Court rejected Jones’ argument that a habeas petitioner should be entitled to relief whenever he presents “substantial evidence” that a “reasonable sentencer might deem relevant to the defendant’s moral culpability.”

           Such a rule “is squarely at odds with the established understanding of prejudice, which requires a reasonable probability of a different result”, the Court said.

           A “proper” application of Strickland shows that “the aggravating factors presented here are extremely weighty”, the Court said.  “As a result, there is no reasonable probability that the evidence on which Jones relies would have altered the outcome at sentencing”, the Court said.

           The Court noted that Jones’ new evidence presented no “real link between Jones’ disorders and the murders” and the evidence “would have done him little good in the Arizona courts.”

           There is “no reason to think” that Jones’ evidence “would have meaningfully changed how the state court viewed the case,” the Court said.

           Jones identifies “no cases in which the Arizona Supreme Court has vacated the judgment of death in a case involving multiple murders – let alone a case involving all of the aggravating circumstances present here”, the Court said.  “The absence of such a case strongly suggests that Jones has no reasonable probability of escaping the death penalty.”

           And although Jones presented a new allegation of sexual abuse in federal court, this “allegation is entirely unsubstantiated”, the Court noted.

           Finally, the Ninth Circuit erroneously applied Supreme Court precedents finding prejudice.  In each of the opinions cited by the Ninth Circuit, defense counsel had introduced “little, if any, mitigating evidence”, and the sentencer “found only a few aggravating circumstances”, the Court said.

Dissenting Opinions

           Justice Sotomayor, joined by Justice Kagan, dissented in part.

           They agreed the Ninth Circuit erroneously “all but ignored” the aggravating circumstances, but said the majority “unnecessarily goes further and engages in the reweighing itself.”

           “It is not the Court’s usual practice to adjudicate either legal or predicate factual questions in the first instance,” they said.

           Justice Jackson dissented on grounds the majority was mistaken that the Ninth Circuit had ignored aggravating circumstances. 

           “To be sure, the Ninth Circuit’s discussion of the aggravating factors was concise”, Jackson said.  “But there is no benchmark length for any such discussion.”