Steven Mobley was charged with murder and armed robbery. During the trial, the evidence against him was overwhelming.
His lawyer focused on the sentencing phase in efforts to save him from the death penalty he was facing.
This was a difficult proposition as traditional mitigation evidence was slim. Investigation of Mobley's background revealed a difficult child who lied, cursed, cheated, hit and stole things from other kids. He was also known to set fires and be cruel to animals.
Such behavior led to evaluation and treatment by a number of psychologists and social workers. Review of these records revealed a boy with no intellectual deficits who was impulsive, manipulative and self-centered. There were no signs of psychosis. Diagnosis was conduct disorder manifested by a lack of a true value system. In short a nasty kid, but not a crazy kid.
Also, there was no history of physical or sexual abuse, no birth trauma or significant medical problems. Mobley's family denied alcoholism. Nor was poverty an issue. Mobley's standard of living ranged from middle class to affluent.
While Mobley's parents were noted to be "inconsistent" and his mother described as "perfectionistic" reasonable parenting and discipline appeared established and maintained.
In his continued search for mitigation of Mobley's behavior, his lawyer came upon a study performed in the Netherlands which focused on familial genetic predisposition for violence. This study was the first time researchers had discovered a genetic disturbance directly related to violent or antisocial behavior.
Further investigation into Mobley's family history revealed a number of relatives in the last three generations who had exhibited marked aggressive and antisocial behavior.
When the trial court denied Mobley's request for funding to hire a geneticist to conduct similar studies to those done in the Netherlands, Mobley's father offered to pay for genetic testing himself.
Mobley's lawyer declined this offer as he felt there was only a slim chance that such testing would be conclusive. He also felt that family testimony as to their relatives propensities would be just as effective in presenting a genetic defense. Furthermore, counsel felt that the trial court's denial of funds might constitute reversible error and he wanted to preserve this issue for appeal.
Mobley was convicted and sentenced to die. Mobley appealed based on ineffective counsel.
The death sentence was vacated by the Georgia Superior Court who found Mobley's trial counsel was ineffective primarily for not accepting Mobley's father's offer to fund a geneticist who could offer scientific evidence on his son's behalf.
The State appealed.
Holding: The Georgia Supreme Court reinstated Mobley's death sentence. In order to prevail on a claim of ineffective counsel there must be a showing of both deficient performance and actual prejudice. Counsel's performance must not be reasonable given the totality of the circumstances. Such a determination cannot be based on hindsight.
The Supreme Court held that trial counsel's investigation of the defendant's background for mitigating evidence to be more than adequate. He had subpoenaed and carefully reviewed every available childhood record, conducted extensive interviews with professionals, and questioned most available family members, including Mr. Mobley himself. Mitigating evidence was just not there. The court concluded that the decision regarding genetic testing was a reasonably strategic one and even if it had not been, the presence of one flawed reason among so many, does not render a counsel's performance ineffective.
| William M. Tendy, Jr., Esq. Criminal Law Attorney Tendy and Cantor |
Attorney Tendy comments: Every trial attorney's nightmare is having a case he handled overturned on appeal for ineffective assistance of counsel. This case however, does not meet that standard. Yet that is not to say that Mobley's defense can't be criticized.
This perspective stems from decisions made based upon what they did not know rather than what they did. The defense asked the court for funds to do the genetic testing which may truly have uncovered a genetic predisposition to violent behavior. When the funding was denied by the court, the family offered to pay for the tests. To turn down this offer is inconsistent with the original application made to the court. To continue with the genetic defense without the testing puts a jury in a position of guessing at a result that could have been available. Counsel failed to conduct the tests for fear of an unfavorable result thus undermining the goal of this defense which should be the goal of our system: justice based upon truth.
But what if a search for the truth truly uncovers no facts or issues that would mitigate a defendant's behavior? What does a lawyer do then?
This is where the art of attorney comes into play. The attorney must become the mitigating factor.
A lawyer may ask, even beg for mercy but jurors insist on punishment. In a capital case, many will feel that the death sentence is the appropriate punishment.
To convince a jury to choose imprisonment instead of death, the harshness and terribleness of prison must be made real. The jury must be made to imagine how it would feel to spend the rest of one's life in a room the size of a bathroom, told when to get up, when to go to bed, and what to do every waking moment until they die.
If a lawyer can convey this picture, this is truly effective lawyering and mitigation for one's client.
