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Date: 10-28-2021
Case Style:
MARCUS BERNARD WILLIAMS V. STATE OF ALABAMA
Case Number: 1:07-cv-1276-KOB
Judge: KARON OWEN BOWDRE
Court: IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Huntsville, AL- Criminal defense lawyer represented defendant with capital murder, burglary and attempted rape charges.
On November 6, 1996, Mr. Williams returned home after a night of drinking
and smoking marijuana with friends. Williams v. State, 795 So. 2d 753, 761 (Ala.
Crim. App. 1999). Upon arriving home, he desired to have sexual relations with a
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young female neighbor, Melanie Dawn Rowell. Mr. Williams entered Ms. Rowell’s
apartment through an unlocked window, then proceeded to her bedroom where he
climbed on top of her and attempted to remove her clothes. Ms. Rowell struggled
to stop him, so he strangled her until she was motionless, then had sexual
intercourse with her for fifteen to twenty minutes. Id. at 761-62.
Ms. Rowell’s cause of death was asphyxia due to strangulation. Mr. Williams
stole Ms. Rowell’s purse before leaving her apartment. He was later arrested and
taken into custody for the burglary and attempted rape of Lottie Turner on
November 24, 1996. While in custody for that burglary, Mr. Williams gave
incriminating statements admitting his involvement in Ms. Rowell’s death. DNA
testing confirmed that semen and blood found at the Rowell crime scene were
consistent with Mr. Williams’s genetic profile. Id. at 762, 766-67.
II. PROCEDURAL HISTORY
Court-appointed attorneys Erskine Funderburg and Tommie Wilson
1
represented Mr. Williams at trial. (Vol. 4, Tab 27 at 2). Because of the
overwhelming evidence of Mr. Williams’s guilt, his attorneys argued only that,
although he intended to rape Ms. Rowell, he did not intend to kill her. (Vol. 3, Tab
11 at 494-504). Despite their efforts, on February 24, 1999, the jury found Mr.
1 Ms. Wilson died on March 6, 2015. (See Doc. 84-84).
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Williams guilty of capital murder for intentionally causing the death of Ms. Rowell
during a rape or attempted rape, in violation of Alabama Code § 13A-5-40(a)(3)
(1975). (Vol. 4, Tab 14 at 534-36).
The penalty phase of Mr. Williams’s trial was held the next day, before the
same jury. (See Vol. 3, Tab 15 - Tab 24). Trial counsel called only two witnesses,
Mr. Williams’s mother, Charlene Williams, and his aunt, Eloise Williams. (Vol. 3,
Tab 19). The Eleventh Circuit Court of Appeals summarized their testimony:
Charlene Williams told the jury that she was sixteen years old and
unmarried when Mr. Williams was born, and that Mr. Williams had
faced certain difficulties as a child. For example, she testified that Mr.
Williams sometimes lived with her grandmother and aunt; had no
relationship with his father and lacked adult male figures in his life;
and had to stop playing school sports after injuring his knee. Mr.
Williams’s counsel also elicited testimony that portrayed him in a
negative light, such as the fact that he was a high school dropout; he
“started hanging with a rough crowd”; he got kicked out of the Job
Corp[s] for fighting; and upon returning home, he stopped going to
church and “wanted to sleep all day and stay up all night.” FN.1.
FN.1. A capital defendant’s history of violent and
aggressive behavior is generally considered an
aggravating factor. See Holsey v. Warden, 694 F.3d 1230,
1269-70 (11th Cir. 2012).
Eloise Williams also testified about Mr. Williams’s unstable
home life. She told the jury that he had moved from place to place as a
child and lived with different family members; he became sad and
withdrawn at times because he did not see his mother often; he had
been a good student with no significant criminal history; and he had
struggled emotionally after the deaths of his grandfather and uncle.
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However, as with Charlene, counsel also elicited evidence from Eloise
that was likely more harmful than helpful. For example, Eloise told the
jury that Mr. Williams had a quick temper; he had been arrested for
fighting as a teenager; FN.2, he had not maintained regular
employment after leaving high school; and not long before the crime,
he started drinking and using drugs. Eloise ended on a positive note,
telling the jury that since Mr. Williams had been in jail, he had stayed
out of trouble and expressed remorse for his crime.
FN.2. The fact that Mr. Williams’s counsel told the jury
about these adolescent brushes with the law is noteworthy
because the State could not have offered evidence of Mr.
Williams’s juvenile arrests to establish any aggravating
factors. In Alabama, “juvenile charges, even those that
result in an adjudication of guilt, are not convictions and
may not be used to enhance punishment.” Thompson v.
State, 503 So.2d 871, 880 (Ala.Crim.App. 1986) aff’d
sub nom. Ex parte Thompson, 503 So.2d 887 (Ala.
1987).
Neither Charlene nor Eloise was asked about Mr. Williams’s
history of sexual abuse.
Williams, 791 F.3d at 1269-70. The jury deliberated only thirty minutes before
returning an 11 to 1 verdict, recommending that Mr. Williams be sentenced to
death. (Vol. 3, Tab 24 at 596-97).
At the April 6, 1999 sentencing hearing, Mr. Williams testified, expressing
his remorse. (Vol. 4 at 607-11). The victim’s mother, Donna Rowell, testified about
the impact of her daughter’s death on the family, especially Ms. Rowell’s young
children. (Id. at 604-06). The trial court found one aggravating circumstance–that
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Mr. Williams killed the victim while committing or attempting to commit a rape,
robbery, burglary, or kidnapping. (Id. at 630). The trial court found as mitigating
factors Mr. Williams’s lack of a criminal history, his unstable home life as a child,
his frustration from an injury ending his hopes of an athletic career, his obtaining a
GED, and his remorse. (Id. at 631-38). The trial court found the aggravating factor
outweighed the mitigating factors, and sentenced Mr. Williams to death. (Id. at
639).
The Alabama Court of Criminal Appeals affirmed Mr. Williams’s conviction
and death sentence on December 10, 1999. See Williams v. State, 795 So. 2d 753
(Ala. Crim. App. 1999). The Alabama Supreme Court affirmed his conviction and
sentence on January 12, 2001. See Ex parte Williams, 795 So. 2d 785 (2001). The
United States Supreme Court denied certiorari review on October 1, 2001. See
Williams v. Alabama, 535 U.S. 900 (2001).
In August, 2004, Mr. Williams filed an amended Rule 32 petition in the trial
court. The trial court denied the Rule 32 petition on the merits, without holding an
evidentiary hearing. (Vol. 13, Tab 59). The Alabama Court of Criminal Appeals
affirmed the denial of Rule 32 relief. (Vol. 13, Tab 60).
In 2007, Mr. Williams filed the present § 2254 petition in this court, arguing
inter alia, that trial counsel were ineffective for failing to conduct an adequate
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mitigation investigation. (Doc. 5 at 40-65). This court denied the petition on April
12, 2012. See (Docs. 27, 28). The Eleventh Circuit Court of Appeals remanded the
case, instructing this court to “determine whether Mr. Williams is entitled to an
evidentiary hearing and to reconsider his failure-to-investigate claims de novo.”
Williams, 791 F.3d at 1277.
Mr. Williams filed a motion for an evidentiary hearing on March 3, 2017.
(Doc. 51). On October 4, 2017, the court granted Mr. Williams’s motion for an
evidentiary hearing on his failure-to-investigate claims. (Doc. 60).
This court held an evidentiary hearing on May 14-16, 2018. Mr. Williams
testified at the evidentiary hearing, and presented the testimony of the following
witnesses: Tina Watson, the legal secretary for Tommy Wilson, Mr. Williams’ trial
counsel who was deceased at the time of the evidentiary hearing; Erskine
Funderburg, Mr. Williams’ trial counsel; Billy Stephens, the person Ms. Wilson
purportedly sought to hire as a mitigation investigator; Sharenda Williams and
LaCharo Williams, Mr. Williams’ sisters; Eloise Williams, Mr. Williams’ aunt;
Charlene Williams, Mr. Williams’ mother; and Marlon Bothwell, Mr. Williams’
childhood friend. Mr. Williams also called two experts, clinical psychologist Dr.
Matthew Mendel and neuropsychologist Dr. Kenneth Benedict, as mitigation
witnesses. The State of Alabama presented expert testimony from Dr. Glen King.
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The court paid close attention to the testimony, and carefully reviewed the transcript
of the evidentiary hearing, along with the exhibits presented at the hearing. (Docs.
91-93).
The court entered its initial Memorandum Opinion and Order denying habeas
relief under 28 U.S.C. § 2254 (docs. 94 & 95), and Mr. Williams filed a motion to
reconsider under Fed. R. Civ. P. 59 (doc. 98). The court granted the motion to
reconsider because it made a manifest error of law in assessing Mr. Williams’
future dangerousness in weighing the mitigating and aggravating circumstances and
vacated its initial Memorandum Opinion and Order denying relief. (Doc. 102).
Now, after careful and thorough reconsideration, the court will GRANT Mr.
Williams’ habeas motion for ineffective assistance of counsel on all of the failureto-investigate claims EXCEPT counsels’ failure to interview Mr. Williams’ closest
friend Alister Cook, failure to investigate his family history of mental illness, and
failure to present his redeeming characteristics because Mr. Williams has failed to
show prejudice on these three claims.
III. LEGAL STANDARD
To determine whether counsel were ineffective, the court begins with the
instruction from Strickland v. Washington, 466 U.S. 668 (1984). The Supreme
Court established a two-pronged analysis for determining whether counsel’s
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performance was ineffective. “First, the defendant must show that counsel’s
performance was deficient. . . . Second, the defendant must show that the deficient
performance prejudiced the defense.” Id. at 687.
A petitioner must establish both parts of the Strickland standard: that is, a
habeas petitioner bears the burden of proving, by “a preponderance of competent
evidence,” that the performance of his trial or appellate attorney was deficient; and,
that the deficient performance prejudiced his defense. Chandler v. United States,
218 F.3d 1305, 1313 (11th Cir. 2000) (en banc).
A. The Performance Prong
To satisfy the performance prong, a petitioner must establish by a
preponderance of the evidence that counsel’s performance was unreasonable.
Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007) (citing
Chandler, 218 F.3d at 1313). Deficient performance is “‘representation [that]
f[alls] below an objective standard of reasonableness.’” Hardwick v. Sec’y, Fla.
Dep’t of Corr., 803 F.3d 541, 551 (11th Cir. 2015) (citing Strickland, 466 U.S. at
688).
The Sixth Amendment does not guarantee a defendant the very best counsel
or the most skilled attorney, but only an attorney who performed reasonably well
within the broad range of professional norms. Stewart, 476 F.3d at 1209. The court
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does not consider “what the best lawyers would have done”; instead the court must
determine “whether some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial.” White v. Singletary, 972 F.2d
1218, 1220 (11th Cir. 1992).
Judicial scrutiny of counsel’s performance must be highly deferential,
because “[r]epresentation is an art, and an act or omission that is unprofessional in
one case may be sound or even brilliant in another.” Strickland, 466 U.S. at 693.
Indeed, reviewing courts “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 689. This
strong presumption of competent assistance creates a heavy burden of persuasion:
“petitioner must establish that no competent counsel would have taken the action
that his counsel did take.” Stewart, 476 F.3d at 1209 (quoting Chandler, 218 F.3d
at 1315) (emphasis added). The court can grant relief on ineffectiveness grounds
only if a petitioner shows that “no reasonable lawyer, in the circumstances, would
have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
This court’s review of counsel’s performance must not be made with the
benefit of hindsight. As the Eleventh Circuit has instructed, “[t]he widespread use
of the tactic of attacking trial counsel by showing what ‘might have been’ proves
that nothing is clearer than hindsight—except perhaps the rule that we will not
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judge trial counsel’s performance through hindsight.” Waters v. Thomas, 46 F.3d
1506, 1514 (11th Cir. 1995).
When examining counsel’s performance at the penalty phase of trial, the
court must decide “‘whether counsel reasonably investigated possible mitigating
factors and made a reasonable effort to present mitigating evidence to the
sentencing court.’” Stewart, 476 F.3d at 1209 (quoting Henyard v. McDonough,
459 F.3d 1217, 1242 (11th Cir. 2006)). To meet the requirements of Strickland,
counsel does not need to investigate “every conceivable line of mitigating evidence”
regardless of its likelihood of benefitting the defendant at sentencing. Pittman v.
Sec’y, Florida Dep’t of Corr., 871 F.3d 1231, 1250 (11th Cir. 2017) (quoting
Wiggins v. Smith, 539 U.S. 510, 533 (2003)).
In fact, the Strickland standard does not even “require defense counsel to
present mitigating evidence at sentencing in every case.” Id. Rather, the Strickland
standard for counsel’s performance is “reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688. And, of course, reasonableness depends upon
the context of the particular case. Wiggins v. Smith, 539 U.S. 510, 522-23 (2003).
So, the district court must make a case-by-case determination regarding whether a
mitigation investigation was reasonable under the facts of that particular case.
Hardwick, 803 F.3d at 552.
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Counsel’s failure to present mitigating evidence is not per se ineffective
assistance of counsel; “it can, on occasion, be justified as a strategic choice.”
Hardwick, 803 F.3d at 551 (citing Lightbourne v. Dugger, 829 F.2d 1012, 1025
(11th Cir. 1987)). “Strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable . . . .” Strickland,
466 U.S. at 690 (emphasis added). So, counsel’s decision not to investigate or
present mitigating evidence is “only reasonable, and thus due deference, to the
extent that it is based on a professionally reasonable investigation.” Hardwick, 803
F.3d at 551.
B. The Prejudice Prong
A petitioner also must meet a high burden to establish that his lawyer’s
deficient performance caused prejudice to his case. Van Poyck v. Fla. Dep’t of
Corr., 290 F.3d 1318, 1322 (11th Cir. 2002). The petitioner does not meet that high
burden merely by showing “that the errors had some conceivable effect on the
outcome of the proceeding.” Id. (citing Strickland, 466 U.S. at 693). Instead, a
petitioner must show “‘a reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.’” Stewart, 476 F.3d at 1209 (quoting
Strickland, 466 U.S. at 695). “A reasonable probability is a probability sufficient to
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undermine confidence in the outcome, which is a lesser showing than a
preponderance of the evidence.” Sealey v. Warden, Georgia Diagnostic Prison,
954 F.3d 1338, 1360 (11th Cir. 2020) (internal quotation marks and citations
omitted) (quoting Strickland, 466 U.S. at 694).
In evaluating whether the petitioner has shown a reasonable probability that,
if counsel had not been deficient the petitioner would not have been sentenced to
death, the court must “consider ‘the totality of the available mitigation evidence –
both that adduced at trial, and the evidence adduced in the habeas proceeding’ –
and ‘reweig[h] it against the evidence in aggravation.’” Porter v. McCollum, 558
U.S. 30, 41 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 397-398 (2000));
see also Sears v. Upton, 561 U.S. 945, 956 (2010) (holding that a proper prejudice
analysis under Strickland must take into account the newly uncovered mitigation
evidence, along with the mitigation evidence introduced during the penalty phase of
the trial, to assess whether a reasonable probability arises that the petitioner would
have received a different sentence after a constitutionally sufficient mitigation
investigation).
IV. THE EVIDENTIARY HEARING
In his amended petition, Mr. Williams alleges that trial counsel were
ineffective during the penalty phase of the trial because they failed to adequately
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investigate and present mitigation evidence to show that he should not have been
sentenced to death. (Doc. 5 at 38-65).
Specifically, he claims in his amended petition that trial counsel were
ineffective because they failed to conduct an adequate mitigation investigation into
Mr. Williams’ background, including their failure to collect documentary evidence
and hire a mitigation specialist; failure to thoroughly investigate Mr. Williams’s
history, including that he was sexually abused as a child; failure to interview Mr.
Williams’s closest friend Alister Cook
2
; failure to adequately interview and prepare
the penalty phase witnesses; failure to compile Mr. Williams’s history of abuse and
neglect; failure to investigate his family history of mental illness; failure to show
that Mr. Williams’s background contributed to his committing capital murder; and
failure to present his redeeming characteristics. (Id.).
Mr. Williams called witnesses at the evidentiary hearing who testified to the
facts that he claims trial counsel should have discovered and presented during the
penalty phase of Mr. Williams’ trial. And, Mr. Williams also called two experts,
clinical psychologist Dr. Matthew Mendel who specializes in child sexual abuse,
2 Described as “Marcus’ closest friend[] during the period leading up to his arrest,”
Cook and Mr. Williams had been friends since they were eight or nine years old. (See Doc.
5 at 49). Mr. Williams and Cook had been drinking together the night of the murder. (Id. at
47).
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and neuropsychologist Dr. Kenneth Benedict, as mitigation witnesses to explain the
effects of the sexual abuse, alcoholism, abandonment and overall family
dysfunction on Mr. Williams. The State of Alabama presented expert testimony
from Dr. Glen King to counter Mr. Williams’ experts’ opinions. Both sides also
submitted evidentiary materials, including Mr. Williams’ trial counsels’ files and
the experts’ written opinions.
Mr. Williams argues that if counsel had performed an adequate penalty phase
mitigation investigation, they would have learned and been able to present the
following evidence:
A. Sexual Abuse by an Older Boy
Mr. Williams testified at the evidentiary hearing that, between the ages of
four and six, he was sexually abused three or four times by an older boy Mario
Mostella, while he and his mother Charlene lived with the Mostella family. (Doc.
91 at 118-20). Mr. Williams’ amended habeas petition indicates that Mario was
“then about age fifteen” when he “repeatedly subjected [Marcus] to anal rape.”
(Doc. 5). Mr. Williams testified at the evidentiary hearing that “Mario is probably
about ten years older.” (Doc. 91 at 123). Mr. Williams did not know the exact year
that Mario was born but just knew Mario was older than Mr. Williams. (Id. at 128).
And Dr. Mendel’s report indicates that Mr. Williams estimated that Mario was
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about ten years older than Mr. Williams, making Mario about fourteen to sixteen
years old at the time of the abuse. (Doc. 87-1 at 117). Mr. Williams’ sexual abuse
by Mario occurred at times when Mario was at least an age to babysit Mr. Williams.
(Doc. 91 at 203).
Eloise Williams testified that she thought Mario was “maybe six or seven” or
“maybe ten” when Mr. Williams and Charlene moved in with the Mostella family,
but did not know Mario’s true age. Charlene testified at the evidentiary hearing that
Mario was “like eight or nine” when she and Mr. Williams moved in with the
Mostellas. (Doc. 92 at 162). Eloise described Mario as being on the “rough side”
and “in and out of trouble . . . a bully, pushy,” and Charlene described Mario as
“just being a bad, bad little boy or so.” (Doc. 92 at 111-112, 162).
Mr. Williams testified that all but one of the instances of sexual abuse by
Mario occurred in Ashville, Alabama in an old shack called Bachelor’s Kip behind
the Mostella’s home when Mario was babysitting him. Mr. Williams testified that
one of the instances of sexual abuse occurred in “Ohio.” Eloise Williams testified
that Charlene and Mr. Williams moved out of state with the Mostellas to Ohio at
some point when Marcus was younger. (Docs. 91 at 119-120 & 92 at 114). But
Charlene testified that she and Mr. Williams went to visit the Mostellos in Missouri,
not Ohio, and ended up staying for about four months. (Doc. 92 at 216-217).
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Mr. Williams stated that at the time the abuse was happening, he thought it
was a game when Mario Mostella would “touch” and “penetrate” him from behind
while Charlene was away. (Id.). Mr. Williams testified at the evidentiary hearing
and told Dr. Benedict that Mario would “touch my groin area and have me touch
him in the same area” but only Mario penetrated Mr. Williams from behind. (Docs.
87-1 at 87 & 91 at 119). But Mr. Williams told Dr. Mendel that “I don’t remember
[Mario] asking me to touch him.” (Doc. 87-1 at 118). And Mr. Williams told the
State’s expert Dr. King that the sexual abuse by Mario involved “anal penetration of
Mr. Williams and also of Mario” and that the abuse by Mario involved “you do me
and I do you.” (Doc. 85-2 at 4).
Dr. Mendel described Mario’s actions as “pretty classic grooming behavior.”
(Doc. 93 at 165). Dr. Mendel stated in his report that at the time Mr. Williams was
being molested by Mario, Mr. Williams “did not think there was anything wrong
with what was going on.” (Doc. 84-31 at 5). But Dr. Mendel explained that by the
time Mr. Williams became sexually active with a female at the age of ten he began
to feel shame about Mario’s sexual abuse of him. (Doc. 93 at 52). Mr. Williams
testified at the evidentiary hearing that he felt shame, was depressed, and had
thoughts of hurting and killing himself as a result of the sexual abuse by Mario.
(Doc. 91 at 121).
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While he lived with Eloise after his sexual abuse by Mario, Mr. Williams was
“sullen, withdrawn, unhappy,” and had issues with bed-wetting. (Id. at 125-26).
Charlene testified that Mr. Williams started wetting the bed “between five and six
or something like that.” (Doc. 92 at 166). Dr. Benedict stated that bed-wetting
was “another factor associated with [Mr. Williams’] shame and lack of control.”
(Doc. 87-1 at 84). And Mr. Williams reported to Dr. King that he started having
nightmares at the age of seven or eight about “either falling off a cliff or drowning”
that would occur once or twice a week. (Doc. 85-2 at 6).
Dr. Mendel testified that he assessed Mr. Williams’ account of sexual abuse
by Mario “with the greatest level of skepticism,” especially where Mr. Williams did
not tell anyone until after his criminal charges. (Doc. 93 at 85). But Dr. Mendel
found Mr. Williams’s account of his childhood sexual abuse “extremely credible”
and testified that he has no doubt that it happened even though Mr. Williams did
not tell anyone about the sexual abuse until around 2005 because he was ashamed
and did not think that his mother would believe him. Dr. Mendel also testified that
“if there was not the sexual abuse, particularly by Mario, if there was not the sexual
abuse, we would not be sitting here today.” And Dr. Mendel opined that “if the
sexual abuse hadn’t happened, there would not have been sexual violence. I believe
that very strongly . . . .” (Docs. 92 at 121 & 93 at 85-86, 120).
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Dr. Mendel explained that male victims of sexual abuse are much less likely
to disclose their abuse; the length of time between sexual abuse in males and
eventual disclosure is much longer; and people are more likely to suspect sexual
abuse in female victims. (Doc. 93 at 74). Dr. Mendel stated in his report that
“[m]ale victims often do not tell about their sexual abuse until they enter either the
justice system or substance abuse treatment.” (Doc. 84-31 at 5). He concluded that
“the fact that [Mr. Williams] did not tell about his abuse is not at all unusual and
should not be considered a counter-indication of the presence of sexual abuse.”
(Doc. 84-31 at 5).
Mr. Williams points out that consistent with other male victims who finally
disclose childhood abuse after entering the justice system, he shared details of his
sexual abuse with the first attorney who asked him about it. (Doc. 88 at 95-96). Mr.
Williams testified that trial counsel never asked him if he had been sexually
abused, but that if counsel had asked, he would have told them:
Q. Why did you tell [Rule 32 counsel] about what had happened to
you during your childhood when you previously had not talked
about it?
A. He asked me about it. And I didn’t, at first, I didn’t tell him
anything. And over time, I got comfortable, more comfortable
with him and he asked me about it again and that’s when I told
him.
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Q. Why didn’t you tell your trial lawyers about sexual abuse and
about some of the things you have told the Court here today
about your background?
A. They didn’t ask.
(Doc. 91 at 122).
Mr. Williams told Dr. Mendel that he became sexually active at the young
age of ten and was promiscuous throughout his adolescence and early adulthood
because he wanted to prove to himself that he is not gay. (Id. at 6). Dr. Mendel
testified that prepubescent sexual intercourse is “the biggest red flag” indicating
sexual abuse. (Doc. 93 at 124). Dr. Mendel also opined that Mr. Williams became
hypersexual, having from one hundred fifty to two hundred sexual partners by the
time he was arrested, in an effort to prove that he is not gay. (Doc. 93 at 55-56).
Mr. Williams was also exposed to sexuality by his family members. While
they lived with the Mostellas, Mr. Williams bathed with Charlene and shared a bed
with her. (Doc. 92 at 165). Dr. Benedict, a neuropsychologist specializing in
developmental psychopathology, testified that Mr. Williams was “also exposed to
adult sexual relations when living with his mother, when she would have . . . her
boyfriends in the same bed that she shared with” Mr. Williams, although Mr.
Williams said that he did not actually witness his mother having sexual relations.
(Doc. 91 at 176). Dr. Benedict reported that Mr. Williams would wake up in his
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mother’s bed “to find other men in the same bed . . . indicating that premature
exposure to adult sexuality occurred very early in his life.” (Doc. 87-1 at 87).
Mr. Williams testified that when he was about ten years old, his teenage
cousin Brian Williams “allowed [Mr. Williams] to watch him have sex as a way of
showing [Mr. Williams] how to do it with a woman.” (Doc. 91 at 120). Dr. Mendel
testified that Mr. Williams told him that Brian was “always talking about sex and
telling him about sex.” (Doc. 93 at 64). Dr. Mendel explained that premature
exposure to sexuality “basically tends to feed hypersexualization. So you get these,
basically you get these kids who are thinking about sex and wanting to do and
explore sexual things before they are physically, psychological or emotionally ready
to do that. They’re not adults.” (Id. at 65).
Mr. Williams also engaged in other sexually inappropriate behavior. In his
affidavit, Dr. Benedict stated that Mr. Williams told him that when he was a child
he would sneak outside to peep on his mother’s friends while they used the
outhouse. (Doc. 84-33 at 12). Eloise testified that while Mr. Williams lived with
her, she once caught him peeping at her through the bathroom door. (Doc. 92 at
127). Charlene testified that when Mr. Williams was fifteen, Lottie Turner told her
that Mr. Williams was “peeping in her window.” (Id. at 184).
Dr. Mendel testified that Mr. Williams’s sexual promiscuity reassured him
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that he was not gay and made Mr. Williams feel like a man. (Doc. 93 at 58). Dr.
Mendel opined that Mr. Williams’s lack of a serious girlfriend made it less likely
that he would tell anyone about his sexual abuse. (Id. at 84). Dr. Mendel explained
in his report that because male victims who fear they might be gay after being
sexually abused often try to compensate for their fears by becoming stereotypically
“macho,” Mr. Williams’s compensatory hyper-masculinization resulted in
aggressive and violent behavior in his pre-teen years. (Doc. 84-31 at 7).
Mr. Williams’s compensatory hyper-masculinization continued into his
teenage years. Mr. Williams’ friend Marlon Bothwell testified that Mr. Williams
was bullied in high school and often got into fights after school. (Doc. 93 at 10-20).
Marlon recalled that Mr. Williams became more aggressive after a fight in which
Mr. Williams was slammed, head-first, into the ground. (Id. at 13).
Mr. Williams dropped out of high school in his senior year. (Doc. 91 at 103).
He joined the Job Corps, but was kicked out for fighting. (Doc. 93 at 60-61). Dr.
Mendel stated in his report that when Mr. Williams returned home to Ashville after
being kicked out of Job Corps, he was “drinking constantly, always drunk, with a
pervasive sense of hopelessness and despair he had felt only once previously in his
life, in the aftermath of his knee surgery during his senior year of high school.”
(Doc. 84-31 at 9). Dr. Mendel further stated in his report that the “critical factors in
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Marcus’ progression toward his crimes were his chronic states of hypersexuality
and of aggression, which fused together in his acts of sexual violence; the acute
state of hopelessness secondary to his expulsion from JobCorps;3
along with
alcohol as a disinhibiting agent.” (Id.).
Mr. Williams maintains that exploring his sexual abuse history was especially
important because, as Dr. Mendel testified, a large number of people who commit
acts of sexual violence were themselves sexually abused. See (Docs. 84-31 at 9 &
93 at 122). Mr. Williams argues that although childhood abuse is particularly
mitigating in capital cases, counsel’s failure to investigate his background meant the
jury never heard “this account of [his] psychological trajectory from an abusive
childhood to sexual violence.” (Doc. 88 at 87).
At the evidentiary hearing, Mr. Funderburg justified his decision not to
present evidence concerning Mr. Williams’s “future dangerousness” or propensity
for sexual violence, including that eighteen days after Mr. Williams committed the
rape and murder of Ms. Rowell, he attempted to rape Lottie Turner:
Q. Is it also fair to say that you would want to avoid any testimony
that might show or tend to show the future dangerousness of
your client, like he’s going to do it again?
3 Mr. Williams maintains that he killed Melanie Rowell only ten days after his
expulsion from Job Corps. (Doc. 88 at 86).
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A. In this case?
Q. Yes.
A. Yes. We had another crime that had occurred that we had to
keep out. Marcus had been involved in a similar act from when
this case occurred until his arrest.
So, at the time he was found guilty of this, we, I think, entered
into a plea agreement on the other charge as well, which the
State tried to get it in, but we were able to keep it out.
Q. You wouldn’t have wanted, certainly, to offer any testimony that
might tend to indicate that your client was predisposed to sexual
violence?
A. Absolutely not.
Q. And in that judgment that might have made a jury even more
likely to give death, fair to say?
A. Yes, that’s one of the biggest reasons we did not want to call
Marcus in the case, even though he had given statements, we
couldn’t put him up on the stand and run the risk of that other
conduct somehow coming in.
(Doc. 91 at 76).
Mr. Williams argues that counsel’s failure to present available evidence of
sexual abuse was not a strategic choice because counsel failed to ask Mr. Williams
or anyone else about sexual abuse and failed to “conduct any reasonable
investigation” of Mr. Williams’s background. (Doc. 88 at 88). Mr. Williams
maintains that if counsel had investigated and presented evidence of Mr. Williams’s
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childhood sexual abuse, the jury would have had “powerfully mitigating context for
his behavior.” (Doc. 88 at 89). Mr. Williams points out that the Eleventh Circuit
Court of Appeals has held that sexual abuse evidence is not a “double-edged
sword,” Williams v. Alabama, 791 F.3d at 1277, and that “‘both the Supreme Court
and [the Eleventh Circuit] have recognized the long-lasting effects child sexual
abuse has on its victims.’ Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248,
1276 (11th Cir. 2016) (citing Kennedy v. Louisiana, 554 U.S. 407, 435 (2008);
United States v. Irey, 612 F.3d 1160, 1207 (11th Cir. 2010) (en banc)).” (Doc. 88
at 89).
Mr. Williams adds that his arrest for breaking into Lottie Turner’s house and
attempting to rape her “is entirely consistent with the portrait of [his] psychological
unraveling, stemming from his childhood sexual abuse.” (Doc. at 89-90). Mr.
Williams points to the portion of his confession to the murder in which he wrote, “I
have a problem and I want help.” (Id. at 90) (quoting Doc. 84-11 at 39). He
concludes that without the context of Mr. Williams’s history of childhood sexual
abuse, the jury was given no explanation for his “confounding, and harmful,
behavior,” which allowed the jury to sentence him to death for an “awful, and
apparently inexplicable, crime.” (Doc. 88 at 90).
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B. Extensive Family History of Childhood Sexual Abuse
Mr. Williams points out that under the ABA Guidelines applicable at the time
of his trial, “counsel had a duty to collect information pertaining to ‘family and
social history (including physical, sexual or emotional abuse),’ and to ‘obtain names
of collateral persons or sources to verify, corroborate, explain and expand upon
[the] information obtained.’” (Doc. 88 at 90) (quoting Williams v. Allen, 542 F.3d
at 1339) (citing 1989 ABA Guidelines 11.4.1(D)). He explains that “several
interviews are often necessary to bring out all the relevant information, particularly
when sensitive matters such as child abuse or sexual abuse are involved.” (Id.)
(quoting Alabama Capital Defense Trial Manual, at 588 (3d ed. 1997)). Mr.
Williams contends that if trial counsel had investigated his background, they would
have learned the following details about childhood sexual abuse and incest in his
family.
In his report, Dr. Mendel detailed the pervasive history of sexual abuse of
children by older relatives in Mr. Williams’s family. Dr. Mendel stated that Mr.
Williams’s great-grandmother, Beulah, was reportedly raped by her uncle; his
grandmother Laura’s first child was fathered by her cousin; his aunt Veronica was
molested as a child by her aunt’s boyfriend; and his cousin Brian Williams, in
addition to allowing Mr. Williams to watch him having sex with girls, molested Mr.
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Williams’s sister LaCharo and his cousin Zakia Fomby. (Doc. 84-31 at 6). Charlene
testified that when LaCharo was “about twelve,” she told her that Brian Williams
“tried to molest her.” (Doc. 92 at 190). Despite Brian “den[ying] it all,” Charlene
tried to talk to the police about it, but “didn’t get to talk to the police” because
“there wasn’t none at the station where [she] went.” (Id. at 190-91).
Dr. Mendel testified that he was “struck by the level of sexual abuse across
multiple generations” of Mr. Williams’s family. (Doc. 93 at 40). He stated that in
evaluating Mr. Williams, he considered the history of sexual abuse in Mr.
Williams’s family because it “very much runs in families.” (Id. at 68). He added
that a family history of sexual abuse is a risk factor for future sexual abuse by the
victim. (Id. at 74). Mr. Williams argues that Brian Williams’s abuse of LaCharo
and Zakia lends credibility to Mr. Williams’s account of Brian’s inappropriate
behavior, and confirms that Brian’s sexual interactions with Marcus were
predatory, not playful or minor. (Doc. 88 at 93).
Mr. Williams asserts that his family history of sexual abuse, and the lack of
intervention by the adults in his family, provides context for his own abuse, and
explains his reluctance to disclose his own sexual abuse as a child. (Id. at 94). Dr.
Mendel testified that the family’s unresponsiveness to other instances of sexual
abuse “affects the degree of disclosure or the likelihood of disclosure.” (Doc. 93 at
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69). Dr. Mendel opined that Mr. Williams and other victims in his family feared
that they would not be believed if they reported their abuse. (Id. at 69-70; Doc. 84-
31 at 6). Dr. Mendel contends that if Mr. Williams’s trial attorneys had conducted
in depth interviews with him and his family, as required under the ABA Guidelines,
they too would have learned about the sexual abuse in his background and family
history. (Doc. 93 at 96).
C. Family History of Alcoholism Contributed to Mr. Williams’s
Early and Excessive Use of Alcohol
Mr. Williams asserts that he was raised in a family of alcoholics. (Doc. 88 at
72). Eloise testified that when she married into the Williams family, she “learned
that they did a lot of drinking and partying.” (Doc. 92 at 99). Mr. Williams’s greatgrandmother, Beulah Williams, with whom he lived from time to time, was unable
to properly care for the children left with her. (Doc. 91 at 146, Doc. 92 at 155).
Beulah, described as a good person who “did like to drink and party,” worked
through the week, but got drunk on the weekends, to the point that she became
incoherent and would pass out or urinate on herself. (Doc. 92 at 100, 152, Doc. 91
at 146).
Eloise testified at the evidentiary hearing that almost all of Beulah’s family,
including Eloise’s husband Robert, had problems with drinking. (Doc. 92 at 106-
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07). Sharenda testified that during the times she and Mr. Williams spent with Eloise
and Robert, Robert was a heavy drinker who “drank probably almost every day at
some point,” to the point of intoxication. (Doc. 91 at 147). And Sharenda testified
that Robert, who was angry with Mr. Williams for walking away from the stove
while grease was heating on the stove, walked Mr. Williams over to Eloise’s
daycare, argued with and grabbed Mr. Williams, and body slammed Mr. Williams
to the ground. (Doc. 91 at 148-149).
Charlene testified that she was a heavy drinker from the age of fifteen until
she was “like about thirty-two,” having been influenced to drink by Beulah and
other relatives who drank excessively. (Doc. 92 at 155-56). Charlene drank mostly
on the weekends, sometimes to the point of intoxication. (Doc. 91 at 141; Doc. 92
at 156). She drank while she lived with the Mostellas,4
and she drank while she was
in a relationship with Jeff Deavers who was abusive towards her. (Doc. 92 at 112;
Doc. 91 at 140). Dr. Mendel stated in his report that Charlene’s “pattern of drinking
and going out rather than watching her children left Marcus susceptible to Mario’s
sexual predation.” (Doc. 84-31 at 8).
Mr. Williams’s childhood friend, Marlon Bothwell, testified that he and Mr.
4 Eloise testified that while Charlene and Mr. Williams lived with the Mostellas,
Charlene and Olivia Mostella “were still partying and doing different things, drinking,
leaving the children.” (Doc. 92 at 112).
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Williams began drinking probably between the ages of twelve and fourteen, but Mr.
Williams’s alcohol consumption increased so much when he was about sixteen or
seventeen that he often saw Mr. Williams drunk. (Doc. 93 at 15-17). Dr. Mendel
testified that Mr. Williams “was drinking heavily by his high school years” and
began drinking “much more following a couple of very negative difficult
experiences in his life.” (Id. at 77). Dr. Mendel stated in his report that, because
alcoholism runs in families, Mr. Williams’s “alcohol abuse and likely dependence
are probably ‘multiply-determined,’ stemming from a familial pattern of alcoholism
as well as Marcus’ specific traumatic life circumstances.” (Doc. 84-31 at 8).
Dr. Mendel explained that alcoholism often runs in families because of the
modeling and example shown by family members drinking. (Doc. 93 at 75-76). He
added that “people generally accept that there is a genetic basis for a predisposition
towards addiction, including alcoholism.” (Id. at 76). Dr. Glen King, a clinical
psychologist who testified on behalf of the State of Alabama, testified that “but for
[Mr. Williams’s] substance abuse, in terms of this crime, I don’t think we would be
here.” (Doc. 92 at 86). Dr. Mendel agreed with Dr. King’s conclusion that “if there
wasn’t the alcohol, we wouldn’t – this wouldn’t have happened and we wouldn’t be
here today.” (Doc. 93 at 82).
Mr. Williams argues that by failing to investigate and present expert
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testimony at the penalty phase on both his and his families excessive use of alcohol,
counsel deprived the jury of this critical explanation for his conduct. (Doc. 88 at
77). He argues that, although Mr. Funderburg testified that the defense theory for
the penalty phase of the trial was that Mr. Williams was not in his right mind
because of alcohol and marijuana use, he presented “paltry” evidence about Mr.
Williams’s substance abuse. (Id.) (citing Doc. 91 at 90).
Mr. Williams points out that, although counsel asked Charlene two questions
“conceivably related to alcohol use” in the penalty phase, those questions were not
helpful because they pertained to Mr. Williams’s time in Job Corps, not during his
childhood or the time of the crime. (Id.) (citing Vol. 3, Tab 19 at 557). Mr.
Williams also points out that during the penalty phase, Eloise offered, without being
asked about alcohol or drugs, that she “began to notice he had changed – drinking,
you know and maybe drugs.” (Id.) (citing Vol. 3, Tab 19 at 565).
Mr. Williams argues that “without any specifics of when Marcus began
drinking, and with no explanation for why Marcus was drinking–such as his genetic
predisposition to alcoholism, the excessive drinking modeled by close relatives who
reared him, and his traumatic childhood experiences–the jury was left to conclude
that Marcus’s drinking, which was only vaguely mentioned, was merely a personal
failing.” (Id.) He maintains that counsel was unreasonable for failing to investigate
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and present available evidence of Mr. Williams’s family history of substance abuse.
(Id.)
D. Childhood Defined by Chaos, Abandonment, and Abuse
Charlene testified that Mr. Williams, her second child, was born when she
was sixteen years old. (Doc. 92 at 158-59). Before he was born, his older sister
Aquea was sent to New York to live with her paternal grandmother, and never
returned to live with Charlene. (Id. at 159-60). His father, Michael Daniels, was not
involved in his life when Mr. Williams was “small,” but “became involved later on
in life,” when he was around thirteen or fourteen. (Id. at 161).
During his early years, Charlene and Mr. Williams “bounced from place to
place.” (Doc. 88 at 53). They lived with Charlene’s grandparents, Ralph and Beulah
Williams, in “the old house,” a dilapidated house without a bathroom, heating, air
conditioning, or hot water (Doc. 92 at 116, 206); they lived with family friends,
Della and Will Bothwell (Doc. 93 at 7, 23); they lived with Charlene’s friend Olivia
Mostella and her three children in Ashville, Alabama (Doc. 92 at 161-62); and they
moved to Missouri with the Mostellas for about four months. (Id. at 166-67).
Eloise Williams testified that when Charlene and Mr. Williams lived with the
Mostellas, Charlene and Olivia left the children alone at home with Olivia’s elderly
mother while they went out partying and drinking. (Doc. 92 at 112). Mr. Williams
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testified that when they lived with Olivia, her son, Mario Mostella, sexually abused
him three or four times, over the course of “a couple of years,” beginning at the age
of four. (Doc. 91 at 118-19). When they returned to Ashville, Charlene lived with
her grandmother for a while; with Mary Mostella, Olivia Mostella’s mother, for a
while; moved into an apartment in Gadsden; then finally moved back to Ashville.
(Id. at 167-68).
During this time, Charlene gave birth to three more children. (Id.). When Mr.
Williams was around nine years old, Charlene began a six-year relationship with
Jeff Deavers, who was physically and verbally abusive to her, “sometimes” in front
of Mr. Williams. (Doc. 92 at 170-74). Mr. Williams testified that one time when he
was twelve or thirteen years old, he saw Mr. Deavers strike Charlene with his bare
hands. In response, Mr. Williams “grabbed a knife and tried to stab him.” (Doc. 91
at 118). Although Mr. Williams previously told Dr. Benedict that Mr. Deavers was
the one with the knife, the state’s expert Dr. King testified that discrepancy was not
a “significant difference in the dynamics of that event.” (Doc. 92 at 59).
Charlene had poor parenting skills: she left the children to fend for
themselves; they were not supervised appropriately; and at times, they were not
clean or “well taken care of.” (Id. at 117). During the time period when Mr.
Williams was around five to ten years old, family members tried to help Charlene
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by taking her children in to live with them. (Id. at 117-21).
Eventually, when Mr. Williams was about seven or eight years old, Charlene
abandoned Mr. Williams and could no longer care for him. So, he moved in with
his aunt Eloise Williams. (Id. at 119, 169). During this time, Mr. Williams moved
back and forth between the homes of his great grandmother, Beulah Williams, his
aunt Elvis, his aunt Veronica Fomby, and his aunt Eloise Williams. (Docs. 91 at
116 & 92 at 169). Eloise took him to Sunday School and church, helped him with
his homework, and allowed him to play baseball. (Doc. 92 at 119-20, 124-26).
Mr. Williams lived with Eloise on and off until he was twelve or thirteen
years old. (Id. at 127). Eloise testified that when Mr. Williams was in middle
school, he started getting in trouble at school, “getting in fights, stealing and just
different things.” (Doc. 92 at 126-27). At one point, Eloise caught him peeping
through the bathroom door at her. (Id. at 127). When Mr. Williams was twelve or
thirteen years old, Eloise took him back to live with Charlene because he wanted to
live with his mother. (Doc. 92 at 127). Eloise testified that Charlene was not happy
about Mr. Williams living with her and that he stayed with Charlene “not very
long.” Mr. Williams then went to live with his Aunt Elvis Williams and then “he
went floating around to different places after that.” (Doc. 92 at 128).
When he was fourteen years old, Mr. Williams finally met his father, Michael
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Daniels, and moved in with him for about nine months. (Doc. 91 at 116). Dr.
Mendel testified at the evidentiary hearing that Mr. Williams had “wondered about,
questioned, struggled and worried about” his father his entire life, hoping that the
reason his father never came to visit him was because he did not know Mr.
Williams existed. (Doc. 93 at 42).
Mr. Williams argues that rather than investigating his family history and
presenting “available evidence of Marcus’s abandonment by his mother, as well as
the itinerant and dysfunctional lifestyle he was subject to while he was with her,”
trial counsel elicited testimony in the penalty phase from Charlene, minimizing the
instability in Mr. Williams’s life, and leaving the jury with the impression that he
“spent lots of time with his mother.” (Doc. 88 at 65).
Specifically, Mr. Williams points to the following portions of Charlene’s
testimony in the penalty phase:
Q. Where was [Mr. Williams] when he wasn’t with you?
A. He lived with my grandmother and my aunt. They helped me
because I was a young girl.
. . . .
Q. Prior to this time, had Marcus been a problem child to
you in any way?
A. No, he had never been.
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Q. Did you spend a lot of time with him when he was
growing up?
A. Yes. Marcus was the baby for five and a half years.
(Id.) (quoting Vol. 3, Tab 19 at 554, 558).
He adds that at the sentencing hearing, Eloise testified only generally about
Marcus being “left from one place to another” and not “hav[ing] a stable home.”
(Id.) (quoting Vol. 3, Tab 19 at 561). Mr. Williams argues that the penalty phase of
his trial contained no testimony about the “domestic violence and abuse” he
experienced in the various places he lived. (Id.). Mr. Williams argues that the
testimony presented at the evidentiary hearing paints a “vastly different picture of
his background” than the limited testimony presented at his trial. (Id. at 65-66)
(quoting Williams v. Allen, 542 F.3d at 1342).
E. Extensive Family History of Dissolution and Dysfunction
Mr. Williams alleges that compounding the failure to thoroughly investigate
and present evidence of his “dysfunctional upbringing,” trial counsel also failed to
present available evidence of his “troubled family history.” (Doc. 88 at 66). He
claims that the dysfunction of his childhood was part of an “easily discernable
pattern.” (Id.). Charlene testified that she, her sister, and her brother were raised by
their grandparents, Ralph and Beulah Williams; she did not meet her father until she
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was three years old; her mother, Laura Williams, “moved away to New York” and
never contacted her after she left; and that her mother died a violent death when
Charlene was twelve years old. (Doc. 92 at 148-51, 193).
Charlene became sexually active at age thirteen, became pregnant with Mr.
Williams’s older sister at the age of fourteen, and started drinking at age fifteen. (Id.
at 155-57). Charlene eventually gave birth to Mr. Williams and three more children,
LaCharo, and twins, Sharenda, and Sharay, all of whom were raised in different
homes. (Id. at 167-68). Mr. Williams maintains that the “distance created by
Charlene’s abandonment and separation of her children made it difficult for them to
bond, and develop loving relationships, as a family.” (Doc. 88 at 70).
Mr. Williams’s sister Sharenda Williams testified at the evidentiary hearing
that she and Mr. Williams “did spend time together” during Mr. Williams’s teenage
years after he left Aunt Eloise’s home. (Doc. 91 at 150). She clarified that they
spent a minimal amount of time together because after being adopted by her Aunt
Eloise, she lived a “much more strict lifestyle” and was “very involved in church.”
(Id.). Mr. Williams’s sister LaCharo Williams testified at the evidentiary hearing
that because of their age difference her relationship with Mr. Williams did not really
develop until after he was arrested. (Doc. 92 at 214).
Mr. Williams contends that the “treatment that Marcus and his siblings
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received from caregivers reinforced this sense of distance.” (Doc. 88 at 71).
Sharenda testified at the evidentiary hearing that their uncle Robert Williams was
“very strict” with Mr. Williams, while he treated her “like a girl,” letting her get
away with anything. (Doc. 91 at 148).
Mr. Williams adds that although “the circumstances of all of Charlene’s
children were precarious, [his] nomadic existence was especially so.” (Doc. 88 at
71). Mr. Williams points out Dr. Mendel’s testimony from the evidentiary hearing:
I think that the chaos, the lack of stability and the sense of
abandonment, betrayal, the contrast he experienced in his life from
seeing why was my younger sister adopted by this aunt, this great aunt,
and not me. Why was my other younger sister kept and raised by our
mother and not me, why was my younger brother adopted by this
family, unrelated family down the road and raised in a stable
household, why was my older sister taken in by her father and raised in
a – I don’t know much about that family, but at least a relatively
consistent home, and why was I bounced around.
He experienced a sense of being unwanted, rejected, abandoned,
betrayed throughout his life, and I think that’s had an enormous impact
on him.
(Id.) (quoting Doc. 93 at 41-42).
Mr. Williams asserts that defense counsel should have investigated and
presented evidence of his dysfunctional family history because conditions within
the family can influence a defendant’s upbringing and experiences. (Doc. 88 at 71-
72) (citing Kormondy v. Sec’y, Fla. Dep’t of Corr., 688 F.3d 1244, 1251 (11th Cir.
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2012) (explaining that, during penalty phase proceedings in 1994, “[the
defendant’s] life story actually began with [his mother’s] story about her life prior
to [his] birth because, according to Dr. Larson, what she had experienced prior to
that event had a profound effect on the person [the defendant] eventually became”).
He points out that courts have held that failing to investigate and present available
evidence of a “chaotic, abusive, neglectful family” was deficient. (Doc. 88 at 72)
(citing Johnson v. Bagley, 544 F.3d 592, 605 (6th Cir. 2008) and Frierson v.
Woodford, 463 F.3d 982, 989 (9th Cir. 2006) (“[A] failure to investigate and
present, at the penalty phase of a capital trial, evidence of . . . a dysfunctional family
or social environment may constitute ineffective assistance of counsel.”)).
Mr. Williams argues that his life was impacted by the “early sexual activity,
excessive alcohol use, neglect and abandonment of children, and frayed familial
bonds” that persisted generation after generation in his family. He contends that,
with the evidence of his troubled family history, counsel “could have described the
cycles of generational abusive and neglectful parenting that repeat the same
behaviors and lead to the same outcomes.” (Doc. 88 at 72) (quoting Johnson, 544
F.3d at 605). He maintains that counsel were deficient for failing to present the
available evidence of his dysfunctional family history to the jury. (Doc. 88 at 72).
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F. Psychologically Damaging Childhood Experiences
Dr. Benedict testified that the following risk factors present in Mr.
Williams’s early life increased the likelihood that Mr. Williams would have a “bad
outcome in life”: the family history of intergenerational sexual abuse; being born
out of wedlock to a teenage mother who did not have help with parenting; the
family’s limited resources and conditions that would constitute poverty or would
border on poverty; very poor boundaries in the family with respect to sexuality and
drinking; exposure to adult sexuality and adult substance abuse at a young age;
being sodomized or sexually molested as a child; Mr. Williams’s own precocious or
early sexual activity; and his early use of alcohol. (Doc. 91 at 167-68, 175-78). Dr.
Benedict concluded that Mr. Williams’s greatest risk factor was the “lack of
consistent caretaking by his mother with whom he tried to establish a relationship
and wanted a relationship with, you know, to the present day, but her inconsistency
and the various reunions and separations from her.” (Id. at 175).
Dr. Benedict also testified that Mr. Williams’s childhood sexual abuse was
traumatic. (Id. at 181). Dr. Mendel testified that Mr. Williams was “groomed” into
sexual activity at a young age, and taught that it was a secret. (Doc. 93 at 49-51,
100-01). Dr. Benedict testified that being molested at a young age by someone older
“comes with the kind of power differential that characterizes abusive situations,
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sexual or physical aggression or emotional aggression.” (Doc. 91 at 181). Dr.
Mendel explained that even before Mr. Williams knew that what was happening
with Mario was inappropriate, he knew it was something he should hide:
[T]he time that Marcus says that he came close to telling was when on
– after one of the incidents of sexual abuse, he and Mario came out of
the – that shack, the Bachelor’s Kip and Marcus’ mother, Mario’s
mother and I believe Mario’s sister were walking toward them and
asked, one of them asked, they all asked, what were you guys doing in
there.
I think independently Marcus would have blurted out exactly
what they were doing, but instead, Mario said something, Mario lied,
said, oh, we were, you know, doing whatever in there, Marcus doesn’t
recall exactly what. So that’s why he didn’t tell at that point.
As time went on and he got more of a sense that this was sexual,
this was shameful, this was something to be embarrassed about, he
did, as most male victims do, which is to keep it – keep it hidden.
(Doc. 93 at 51).
Dr. Benedict testified that the instability in Mr. Williams’s childhood, and his
inability to develop an attachment with a primary caretaker were traumatic for him.
(Id. at 180). Dr. Mendel testified that Mr. Williams had a “lot of anger toward his
mother for not being there,” and that the “chaos, the abandonment, the betrayal, the
loss, the lack of stability, [and] the lack of predictability” were the “biggest factor[s]
in his childhood.” (Doc. 93 at 44, 118).
Dr. Benedict testified that it was very difficult for Mr. Williams to reconcile
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the different expectations his various caretakers had of him:
It’s very difficult for a child and even teenagers to experience
such radically different sets of expectation in parenting styles.
So, if there are essentially very few boundaries, very few rules
and very limited oversight in the home of his mother, we heard
testimony today about the very strict and regimented environment he
grew up or he experienced when he was living with [his aunt Eloise
Williams].
It’s very difficult for kids to reconcile those differences and to
know what message to take.
(Doc. 91 at 180-82).
Dr. Benedict explained that Mr. Williams was also exposed to “general
disinhibited behavior that would take a number of forms in his life,” including
exposure to relatives with serious drinking problems, and exposure to domestic
violence between his mother and her long time boyfriend, Jeff Deavers. (Doc 91 at
181-82). Dr. Benedict concluded that, as a result of these traumatic experiences,
Mr. Williams turned to alcohol, hypersexuality, and hypermasculine aggression as a
way to “guard against some psychological problem.” (Id. at 183-84).
Mr. Williams argues that despite trial counsel’s knowledge that he “was not
in his right mind” at the time of the crime, counsel “presented no expert testimony
to explain his psychological trajectory from a childhood of abuse to commission of
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the crime.”
5
(Doc. 88 at 101). Instead, counsel “painted an incomplete and
unhelpful picture” at the penalty phase, by relying on limited testimony that never
mentioned Mr. Williams’s family history of domestic violence, alcoholism, and
sexual abuse. (Id.).
Mr. Williams also faults trial counsel for failing to present expert testimony
to give a favorable opinion as to his “capacity for rehabilitation.” (Id.). Both Dr.
Benedict and Dr. Mendel testified that treatment was available, including when
Marcus was a child, to ameliorate the damage from his traumatic experiences, and
that Marcus would have benefitted from such treatment. (Doc. 91 at 182, 197-98;
Doc. 93 at 63-64). Dr. Mendel opined that if Mr. Williams had been able to discuss
his traumatic experiences with someone, “we would have seen way less dramatic
and self-destructive and destructive to others acts on [Mr. Williams’s] part.” (Doc.
93 at 62-63).
Dr. Benedict testified that Mr. Williams’s psychological condition has
improved significantly since his discussions with experts and his attorneys while he
has been incarcerated. (Doc. 91 at 194). In addition, Dr. Mendel and even Dr. King,
the State’s expert, both testified that, but for alcohol, Marcus’s crime would not
5 Trial counsel Erskine Funderburg testified that in mitigation, counsel were arguing
that Mr. Williams was “not in his right mind but not because of a mental disease, it was
because of the alcohol and the marijuana.” (Doc. 91 at 90).
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have happened. (Doc. 92 at 86; Doc. 93 at 82).
V. ANALYSIS
Mr. Williams argues that counsel were deficient in failing to investigate and
present the potentially mitigating evidence he presented at the evidentiary hearing,
and that he was prejudiced by counsel’s failures. He maintains that he was
“cooperative and willing to assist in his defense”; that he offered to “provide
information about his background, but counsel w[ere] unresponsive”; and that his
friend and family were “available and willing to provide mitigating information, but
they were not contacted or interviewed.” (Doc. 90 at 10). Mr. Williams argues that
absent counsel’s errors, counsel would have been able to present several more nonstatutory mitigating circumstances pertaining to his excruciating life history,
including sexual abuse, alcoholism, abandonment, and poverty. (Id. at 32-34). He
argues that in light of this new mitigating evidence, taken as a whole, a reasonable
probability exists that the jury would have reached a different result. (Id. at 35). For
the following reasons, this court agrees.
A. Deficient Performance
Mr. Williams claims that counsel were deficient for failing to investigate and
present at the penalty phase non-statutory mitigating evidence about his
background, including his prior sexual abuse by an older male, his family history of
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sexual abuse, his family history of alcoholism, and his family cycle of overall chaos
and dysfunction. This court agrees that counsels’ performance was deficient for
failing to reasonably investigate Mr. Williams’ background for mitigation.
The Supreme Court has held that, based on standards applicable in 1999
when Mr. Williams was tried, attorneys representing capital defendants were
obligated “to conduct a thorough investigation of the defendant’s background.” See
Wiggins v. Smith, 539 U.S. 510, 524 (2003) (finding that counsel’s mitigation
investigation “fell short of the standards for capital defense work articulated by the
American Bar Association (ABA)—standards to which we long have referred to as
‘guides to determining what is reasonable’”). Counsel’s failure to conduct an
adequate background investigation or to pursue all reasonably available mitigating
evidence can satisfy Strickland’s deficient performance prong. Wiggins v. Smith,
539 U.S. 510, 524 (2003); Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1351
(11th Cir. 2011).
To determine whether trial counsel conducted a reasonable background
investigation or made a reasonable decision to not conduct a background
investigation, the court must “put itself in counsel’s shoes, review the information
of which he was or should have been aware, and determine what a reasonable
attorney would have done under those circumstances.” Hardwick v. Sec., Fla.
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Dep’t of Corrections, 803 F.3d 541, 552 (11th Cir. 2015) (citing Strickland, 466
U.S. at 690). This court must “assess ‘all the circumstances’ and ‘consider whether
the known evidence would lead a reasonable attorney to investigate further.’” See
Frazier v. Bouchard, 661 F.3d 519, 531 (11th Cir. 2011) (quoting Powell v. Allen,
602 F.3d 1263, 1273 (11th Cir. 2010)). So, the court must consider what Mr.
Williams’ counsel knew about him, his criminal charges, and his background and
“what counsel then failed to do and learn about [Mr. Williams] and his childhood
background.” See Hardwick, 803 F.3d at 552.
In Mr. Williams’ case, counsels’ failure to conduct an adequate and thorough
background investigation for possible mitigating circumstances was unreasonable
and deficient. The court will first explain what Mr. Williams’ counsel knew or
should have known about Mr. Williams and his case, including knowledge of
potential sources of mitigation. Then the court will set out in what ways counsel
failed to conduct a reasonable investigation into Mr. Williams’ background and
discuss what mitigation evidence a reasonable investigation would have uncovered.
1. What Counsel Knew or Should Have Known
a. Counsel Knew the Penalty Phase was Pivotal
When the trial court first appointed Ms. Wilson and Mr. Funderburg to
represent Mr. Williams in his capital murder case, they knew or should have known
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that the penalty phase would be pivotal to Mr. Williams’ defense. As the Eleventh
Circuit acknowledged in this case, Mr. Williams’ defense counsel faced
“overwhelming evidence of [Mr. Williams’] guilt.” Williams v. Alabama, 791 F.3d
1267, 1269 (11th Cir. 2015). In light of Mr. Williams’ three detailed statements to
investigators admitting his guilt and the DNA evidence corroborating Mr. Williams’
statements and linking him directly to the crime (doc. 84-25 at 7), no reasonable
attorney would have basically disregarded the penalty phase of the trial and
conducted virtually no background investigation for mitigating evidence.
Where the evidence clearly supports the guilt of a defendant, reasonable
counsel would focus their efforts on the penalty phase of the trial. See Johnson v.
Sec., DOC, 643 F.3d 907, 932 (11th Cir. 2011) (“Given the overwhelming evidence
of guilt, any reasonable attorney would have known, as [counsel] testified he
actually did know, that the sentence stage was the only part of the trial in which
Johnson had any reasonable chance of success.”); Collier v. Turpin, 177 F.3d 1184,
1202 (11th Cir. 1999) (“Although counsel . . . recognized that the sentencing phase
was the most important part of the trial given the overwhelming evidence of guilt,
they presented almost none of the readily available evidence of Collier’s
background and character that would have led the jury to eschew the death
penalty.”).
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Because the penalty phase of Mr. Williams’ trial was pivotal to his case given
the overwhelming evidence of Mr. Williams’ guilt, no reasonable counsel would
have failed to conduct a thorough mitigation investigation into Mr. Williams’
background. See Hardwick v. Sec., Fla. Dep’t Corr., 803 F.3d 541, 552 (11th Cir.
2015) (finding deficient performance and prejudice where “[c]ounsel knew, or
should have known, that Hardwick’s defense in the penalty phase—specifically the
presence or absence of mitigating evidence—would be pivotal”).
And the prevailing norms at the time of Mr. Williams’ trial underscored the
importance of the penalty phase of the trial, especially when a defendant has
confessed to the crime. According to the 1989 ABA Guidelines 1.1, commentary,
in many death penalty cases, “no credible argument for innocense exists, so that the
life or death issue of punishment is the real focus of the entire case.” (Emphasis
added).
Trial counsel knew from the beginning that Mr. Williams’ “life depended on
the penalty-phase presentation.” See Maples v. Comm’r Ala. Dep’t Of Corr., 729
F. App’x 817, 825 (11th Cir. 2018) (finding deficient performance could be based
on counsel’s unreasonably cursory preparation for the penalty-phase when counsel
“knew from the onset that Maple’s life depended on the penalty-phase
presentation.”). Mr. Funderburg admitted at the evidentiary hearing that he knew at
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the outset of the case that Mr. Williams’ confessions would likely be admitted into
evidence, so counsel would “have to prepare for the penalty phase in advance of the
trial.” And Mr. Funderburg testified that knowing “in all likelihood the confession
is going to go in,” counsel would then “focus on mitigation because if you can get a
mitigating factor and convince a jury, then you can get possibly life without [the
possibility of parole].” (Doc. 91 at 52 & 88).
Mr. Funderburg also testified that he ordered the Alabama Capital Defense
Trial Manual that discusses the importance of mitigation evidence for the penalty
phase of a capital murder trial. See (Doc. 91 at 52). That manual explains that,
during the penalty phase of a capital murder trial, counsel “will be faced with giving
an account of how the defendant came to be on trial for life. Defense counsel
cannot do this without a clear understanding of the circumstances and influences
surrounding that life.” Ala. Capital Def. Trial Manual, at 3 (3d ed. 1997)
(emphasis added). So, Mr. Funderburg knew that mitigation evidence and the
penalty phase were key to Mr. Williams’ defense; yet, as the court will discuss in
detail infra, counsel conducted virtually no mitigation investigation.
And the record shows that Ms. Wilson also knew the importance of the
penalty phase and an adequate mitigation investigation in light of Mr. Williams’
confessions and overwhelming evidence of guilt. Ms. Wilson’s case file contains a
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note presumably in her hand-writing that indicates that the primary focus of Mr.
Williams’ case and “best issue” would be to argue for life imprisonment without the
possibility of parole and to avoid the death penalty. See (Doc. 84-26 at 69).
Ms. Wilson also expressed to the trial court in her June 4, 1997 “Ex Parte
Application for Investigative Expenses” the importance of the penalty phase and
counsel’s mitigation efforts. Specifically, she stated that “Defense counsel has an
ethical, legal and constitutional duty to conduct a thorough inquiry into all aspects
of this case,” including any mitigation factors. (Doc. 84-14 at 55) (emphasis
added). Her motion contains a section titled “MITIGATING CIRCUMSTANCES”
in which Ms. Wilson states that the jury and judge will be “constitutionally
required” to consider as mitigating factors “any aspects of [Mr. Williams’]
character or record and any of the circumstances of the offense that [he] proffers on
a basis for a sentence less than death,” including “any of the diverse frailties of
human kind.” (Doc. 84-14 at 56) (quotations and citations omitted).
Ms. Wilson, citing the 1989 ABA Guidelines applicable in death penalty
cases at that time, acknowledged in the motion that counsel must direct an
investigator to “interview people with knowledge of all aspects of Marcus Bernard
Williams’ background” and that an investigator is “essential to obtaining
documentary evidence and discovering mitigating information.” (Doc. 84-14 at 56)
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(emphasis added). Ms Wilson also admitted in that motion that counsel at that
point—about seven months after her appointment to represent Mr. Williams on
November 26, 1996—had not conducted an “adequate investigation into critical
matters relevant to guilt, level of culpability and appropriate punishment.” (Doc.
84-14 & 84-17). She stated in the motion that a “constitutionally sufficient
investigation into these aspects of the life and character of [Mr. Williams] will
require . . . the services of an investigator to assist in the identification of potential
witnesses, and a thorough investigation into [his] past. . . .” (Doc. 84-14 at 57)
(emphasis added). And Ms. Wilson tellingly admitted in the motion that “counsel
would be remiss and constitutionally ineffective if she did not conduct a thorough
investigation of all aspects of Marcus Bernard Williams’ case.” (Doc. 84-14 at
54-58) (emphasis added).
And the trial court granted Mr. Wilson’s motion and awarded counsel
$1,500.00 to hire an investigator to assist with a thorough mitigation investigation
for the penalty phase of Mr. Williams’ trial. The trial judge’s order granting this
relief was “conditioned upon the defendant’s attorney providing to the Court the
name of said investigator to be used and the costs of services to be provided for a
determination of reasonableness.” (Docs. 84-51 at 42, 73 & 91 at 35). As the court
will discuss thoroughly infra, counsel failed to use those funds to hire an
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investigator to assist with mitigation or for any other mitigation efforts.
So, Ms. Wilson and Mr. Funderburg knew and acknowledged that a
mitigation investigation into Mr. Williams’ background and the penalty phase
would play a vital role in their ability to effectively represent him and in fact
obtained court-ordered funds to assist counsel in that mitigation investigation. But,
as discussed thoroughly infra, instead of focusing on the penalty phase of the trial
and conducting a thorough and adequate mitigation investigation into Mr. Williams’
background, counsel unreasonably conducted virtually no mitigation efforts in this
case.
b. Counsel Knew Mr. Williams Wanted Help for His Sexual Crime
Counsel also knew that Mr. Williams’ crime for which he was on trial for his
life involved a rape and murder; that eighteen days after the rape and murder of Ms.
Rowell, Mr. Williams broke into Ms. Turner’s home and attempted to rape her; and
that, at the time he confessed to these sexual crimes, Mr. Williams wrote in his
statement to law enforcement that “I have a problem and I want help.” (Doc. 84-11
at 39).
Mr. Williams’ counsel, knowing the importance of a thorough mitigation
investigation for the penalty phase, would have to explain to the jury how Mr.
Williams came to be on trial for his life for committing the rape and murder. See
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Ala. Capital Def. Trial Manual, at 3 (“counsel will be faced with giving an account
of how the defendant came to be on trial for life”). Given the sexual nature of Mr.
Williams’ crime and his statements to investigators regarding his “problem” in
committing sexual crimes, reasonable counsel would have thoroughly explored why
Mr. Williams stated that he had a “problem” that led him to commit a sexual
offense ; what was the problem; and why he felt that he needed help. When asked
at the evidentiary hearing “Given the sexual nature of the offense, would a full
psychological evaluation have been warranted?” Mr. Funderburg stated “That, I
don’t know.” (Doc. 91 at 48). But a reasonable attorney would have at least
known that the sexual nature of the crime and Mr. Williams’ plea for help for his
conduct warranted some investigation into that issue.
That reasonable investigation would involve at the least questioning Mr.
Williams thoroughly about his prior sexual history, including why he felt that he
had a problem committing sexual crimes; at what age he became sexually active;
whether he had been exposed to any deviant sexual actions as a child; whether he
had been the victim of any improper sexual contact as a child; and whether he had a
history of sexual abuse in his family. To understand how Mr. Williams ended up
committing such a heinous sexual crime and then explain to the jury any mitigating
factors they should consider against the aggravating factor involving a murder in the
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commission of a sexual crime, reasonable counsel would have thoroughly inquired
into Mr. Williams’ background for any explanation for his confessed “problem”
with sexual crimes.
But, as discussed in detail infra, Mr. Williams’ counsel failed to thoroughly
question Mr. Williams or any of his family members regarding any aspect of his
background. Counsel did not ask Mr. Williams, his family, or friends a single
specific or even general question about Mr. Williams’ prior sexual abuse, sexual
history or about any sexual abuse history in the family. That failure was
unreasonable given what counsel knew about the sexual nature of Mr. Williams’
crime and his statement regarding wanting help for his actions.
c. Counsel Knew Alcohol and Marijuana Contributed Greatly to
Mr. Williams’ Crime
Counsel also knew that Mr. Williams’ crime involved his abuse of alcohol
and marijuana. See (Doc. 84-11 at 39). Mr. Williams’ confessed to law
enforcement that “I have let drugs, alchohol [sic], and sex ruin my life.” (Doc. 84-
11 at 39). Mr. Williams stated in another written confession that “I have an
alchohol [sic] and drug problem”; that “too much alchohol [sic] and drugs controled
[sic] my actions”; and that he wanted help for his alcohol and drug issues. (Doc.
84-6 at 25).
And Mr. Funderburg testified at the evidentiary hearing that “I think the peg
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we held our hat on the most was the fact that he had been drinking quite a bit[;] I
believe he had smoked pot most of the day or part of the day.” (Doc. 91 at 75).
Mr. Funderburg also testified that “the mitigation factors” counsel presented
involved Mr. Williams not being “in his right mind” because of “the alcohol and
marijuana.” (Doc. 91 at 232).
In fact, in her opening statement for the penalty phase, Ms. Wilson told the
jury that Mr. Williams had been “drinking and doing drugs that day”; that he
“admitted he had been out drugging that day”; and “but for [Mr. Williams’]
drinking and drugging, none of us would be here today.” (Doc. 84-29 at 13). She
specifically asked the jury to take into consideration as a mitigating factor that Mr.
Williams had been drinking and doing drugs the day of the rape and murder. (Doc.
84-29 at 15).
So, counsel knew that alcohol and drugs played a significant role in Mr.
Williams’ crime and actually wanted the jury to consider this fact as a mitigating
factor. Reasonable counsel with this knowledge would have thoroughly
investigated Mr. Williams’ background for any mitigation factors explaining why
Mr. Williams was under the influence of alcohol and marijuana on the day of the
murder. See Rompilla v. Beard, 545 U.S. 374, 382 (2005) (finding deficient
performance and prejudice where counsel knew from police reports that Rompilla
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had been drinking heavily at the time of the offense and a mental health expert
reported Rompilla’s alcohol issues, but counsel “did not look for evidence of a
history of dependence on alcohol that might have extenuating significance”).
To explain how Mr. Williams ended up raping and murdering a woman while
heavily under the influence of alcohol and drugs, reasonable counsel would have
thoroughly questioned Mr. Williams and his family about what age Mr. Williams
began abusing alcohol and drugs; his history of abusing alcohol and drugs; and any
history of alcoholism or drug abuse in his family. But, as the court will explain in
detail infra, Mr. Williams’ counsel failed to thoroughly investigate Mr. Williams’
background regarding his alcohol and drug issues—the very thing that counsel
sought to present as a mitigation factor. That failure was unreasonable.
2. What Counsel Failed To Do
Under the prevailing professional norms in 1999, Mr. Williams’ counsel had
a constitutional duty to conduct a thorough investigation into his background. See
Williams, 529 U.S. at 396. According to Mr. Funderburg’s testimony at the
evidentiary hearing, Ms. Wilson assumed the primary responsibility for the penalty
phase of Mr. Williams’ trial and that his role in the guilt and penalty phase “would
have been more of experts.” (Doc. 91 at 17). Mr. Funderburg testified that he
subpoenaed some records for and gave the closing statement in the penalty phase,
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but Ms. Wilson filed the motion for a mitigation investigator and conducted the
witness examinations of Charlene and Eloise Williams, the only two witnesses
called during the penalty phase. And, Mr. Funderburg testified that “Tommie was
primarily responsible for mitigation, talking to fact witnesses, local witnesses, [and]
family members. . . .” (Doc. 91 at 17-18, 58).
And in her opening statement at the penalty phase of Mr. Williams’ trial, Ms.
Wilson told the jury that “any life events that influence a person are factors for your
consideration” in mitigation. (Doc. 84-29 at 13). Yet, neither she nor Mr.
Funderburg conducted a thorough investigation into Mr. Williams’ background to
discover those specific life events that negatively influenced his life. See Wiggins,
539 U.S. at 526 (“Though [counsel] told the jury it would “hear that Kevin Wiggins
had a difficult life,” counsel never “followed up on that suggestion with details of
Wiggins’ history.”).
In fact, Mr. Funderburg in his closing statement at the penalty phase, after
counsel called only two family members to testify very scarcely about Mr.
Williams’ background, told the jury “I don’t know what makes a person do certain
things. I don’t know what made Marcus Williams do this in this case.” (Doc. 84-29
at 41). Mr. Funderburg could not offer powerful mitigating circumstances to
explain Mr. Williams’ actions because counsel failed to thoroughly investigate Mr.
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Williams’ background to discover any such mitigation evidence. Counsel failed to
discover important mitigating factors that could give the jury some explanation of
how Mr. Williams ended up on trial for his life. Counsel’s mitigation efforts were
minimal and deficient.
a. Counsel failed to timely begin any mitigation efforts or collect
documentary evidence on Mr. Williams
Even though counsel knew that the penalty phase of the trial was pivotal to
Mr. Williams’ defense, counsel did not timely begin any mitigation efforts or
request documentary evidence regarding Mr. Williams’ background. The Supreme
Court has endorsed the 1989 ABA Guidelines applicable in death penalty cases as
“well-defined norms” for purposes of determining when counsel’s performance is
objectively unreasonable. See Wiggins v. Smith, 539 U.S. 510, 524 (2003) (finding
that counsel’s conduct “fell short of the standards for capital defense work
articulated by the American Bar Association (ABA)—standards to which we long
have referred to as ‘guides to determining what is reasonable’”). Those Guidelines
require that counsel begin independent investigations relating to the penalty phase
“immediately upon counsel’s entry into the case and should be pursued
expeditiously.” 1989 ABA Guidelines at 11.4.1(A); see also Raheem v. GDCP
Warden, 995 F.3d 895, 910 (11th Cir. 2021) (finding counsel not deficient where
defense counsel “quickly began investigating Raheem’s background and mental
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health” upon their appointment as counsel in 1999).
The record in Mr. Williams’ case shows that counsel did not conduct a
thorough investigation, much less begin any type of mitigation efforts expeditiously.
The trial court appointed Ms. Wilson on November 26, 1996 and Mr. Funderburg
on May 28, 1997. (Docs. 84-17 at 3 & 84-1 at 54). The trial court originally set
Mr. Williams’ trial to begin February 9, 1998, but continued it until November 17,
1998 at counsels’ request just about a week before the original trial date. (Docs.
84-10 at 82 & 84-11 at 56). The trial that began November 17, 1998 ended in a
mistrial because of an insufficient number of qualified jurors. (Docs. 84-16 at 28 &
91 at 25). Mr. Williams’ second trial began on February 22, 1999, with the penalty
phase starting on February 25, 1999. (Doc. 84-1 at 67).
Mr. Funderburg testified that when he joined the case in May 1997, Ms.
Wilson did not have a “plan for the penalty phase of the trial” and had conducted no
mitigation investigation. (Doc. 91 at 16). So, for the six months from November
1996 until May 1997, Ms. Wilson failed to begin any type of penalty phase
preparation. As of Ms. Wilson’s filing of her motion for funds for a mitigation
investigator on June 4, 1997, about seven months after her appointment in this case,
counsel admitted that she had not conducted an “adequate investigation” regarding
mitigation. (Doc. 91 at 34).
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Mr. Funderburg also testified that as of August 26, 1997, when he completed
the “Defense Attorney Information” form for Mr. Williams’ pre-trial competency
evaluation at Taylor Hardin, he had not reached out to any of Mr. Williams family
or friends “to try to get information about Marcus’ background.” (Doc. 91 at 42).
So, between May 1997 and August 1997, Mr. Funderburg conducted no mitigation
investigation. And in a letter dated February 2, 1998 to Ms. Wilson, which was
only a week before the initial February 1998 trial setting and about the time counsel
requested a continuance of the trial, Mr. Funderburg wrote that “there is still much
work to be done in preparing the defense.” (Doc. 91 at 36).
And at the time of Mr. Funderburg’s letter to Ms. Wilson on February 2,
1998, counsel had not requested any school, medical, or Job Corp records for Mr.
Williams. A thorough mitigation investigation “must include obtaining all medical,
mental health, school, employment and other records that relate to the client.” See
Ala. Capital Def. Trial Manual, at 589 (3d ed. 1997); see also Raheem v. GDCP
Warden, 995 F.3d 895, 910 (11 th Cir. 2021) (finding counsel not deficient where
they “tried to get all records [they] could from [Raheem’s] educational past, his
medical past, and his counseling past,” in addition to his prison records; [they] got
every kind of record [they] could think of”).
In fact, the only documentary records counsel actually requested were Mr.
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Williams’ Job Corp records. Even though Mr. Williams’ mother Charlene called
Mr. Funderburg’s office on November 12, 1998 with information to request the Job
Corp records from Earl C. Clements, 2302 Hwy 60 East, Morganfield, Kentucky
42437 (doc. 84-11 at 12), Mr. Funderburg waited three months to request those
records from the U.S. Department of Labor on February 17, 1999—only five days
prior to the start of Mr. Williams’ trial on February 22, 1999. (Doc. 84-1 at 70); see
also Williams v. Taylor, 529 U.S. 362, 395 (2000) (finding counsel was deficient
when he did not begin to prepare for the sentencing phase until a week before trial).
And even Mr. Funderburg characterized the timing of his request for the Job
Corp records as “Late, late in relation to – short notice before trial.” (Doc. 91 at
39). He gave no explanation as to why he waited until right before the February
1999 trial setting to request those records or why he was the one requesting those
records given his testimony at the hearing that Ms. Wilson was the primary counsel
on the mitigation efforts. And, Mr. Funderburg admitted that he failed to request
the Job Corp records before the November 1998 trial ended in a mistrial. (Doc. 91
at 39). Had the November 1998 trial not ended in a mistrial, Mr. Funderburg would
have proceeded through that trial without having sought any documentary records
regarding Mr. Williams’ background. Mr. Funderburg also failed to explain why he
failed to request any other documentary evidence for Mr. Williams’ case.
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No reasonable attorney who knows that the penalty phase of the trial would
be paramount to Mr. Williams’ defense would wait until five days before trial to
request Job Corp documents, especially when Mr. Williams’ crime occurred only
ten days after he was terminated from the Job Corp on October 27, 1996. See
(Doc. 84-17 at 65). But counsel failed to obtain those records in time to utilize any
information in them for mitigation purposes. And counsel failed to even request any
other type of documentary evidence on Mr. Williams.
And most telling about the untimeliness of counsels’ minimal efforts
regarding mitigation involved the character letters for Mr. Williams provided to the
trial judge for sentencing after the penalty phase of the trial before the jury. See
(Doc. 84-21 at 1-6). Eloise Williams testified at the evidentiary hearing that, on the
day of her testimony at the penalty phase, counsel asked Eloise to “get[] people to
write letters” as character references for Mr. Williams. (Doc. 92 at 137). And two
of those letters are dated April 4, 1999, which was after the penalty phase of the
trial and before the sentencing before the trial court on April 6, 1999. (Doc. 84-21
at 1-6). Eloise testified that she turned those letters over to counsel, and Mr.
Funderburg offered those statements at the sentencing as attachments to the presentence investigation report. (Docs. 92 at 138 & 84-29 at 66).
No reasonable attorney would wait until literally the day of the penalty phase
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of the trial to get a family member with whom counsel has hardly communicated to
pull together character letters for Mr. Williams at the last minute. Counsel did not
bother to solicit names from Eloise Williams or any other family member and then
interview those people themselves; instead they waited until literally the last minute
to get someone else to do what they should have done long before the day of the
penalty phase of the trial. Seemingly, getting those character letters for Mr.
Williams seemed like an afterthought to counsel. And given counsels’ minimal
effort regarding mitigation, the entire penalty phase of Mr. Williams’ trial seemed to
be the least of counsel’s concern.
b. Counsel failed to utilize mitigation investigation funds or hire a
mitigation investigator
Most telling regarding the lack of counsels’ mitigation efforts was the fact
that they failed to utilize any of the $1,500 awarded by the trial court for a
mitigation investigation. Counsel indicated in the motion for mitigation
investigation funds that they had a constitutional duty to conduct a thorough
mitigation investigation; received $1,500 from the trial court to conduct a mitigation
investigation; but failed to utilize those funds to conduct a thorough mitigation
investigation or to hire anyone to assist with a mitigation investigation.
Ms. Wilson’s case file contained a letter addressed to Billy Stephens dated
October 29, 1997, indicating that Ms. Wilson wanted Mr. Stephens to help with a
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mitigation investigation.
6
(Docs. 84-26 at 68 & 91 at 101). But Mr. Stephens
testified at the evidentiary hearing that he did not receive the letter, never met with
Ms. Wilson, and did not assist counsel in any way with mitigation efforts in Mr.
Williams’ case. (Doc. 91 at 100-103).
Mr. Funderburg testified that “I think Tommie hired another investigator that
did some interviews for her. . . . It would be in her billing, I don’t know.” (Doc. 91
at 92). But the court can find no other evidence in the record to support that Ms.
Wilson contacted any other investigator to assist with mitigation efforts. In fact, the
court can find no filing with the trial court in which counsel provided the name of
any investigator used for mitigation efforts or the costs of services provided by an
investigator, as required by the trial court’s order awarding those funds. See (Doc.
84-51 at 42, 73). And the court can find no records in either Ms. Wilson or Mr.
Fundeburg’s trial counsel files or fee declarations submitted to the trial court to
show that either counsel used the court-ordered funds to hire a mitigation
investigator or used the funds to conduct any type of meaningful mitigation
investigation.
Instead of using the court-awarded money to conduct a thorough mitigation
6 Ms. Wilson’s fee declaration also contains an entry dated “1-29-97" for “Letter to
Billy Stephens RE: Investigator,” but the court can find no letter with that date addressed to
Mr. Stephens in Ms. Wilson’s case files. See (Doc. 84-17 at 3).
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investigation that they knew and acknowledged was paramount to Mr. Williams’
case, Mr. Funderburg testified at the evidentiary hearing that he used $400 of the
$1,500 to serve subpoenas on potential witnesses that investigators previously
identified as suspects in the crime—not to subpoena family members or friends who
could testify about Mr. Williams’ background. (Docs. 84-6 at 4-6, 84-11 at 43-44
& 91 at 36-38). And Mr. Funderburg admitted at the evidentiary hearing that he
did not interview any of those subpoenaed witnesses for mitigation purposes. (Doc.
91 at 37).
The other $1,100 of those court-ordered mitigation funds were unused and
not reported on either counsel’s fee declaration. Mr. Funderburg testified at the
evidentiary hearing that he did not expend any of the court allocated funds on a
mitigation investigation. See (Docs. 84-51 at 42, 73 & 91 at 35, 92). And nothing
in Ms. Wilson’s counsel files or fee declaration indicates that she used any of those
funds on a mitigation investigation.
Remarkably, instead of utilizing the court-awarded funds for any mitigation
efforts, Mr. Funderburg filed a “Motion for Extraordinary Expenses” on December
9, 1998, after Mr. Williams’ November 1998 trial ended in a mistrial, requesting
additional funds for an independent forensic testing laboratory to re-test Mr.
Williams’ DNA samples. (Docs. 84-1 at 43 & 91 at 24-25). The trial judge
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granted the motion and awarded counsel $2,500 for the DNA re-testing. (Doc. 91
at 25). Counsel did not even bother to ask for these additional funds for DNA retesting before his first trial ended in a mistrial. But most shocking is that counsel
focused on securing additional funds related to the guilt phase although Mr.
Williams had confessed to the crime, but counsel failed to utilize existing mitigation
funds for the penalty phase that the trial court had already awarded to conduct any
type of mitigation investigation.
Instead of counsel focusing on the penalty phase of Mr. Williams’ trial given
his three statements admitting his guilt, Mr. Funderburg spent two months right
before the February 22, 1999 trial arranging for Reliagene to conduct independent
DNA analysis and awaiting the results of the re-testing. (Doc. 91 at 25-28). In the
end, those efforts merely confirmed that the DNA from the crime scene matched
that of Mr. Williams. (Docs. 84-1 at 1-23 & 91 at 27). Counsels’ focus on the guilt
phase so late in the game when they knew Mr. Williams’ confessions would be
admitted into evidence was unreasonable. No reasonable counsel, knowing the
importance of the penalty phase because of their client’s confessions and existing
DNA evidence linking their client to the crime, would fail to spend court-ordered
mitigation funds but instead ask for more funds to re-test DNA samples after the
first trial ended in a mistrial. In fact, choosing to forgo spending any court-ordered
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mitigation funds and instead focusing on re-testing DNA at that stage lacked any
reasonable basis.
Counsel’s failure to utilize the court-ordered mitigation funds to conduct a
thorough investigation into Mr. Williams’ background was unreasonable in light of
their acknowledgment of the importance of the penalty phase in Mr. Williams’ case.
This case does not involve counsel who thought a thorough mitigation investigation
was not necessary and made a strategic decision to not conduct one or end
mitigation efforts at a certain point as futile. Counsel in this case asked for funds to
hire a mitigation investigator, and the court granted that request. Nothing in the
record suggests that counsel made a strategic decision to not use those court-ordered
funds to conduct a mitigation investigation. They just did not follow through.
To the contrary, the record shows that counsel knew a mitigation
investigation was paramount to Mr. Williams’ case and wanted to conduct a
thorough mitigation investigation. The problem is that counsel’s minimal efforts to
conduct a thorough mitigation investigation fell way short of reasonable. Counsel
attempted to secure a mitigation investigator but failed to follow through with
efforts to hire an investigator to assist with mitigation. No reasonable counsel
would secure court funds to hire a mitigation investigator; try to secure a mitigation
investigator; drop those efforts for no legitimate, strategic reason; and instead focus
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on re-testing the DNA for the guilt phase when the defendant confessed to the
crime.
As Ms. Wilson stated in the motion for mitigation funds, counsel knew they
would be “constitutionally ineffective” if they did not conduct a thorough
mitigation investigation into Mr. Williams’ background and needed the help of an
investigator to conduct interviews. Yet, counsel failed to use those mitigation funds
to hire an investigator to assist them with mitigation efforts and failed to themselves
conduct a thorough mitigation investigation into any area of Mr. Williams’
background. Reasonable counsel would not seek mitigation funds knowing the
importance of a thorough background investigation and then fail to use any of those
funds to conduct any type of mitigation efforts themselves or hire a mitigation
investigator to assist them. Counsels failed efforts regarding using the courtordered mitigation funds to hire a mitigation investigator were unreasonable and
deficient and in their own words “constitutionally ineffective.”
c. Failure to adequately interview Mr. Williams about his
background for mitigation
A thorough, reasonable mitigation investigation would start with counsel
thoroughly interviewing their client and collecting background information from
him. See Ala. Capital Def. Trial Manual, at 588 (the penalty phase investigation
“must start at the first client interview”). Based on the professional standards in
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both the 1989 ABA Guidelines and the Alabama Capital Defense Trial Manual,
Mr. Williams’ counsel had a “duty to collect information pertaining to ‘family and
social history (including physical, sexual, or emotional abuse,’ and to ‘obtain names
of persons or sources to verify, corroborate, explain and expand upon [the]
information obtained.’” See Williams v. Allen, 542 F.3d 1326, 1339 (11th Cir.
2008) (quoting 1989 ABA Guidelines 11.4.1(D)). As the Alabama Capital
Defense Trial Manual also explains, because the “stakes are so high in a capital
case,” counsel must spend “a great deal of time with the client” so he will “feel very
comfortable and competent during what will be a very difficult experience.” Ala.
Capital Def. Trial Manual, at 3 (3d ed. 1997).
But, Mr. Williams’ counsel spent very minimal time themselves interviewing
Mr. Williams regarding any mitigation efforts or in preparing for the penalty phase
of Mr. Williams’ trial. Mr. Williams testified that counsel met with him “about a
half dozen times,” each time from “fifteen to thirty minutes.” (Doc. 91 at 104-105).
Mr. Williams stated that those meetings were generally in the courthouse before or
after court settings and that none of those meetings were at the jail. (Id. at 105).
Mr. Williams testified that he had “hardly any” relationship with Ms. Wilson
because “she didn’t really talk to me much.” (Doc. 91 at 105). Ms. Wilson’s fee
declaration corroborates this claim. As the primary counsel responsible for the
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penalty phase of Mr. Williams’ trial, Ms. Wilson’s fee declaration submitted to the
trial court reflects that she spent very little time with Mr. Williams at all, much less
for the penalty phase.
7
Ms. Wilson’s fee declaration contains just a few entries indicating that she
spent any time with Mr. Williams. See (Doc. 84-17 at 2-10). Ms. Wilson noted in
her fee declaration a 30 minute conference with Mr. Williams on May 28, 1997
regarding “charges, defenses, discovery” on the same day as Mr. Williams’
arraignment.
8 The only other entry prior to Mr. Williams’ trial on February 22-25,
1999 regarding meeting with Mr. Williams was for August 3, 1997, where Ms.
Wilson noted that she had an “Office Conference with Co-Counsel & Defendant”
for two hours. (Doc. 84-17 at 5) (emphasis added). Curiously, Mr. Funderburg’s
fee declaration does not contain an entry for August 3, 1997 and does not indicate
that he met with Mr. Williams or Ms. Wilson on that day. See (Doc. 84-1 at 68).
And the court is unsure where Ms. Wilson’s August 3, 1997 meeting with Mr.
Williams occurred because he was incarcerated at that time and could not meet at
7 Ms. Wilson submitted her fee declaration to the trial court on June 24, 1999, after Mr.
Williams’ guilt and penalty phases of his trial on February 22-25, 1999 and sentencing by the trial
judge on April 6, 1999. See (Doc. 84-17 at 2-10).
8 Mr. Funderburg indicated in his fee declaration that Mr. Williams’ arraignment occurred
June 10, 1997, and that he spent .25 hours on May 28, 1997 for “Receipt and review of notice of
appointment.” See (Doc. 84-1 at 67).
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Ms. Wilson’s “office.”
Even though Mr. Williams wrote Ms. Wilson a letter dated February 28,
1997 asking her to meet with him about his background, without interruptions and
“without my family being around,” Ms. Wilson’s records indicate that she possibly
met with Mr. Williams only two times as discussed above for at most 2.5 hours
prior to his trial that began on February 22, 1999. See (Docs. 84-26 at 86 & 91 at
109). So for the two years between his February 1997 letter asking to meet with
counsel to discuss his background and his February 1999 trial, Ms. Wilson’s
records indicate she met with Mr. Williams only twice. And according to Ms.
Wilson’s fee declaration, she had no meetings or contact with Mr. Williams for
almost a year and a six months between the August 3, 1997 meeting and his trial
date on February 22, 1999.
Although Ms. Wilson’s legal secretary Tina Watson testified that “it is
normal practice for [all documents about this case] to be kept in the file,” she could
not say for sure that all of Ms. Wilson’s notes were in her case file submitted to the
court. (Doc. 91 at 11-14). And the State argues that “[b]ecause Tommie Wilson is
deceased, it is simply impossible to determine how much time she actually spent
‘preparing for the sentencing phase.’” (Doc. 89 at 23). But a reasonable attorney
would document and include in her fee declaration submitted to the trial court at
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least all time spent with a defendant in a capital murder trial. The fact that Ms.
Wilson included only a few cursory entries in her fee declaration regarding
specifically spending time with Mr. Williams supports his statements regarding the
minimal amount of time Ms. Wilson devoted to talking with him and investigating
Mr. Williams’ background for mitigating evidence.
No reasonable counsel in a death penalty case who is primarily responsible
for the penalty phase would meet with the defendant only twice in two years when
she knows that a thorough mitigation investigation is vital to the case. Mr.
Williams was willing to discuss his background with Ms. Wilson, but according to
Ms. Wilson’s fee declaration she failed to spend any meaningful time with him to
discover mitigation evidence in his background.
Ms. Wilson’s case file contains no notes regarding her meetings with Mr.
Williams or any notes regarding any mitigation investigation efforts with Mr.
Williams. Ms. Wilson’s minimal contact with Mr. Williams was especially
unreasonable given her role as the primary counsel responsible for the penalty phase
of his trial and the paramount importance of Mr. Williams’ background as a
potential source of mitigation evidence.
Although Mr. Funderburg claimed Ms. Wilson was primarily responsible for
the penalty phase of the trial, his fee declaration indicates that he spent more time
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with Mr. Williams than did Ms. Wilson. See (Doc. 84-1 at 67-71). And Mr.
Williams testified that he had more contact with Mr. Funderburg than he did with
Ms. Wilson. (Doc. 91 at 106). According to Mr. Funderburg’s fee declaration, he
met with Mr. Williams only five times and spent at most only about eight hours
total meeting with him from May 1997 when the court appointed Mr. Funderburg
until Mr. Williams’ trial in February 1999. See (Doc. 84-1 at 67-70).
Mr. Funderburg testified at the hearing that he met with Mr. Williams about
“nine or ten times” because he assumed that the entries in his fee declaration for
“Travel to and from Ashville” would be to meet with Mr. Williams. (Doc. 91 at
50). But, in four of the only five entries in his fee declaration where Mr.
Funderburg indicates that he actually met with Mr. Williams, he also included a 1.0
hour entry for “Travel to and from Ashville” on that same date. In most of the
“Travel to and from Ashville” entries where he did not include a meeting with Mr.
Williams, Mr. Funderburg included other things that he did that day, including
“Research and Trial Preparation” and “Receipt/ review of case action summary.”
The April 6, 1999 entry where Mr. Funderburg included only “Travel to and from
Ashville” corresponded with the date of Mr. Williams’ sentencing hearing. (Doc.
84-1 at 67-70). And a reasonable attorney would include in his fee declaration all
the time he actually spent with the defendant, especially in a death penalty case. So,
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Mr. Funderburg’s fee declaration shows that he met with Mr. Williams about five
times from June 1997 until his trial in February 1999 for a total of about 8 hours.
And Mr. Funderburg noted that 4.5 hours of those 8 hours were for a
“Meeting with District Attorney and Defendant,” so he presumably met with Mr.
Williams alone for less than 4.5 hours on that date. See (Doc. 84-1 at 68)
(emphasis added).
And 1.25 of those 8 hours included Mr. Funderburg meeting with Mr.
Williams on August 26, 1997 regarding “psychological forms” for the Taylor
Hardin evaluation for Mr. Williams’ competency to stand trial (Id.) But those
forms were only two pages and contained no background mitigation information on
Mr. Williams because counsel had conducted no mitigation investigation into Mr.
Williams’ background at that point. (Doc. 84-15 at 22-25). In fact, question 3 of
that form asked counsel to indicate “information from Relatives, Friends, etc. that
would Substantiate Defendant’s Mental Condition” but Mr. Funderburg wrote in
response that “Defense Counsel has been unable to consult with relatives and
friends concerning this issue.” Id. So, Mr. Funderburg presumably did not glean
any background information from Mr. Williams during that 1.25 hours meeting
with him regarding those forms.
And although Mr. Funderburg does not specify about what he met with Mr.
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Williams during the rest of his meetings, some of those meetings presumably were
about the guilt phase of the trial because Mr. Funderburg testified that his primary
responsibility was “forensics and DNA and kind of the technical issues.” See (Doc.
91 at 57).
So, Mr. Funderburg most likely spent less than eight hours actually meeting
with Mr. Williams in a meaningful way to investigate his background for
mitigation. That minimal amount of time spent with Mr. Williams was inadequate
to thoroughly interview and question Mr. Williams about his background for
possible mitigation. See Daniel v. Comm’r, Ala. Dep’t Corr., 822 F.3d 1248, 1264
(11th Cir. 2016) (finding deficient performance when no competent attorney in
2003 would have failed to conduct timely and thorough background interviews with
the defendant and his immediate family members when they were available to
counsel).
Not only did Mr. Funderburg spend very minimal time with his client, Mr.
Williams testified that counsel posed to him “just general questions” about his
background, including about “parents, brothers, sisters, that sort of deal, school,”
but did not ask anything specific about his family history or whether he had been
sexually, physically, or emotionally abused in his childhood. (Doc. 91 at 106). Mr.
Funderburg admitted at the hearing that he asked Mr. Williams only general
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questions about his background. (Doc. 91 at 70). Mr. Funderburg testified that he
did not ask Mr. Williams any specific questions regarding his past sexual history,
alcohol use, or family background. Instead, Mr. Funderburg testified that his
practice was to ask only “general questions” like “what kind of childhood did you
have, where did you grow up, where did you live, how were you treated, were there
problems.” (Doc. 91 at 70). Mr. Funderburg indicated that he understood the
importance of physical and sexual abuse as “potential” mitigation evidence, but that
he did not try to get that information by asking Mr. Williams “a litmus test of
specific questions.” (Id. at 69).
Counsel’s practice of only asking vague, general questions did not satisfy
counsel’s duty to thoroughly interview Mr. Williams about his background and was
unreasonable in light of the professional norms at the time of Mr. Williams’ trial.
The 1989 ABA Guidelines specifically required counsel to “[c]ollect information
relevant to the sentencing phase of trial,” including information about his medical
history and any “alcohol and drug use” and “family and social history (including
physical, sexual or emotional abuse).” 1989 ABA Guidelines 11.4.1(D).
The Alabama Capital Defense Trial Manual, of which Mr. Funderburg had a
copy, provides a “list of questions relating to your client’s life history[,]” but
cautions that the list is “not exhaustive” and that counsel may need to seek
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“additional background information and data” not specifically listed in the
questions. Ala. Criminal Def. Trial Manual, at 55. The Manual’s list of questions
instructs counsel to ask about “the name, age and address (where available) of every
member of the client’s family or household”; the “physical conditions in which the
family lived” and whether the client had “adequate food” at home; “any moves
made by the client’s family” and the reasons for those moves; whether the client or
his siblings experienced “sexual abuse (whether or not associated with discipline) or
harassment, or aberrant sexual modeling”; “any major disruptions of or trauma to
any member of the household;” whether the client “demonstrate[d] any behavioral
difficulties”; whether the client “has ingested quantities of alcohol or drugs in such
a way as to suggest substance abuse”; and whether the client has any “family
history of mental illness, criminal conduct, or alcohol or drug use.” Ala. Capital
Def. Trial Manual, at 1, 58-61, 64, 72, 68, 78-80.
Mr. Funderburg knew that Mr. Williams’s crime involved a sexual offense;
that Mr. Williams admitted to police that he had a problem committing sexual
crimes and wanted help; that Mr. Williams admittedly had an alcohol and drug
problem and wanted help; and that alcohol and drugs contributed greatly to the Mr.
Williams’ crime. Yet, counsel failed to ask Mr. Williams any specific questions
about his sexual history or alcohol and drug history as required by the 1989 ABA
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Guidelines and the Alabama Capital Defense Manual. A reasonable investigation
would involve at the least counsel questioning Mr. Williams thoroughly about his
prior sexual history, including why he felt that he had a problem committing sexual
crimes; at what age he became sexually active; whether he had been exposed to any
deviant sexual actions as a child; whether he had been the victim of any improper
sexual contact as a child; and whether he had a history of sexual abuse in his
family. But counsel did not even broach the subject of Mr. Williams’ sexual history
or why he thought he had a problem committing sexual crimes. See Johnson, 643
F.3d at 907 (finding deficient performance where trial counsel did not specifically
ask Johnson if he had been abused by his father, mother, grandparent, or anyone
else; counsel “did not broach the subject.”). That failure was unreasonable.
Mr. Funderburg’s practice of asking only general questions of defendants in
death penalty cases was especially unreasonable given what counsel knew about
Mr. Williams and the specifics of his sexual crime and his alcohol abuse on the day
of the crime. See Correll v. Ryan, 539 F.3d 938, 945 (9th Cir. 2008) (The Court
found deficient performance for failure to investigate for mitigating evidence where
counsel “asked no such specific questions” about the defendant’s “drug abuse, head
injury, psychiatric history, or family dysfunction. . . . Thus, his failure to gather
mitigating information did not result from its unavailability; it resulted from
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counsel’s complete failure to ask any relevant questions.”); McNeill v. Branker, 601
F. Supp. 2d 694, 717 (E.D.N.C. 2009) (finding trial counsel deficient when he
“made only minimal effort to investigate potential mitigating evidence” where his
“primary approach to learning about the petitioner’s character, background, and
upbringing was to ask petitioner and his parents their impression on the subject”).
Had counsel simply spent adequate time with Mr. Williams, developed a
rapport with him to gain his trust, and specifically asked Mr. Williams about his
sexual history, counsel most likely would have discovered the same mitigating
evidence uncovered by Mr. Williams’ Rule 32 counsel “Karl,” who Mr. Williams
first told about his sexual abuse by Mario. See Wiggins, 529 U.S. at 525 (“Had
counsel investigated further, they might well have discovered the sexual abuse later
revealed during state post conviction proceedings.”).
Mr. Williams testified that he did not tell Karl about the sexual abuse the first
time he asked about that issue, but after Karl developed a rapport with Mr. Williams
and specifically asked him about his past sexual abuse, he then felt comfortable
telling Karl about his past sexual abuse by Mario. (Doc. 91 at 122). Mr. Williams
testified at the evidentiary hearing that “Karl was more accessible and more like he
wanted to help, interested in what I had to say. Whereas my trial attorneys already
had their plan made out so, you know, there was – they had nothing they wanted to
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talk to me about or wanted to hear from me about, that’s the way I felt.” (Doc. 91 at
130).
Likewise, had Ms. Wilson and Mr. Funderburg spent adequate time with Mr.
Williams, developed a rapport with him as did Karl, and asked Mr. Williams
specific questions relevant to mitigation, Mr. Williams would have told trial counsel
that Mario, who Mr. Williams believed was “ten or twelve years older” than him,
sexually abused him about three or four times between the ages of four and six;
that he felt shame and depression about Mario’s sexual abuse of him; that he had
thoughts of hurting and killing himself after the sexual abuse; that Mr. Williams
began having sexual intercourse at the age of ten; that when he was around ten
years old he “was allowed to watch [his eighteen-year-old cousin Brian Williams]
have sex as a way of showing me how to do it with a woman”; and that his mother
had men in her bed when Mr. Williams was sleeping with her. (Doc. 91 at 118-
134); see Daniel, 822 F.3d at 1265 (finding deficient performance and prejudice
where the jury never heard about Daniel’s physical, emotional, or sexual abuse “that
trial counsel could have gotten from timely and meaningful interviews with Mr.
Daniels.”).
And, had counsel asked Mr. Williams specific questions about his family
background as called for by the prevailing professional norms in 1999, Mr.
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Williams also would have told them about the domestic violence he witnessed at the
age of twelve between his mother and her boyfriend Jeff Deavers. (Doc. 117-118,
132). Mr. Williams testified at the evidentiary hearing that his mother’s
relationship with Mr. Deavers was “volatile,” meaning they would “get into fights,
physical fights”; he saw evidence on his mother that Mr. Deavers had attacked or
beaten her, including a black eye and busted lip; and when he was twelve-years-old,
he saw Mr. Deavers’ strike Mr. Williams’ mother with his bare hands, and Mr.
Williams responded by “grabb[ing] a knife and tr[ying] to stab him.” (Doc. 91 at
117-118).
Mr. Funderburg claimed that he was at the “mercy of what [Mr. Williams
was] willing to tell [him].” (Doc. 91 at 70). But Mr. Williams did not give
information because counsel failed to even ask. And Mr. Funderburg cannot assign
his constitutional duty to thoroughly investigate for mitigation to the client Mr.
Williams. See Rompilla, 545 U.S. at 381 (Court found deficient performance and
prejudice when Rompilla’s “own contributions to the case were minimal” and even
though he was “even actively obstructive by sending counsel on false leads.”).
Even if Mr. Williams was not willing to cooperate with counsel, which he was, that
fact would not abrogate counsel’s duty to thoroughly investigate Mr. Williams’
background for mitigation. See Blanco v. Singletary, 943 F.2d 1477, 1502 (11th
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Cir. 1991) (counsel cannot “blindly follow” a client’s command to not present
mitigating evidence and that command does not end counsel’s responsibility to
conduct a reasonable mitigation investigation).
Mr. Williams’ counsel unreasonably failed to ask Mr. Williams any specific
questions about or thoroughly investigate any aspect of Mr. Williams’ background.
That failure constituted deficient performance.
d. Failure to adequately investigate or interview any family
members or friends for mitigation
Not only did counsel fail to adequately spend time with and interview Mr.
Williams about his background, counsel also failed to adequately investigate or
interview any family members or friends for possible mitigation evidence. When
asked at the evidentiary hearing “How would you characterize the amount of work
you did in preparation for the sentencing in the Marcus Williams case,” Mr.
Funderburg testified that “I would say that we tried to contact as many people as we
obtained information from from [sic] Marcus’ mother and his grandmother.” Mr.
Funderburg did not know how many people he contacted and said “whatever is in
my notes.” (Doc. 91 at 28). But both his and Ms. Wilson’s case files are silent on
the issue of a mitigation investigation and do not contain any notes about any
meetings with or list of any mitigation witnesses.
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Mr. Williams testified that counsel did not discuss with him prior to his trial
any witnesses or information that counsel planned to present at the penalty phase or
what aspects of his childhood or background that his counsel might argue to the
jury. (Doc. 91 at 112-113). But Mr. Williams indicated that before trial his counsel
asked him to give them “a list of relatives and friends that I could call as witnesses.”
(Doc. 91 at 113). Mr. Williams testified that he wrote about twelve or thirteen
names, including Glen Smith, Tim Cater, Marlon Bothwell, Tameka Richardson,
Charlene Williams, and Eloise Williams, and others names he could not recall on a
piece of paper and gave the list to counsel. (Doc. 91 at 113). But the list provided
by Mr. Williams is not in Ms. Wilson or Mr. Funderbug’s case files in the record.
And Mr. Funderburg testified his practice was to keep all papers and documents
related to a case in his file. (Doc. 91 at 96).
Counsels’ files do, however, contain a blank form provided by the trial court
on which counsel was to list all possible mitigation witnesses for the penalty phase.
(Doc. 84-50 at 70-73). In fact, on September 18, 1997, the trial court provided that
form to counsel and ordered that counsel “shall have the defendant fill out and
complete a list of any potential witnesses in this cause who might in any way assist
counsel in their defense of this case”; that counsel “retain a copy of this list for their
files and investigative use”; and that counsel furnish a completed and signed copy
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of that list to the trial judge within fourteen days of that September 18, 1997 order.
(Doc. 84-11 at 73-74). The trial court’s order also indicates that the list provided to
the trial judge “shall remain under seal in the office of the undersigned judge. Upon
completion of the trial, the sealed list shall be made a part of the record in this
cause. . . .” (Id.) Ms. Wilson’s fee declaration indicates that she mailed a copy of
that order to Mr. Williams on September 20, 1997 “to complete and return.” (Doc.
84-17 at 6). But the only copy of that form that the court can find in the record is
completely blank.
Mr. Funderburg acknowledged that the form provided by the court was blank
and testified at the evidentiary hearing that he “would have produced a list
independent of that form,” or “we would have prepared one on our own, not
necessarily using this exact form.” (Doc. 91 at 30, 60). But the court can find no
list of any mitigation witnesses in either counsel’s files. And Mr. Funderburg
admitted at the evidentiary hearing that his case file contained no list of possible
mitigation witnesses. (Doc. 91 at 96). He gave no explanation for why some type
of mitigation list was not in his or Ms. Wilson’s files for Mr. Williams’ case.
In fact, at sentencing, the trial judge inquired about the fact that it had not
received a list of mitigation witnesses from the defendant as he had ordered. The
trial judge stated at the sentencing hearing that “I think the record will reflect the
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Court has previously distributed to the defendant and his attorneys a list for
prospective witnesses that the defendant would request be called. Quite frankly,
based on that list, I don’t know whether any witnesses were listed as to the
sentencing phase.” (Doc. 84-29 at 92).
Mr. Funderburg responded to the trial judge that “[w]e did that through
statements [attached to the pre-sentence report]. [Mr. Williams] read through those
and he said he wanted us to offer those and we did.” (Id. at 93). But the jury did
not see those six written statements on behalf of Mr. Williams because counsel
asked Eloise Williams on the day of the penalty phase of the trial to gather those
statements for sentencing before the trial judge. And Mr. Funderburg did not testify
that counsel talked to or interviewed any of the people who provided character
references before receiving their statements from Eloise Williams. So, although Mr.
Williams provided a list of possible mitigation witnesses to counsel, they failed to
compile or provide a completed list of possible mitigation witnesses to the trial court
as ordered. That failure was unreasonable and reflects counsel’s complete lack of
effort to conduct any type of mitigation investigation.
The court acknowledges that Mr. Funderburg testified that he did meet with
Mr. Williams and talked about potential mitigation witnesses (doc. 91 at 47, 61)
and that counsel had “contacted or tried to contact everyone that had been
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presented” (doc. 91 at 60). But the facts that counsel failed to compile any list of
mitigation witnesses, no mitigation list is in either counsels’ case files, and the trial
judge questioned why counsel failed to provide to the court a list of mitigation
witnesses as ordered undermine Mr. Funderburg’s testimony. Reasonable counsel
would have compiled a list of mitigation witnesses as ordered and provided that list
to the trial court. And even if Mr. Funderburg did meet with Mr. Williams and talk
about some mitigation witnesses, talking about some witnesses would not be
enough. Counsel had a duty to thoroughly interview or investigate mitigation
witnesses, but they failed to fulfill that constitutional duty.
Mr. Funderburg tried to justify this failure by testifying that “[i]f I recall, we
actually had an in-camera meeting with [the trial judge] without the State being
involved,” at which the trial judge questioned Mr. Williams about whether he had
any other witnesses he wanted counsel to call as mitigation witnesses, but Mr.
Williams answered “no.” (Doc. 91 at 60). But the only colloquy from the trial
judge that this court can find in the record took place during the actual sentencing
hearing on April 6, 1999. (Doc. 84-29 at 92-93). And that colloquy occurred
immediately after the trial judge questioned why counsel failed to submit a list of
mitigation witnesses. (Doc. 84-29 at 92).
The responsibility to know what evidence is relevant to mitigation,
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investigate any family members or friends to discover that mitigation evidence, and
call them as witnesses during the penalty phase of the trial was on counsel, not Mr.
Williams. Mr. Williams’ indication to the trial judge that he did not want to call
any additional witnesses did not erase counsel’s duty to conduct a thorough
mitigation investigation prior to the penalty phase before the jury and the
sentencing hearing before the trial judge.
In addition to the counsels’ failure to compile a list of possible mitigation
witnesses, both Ms. Wilson and Mr. Funderburg’s fee declarations show very little
time meeting with family members at all, much less regarding mitigation. In her fee
declaration, Ms. Wilson indicates that she spent at most only two hours total in
conferences with “family,” but her declaration does not specify which family
members. And her fee declaration indicates that she reviewed on April 4, 1999 the
“character witness letters,” but Ms. Wilson did not actually collect those letters
herself—counsel tasked Eloise Williams with collecting them. Ms. Wilson’s fee
declaration shows no other time investigating or interviewing Mr. Williams’s family
members or any other witnesses for the penalty phase of the trial. (Doc. 84-17 at 6).
The minimal time that Ms. Wilson spent talking to or interviewing family members
regarding Mr. Williams’ background was unreasonable, especially in light of Mr.
Funderburg’s claims that Ms. Wilson was the one primarily responsible for any
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mitigation efforts for the penalty phase of Mr. Williams’ trial.
And, although Mr. Funderburg testified that Ms. Wilson was primarily
responsible for the penalty phase of Mr. Williams’ trial, Mr. Funderburg’s fee
declaration submitted to the trial court showed he spent more, albeit minimal, time
talking to family members and preparing for the penalty phase of the trial. See
(Doc. 84-1 at 55-59). But Mr. Funderburg testified at the evidentiary hearing that
he could not identify any entry on his fee declaration “referring to interviews of
mitigation witnesses.” (Doc. 91 at 29). And, at most, Mr. Funderburg spent about
twelve hours on the enitre penalty phase of the trial that included two 15 minute
phone calls with Charlene on August 27, 1997 and September 5, 1997; a 45 minute
“meeting with Eloise” on October 23, 1997; two short phone calls with Charlene
regarding “pastoral rights” and a continuation of the trial on November 6, 1997 and
January 3, 1998; a 90 minute meeting with “Defendant’s family” on November 11,
1998; and two telephone conferences with “witnesses” totaling 2.5 hours on
November 16, 1998 and December 14, 1999. And on March 15, 1999, after the
penalty phase of the trial before the jury in February 1999, Mr. Funderburg
researched sentencing preparation and prepared Mr. Williams’s sentencing
statement for the April 1999 sentencing before the trial judge. His fee declaration
states “12.3 Hours at $20.00 per hour = $246 (Sentencing Phase).” (Doc. 84-1 at
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55-59).
Generously interpreting Mr. Funderburg’s fee declaration, he spent at most
about a total of twelve hours preparing for the entire penalty phase of Mr. Williams’
trial, including minimal contact with Mr. Williams’ family. And his trial counsel
file and records do not reflect any additional time spent investigating or
interviewing family members or friends for mitigation purposes. Counsel had no
list of mitigation witnesses in their files; no documented plan to secure mitigation
evidence; and no notes from conversations with Mr. Williams, Charlene, Eloise, or
any of his family members regarding his family background.
Counsel had no reasonable excuse for failing to—at the very least—compile a
list of all of Mr. Williams family members, including all the relatives with whom
Mr. Williams had lived and all of his siblings, and reach out to them to find out
about Mr. Williams’ childhood background.
The 1989 Guidelines do not establish a specific number of persons that
counsel should interview, and the Eleventh Circuit has rejected the idea that there is
a “magic number” of witnesses an attorney must interview for mitigation.
See Alderman v. Terry, 468 F.3d 775, 792 (11th Cir. 2006). But the Eleventh
Circuit has “found deficient performance in cases where an attorney’s efforts to
speak with available witnesses were insufficient to formulate an accurate life profile
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of [the] defendant.” Williams v. Allen, 542 F.3d 1326, 1339 (11th Cir. 2008)
(alteration in original) (internal quotation marks omitted) (quoting Jackson v.
Herring, 42 F.3d 1350, 1367 (11th Cir. 1995)).
Mr. Williams’ sisters Lacharo Williams and Sharenda Williams both testified
at the evidentiary hearing that they were present at the penalty phase of Mr.
Williams’ trial in February 1999 but that neither Mr. Funderburg nor Ms. Wilson
spoke to or interviewed them about their family background either before or on the
day of the penalty phase of the trial. (Docs. 91 at 153 & 92 at 211-212). LaCharo
also testified at the evidentiary hearing that she was with her mother Charlene
“when she was talking to [Ms. Wilson before the trial], but Ms. Wilson “didn’t have
any interaction with me.” (Doc. 92 at 211). Both LaCharo and Sharenda testified
they would have cooperated with Mr. Williams’ counsel and talked to them about
their family background had counsel reached out to them. (Docs. 91 at 153 & 92 at
212). Counsels’ failure to interview or investigate Mr. Williams’ sisters who were
available and present at the penalty phase of the trial was unreasonable. See
Cooper v. Sec’y, Dep’t Of Corr., 646 F.3d 1328, 1351-52 (11th Cir. 2011) (finding
deficient performance based on an inadequate mitigation investigation where
counsel only interviewed Cooper, his mother, and a psychologist, but not other
available family members).
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Mr. Funderburg’s case file also contains a note in his handwriting on which
he wrote the names Takeisha Fomby, Barbara Powell, LaCharo Williams, and
Sharenda Williams and “need excuse that their appearance was necessary in court
on 2-25-99.” (Doc. 84-11 at 29). Mr. Funderburg testified at the evidentiary
hearing that none of the people listed on the note were called as mitigation
witnesses. (Doc. 91 at 33). And Sharenda and LaCharo testified that neither of
Mr. Williams’ trial counsel ever talked with them prior to, during, or after the trial
about mitigation or anything else, even though they were present at the penalty
phase of the trial. (Docs. 91 at 153 & 92 at 212); see Johnson v. Sec’y, DOC, 643
F.3d 907, 935 (11th Cir. 2011) (finding deficient performance where trial counsel’s
failure to speak with witnesses was not product of witnesses’ unavailability or
unwillingness but counsel’s lack of effort). Both LaCharo and Sharenda’s
testimony at the evidentiary hearing was credible and undermine Mr. Funderburg’s
testimony that he had contacted or tried to contact all possible mitigation witnesses.
And Mr. Williams’ childhood friend Marlon Bothwell testified at the
evidentiary hearing that he knew Mr. Williams since he was around four-years-old;
was living in Ashville in 1999; but no one contacted him about Mr. Williams during
the time his case was going to trial. And Marlon Bothwell was one of the names
that Mr. Williams testified he wrote on a piece of paper and gave to counsel to
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contact regarding testifying on Mr. Williams’ behalf. (Doc. 91 at 113). But
counsel failed to reach out to Mr. Bothwell or ask him any questions regarding Mr.
Williams’ background. And Mr. Bothwell testified that he would have cooperated
with anyone working on Mr. Williams’ behalf if they had contacted him and asked
what he knew about Marcus’ background. (Doc. 93 at 6, 18-19). Counsels’ failure
to contact one of Mr. Williams’ childhood friends whose name Mr. Williams
provided to them was unreasonable and deficient.
When asked at the evidentiary hearing why he failed to contact any family
members or friends prior to completing the Taylor Hardin evaluation paperwork on
August 26, 1997, Mr. Funderbrug testified that “I don’t think at that time there was
a lot of cooperation with those – with friends that were also suspects.” (Doc. 91 at
42). The court agrees that Mr. Williams’ childhood friend Alister Cook, who was
partying with Mr. Williams the night Mr. Williams broke into Lottie Turner’s home
and attempted to rape her, could have initially been a suspect and may not have
cooperated with talking to counsel about Mr. Williams’ background; Mr. Cook gave
several statements to the police about being with Mr. Williams the night of the
Turner burglary and attempted rape. See (Doc. 84-6 at 25 & 84-15 at 25-28).
But the record contains no evidence that Mr. Funderburg or Ms. Wilson even
attempted to talk to Mr. Cook about Mr. Williams’ background for mitigation. In
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fact, Mr. Funderburg included Mr. Cook on the list of witnesses he subpoenaed to
appear for the November 1998 trial, but Mr. Funderburg admitted at the evidentiary
hearing that he did not interview any of the subpoenaed witnesses for mitigation
purposes. (Doc. 84-11 at 44 & 91 at 37). Counsel’s failure to even attempt to talk
to Mr. Williams’s closest friend Mr. Cook, who was “hanging” with Mr. Williams
around the time of the Rowell murder, was deficient.
And Mr. Funderburg admitted that he had not reached out to any of Mr.
Williams’ family or friends who were not suspects in the crime. (Doc. 91 at 42).
Mr. Williams’ sisters LaCharo and Sharenda and friend Marlon Bothwell who all
testified at the evidentiary hearing were not suspects in the case. See (Doc. 84-6 at
4-6). They were available witnesses that counsel could have interviewed thoroughly
about Mr. Williams and his family background. See Hardwick, 803 F.3d at 554
(reasonable counsel would have pursued avenues of mitigation by interviewing
available family members). But counsel failed to conduct a thorough mitigation
investigation, ignored Mr. Williams’ sisters who were actually present at the penalty
phase of the trial, and failed to thoroughly interview close family members who
were willing and available to testify. Those failures were unreasonable.
e. Failure to Adequately Interview and Prepare the Penalty Phase
Witnesses
Counsel also failed to thoroughly interview and prepare prior to Mr. Williams’
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trial the only two family members they called as witnesses at the penalty
phase—Charlene Williams and Eloise Williams. Mr. Funderburg testified that “the
mother and the grandmother seems were the primary two we would have met with
on several occasions. . . .” (Doc. 91 at 30). But Mr. Funderburg did not have clear
understanding of Mr. Williams’ family dynamics because he thought Beulah
Williams was Mr. Williams’ grandmother, when she in fact was his greatgrandmother. See (Doc. 91 at 43). And counsel did not call Beulah Williams to
testify at the penalty phase of the trial; they called his aunt Eloise Williams.
And counsel’s decision to call two mitigation witnesses at the penalty phase
whom they failed to thoroughly interview prior to their testimony was deficient. See
Andrus v. Texas, 140 S. Ct. 1875, 1882 (2020) (finding deficient performance
where counsel was “barely acquainted” with the mitigation witnesses and “did not
prepare the witnesses or go over their testimony before calling them to the stand”).
Eloise testified at the evidentiary hearing that counsel did not meet with her about
her testimony until the day of her testimony at the penalty phase “in a little room at
the courthouse”; that they met “not long at all” about “fifteen minutes”; that counsel
asked her “general things” “about his family life”; and that counsel did not seem to
have an “understanding at that time of Marcus’ life story.” (Doc. 92 at 134-135).
Eloise also stated that before the trial date, counsel did “not get in touch with me or
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not told me, ask me things”; did not ask her any questions regarding sexual issues in
Marcus’ family, behavior issues, or substance abuse history for Mr. Williams or his
family; and did not explain mitigation evidence to her or what would be useful or
helpful for Mr. Williams’ case. (Doc. 92 at 135-136). And Mr. Funderburg’s
testimony that he primarily met with Mr. Williams’ mother and “grandmother”
supports Eloise’s testimony that counsel did not thoroughly interview her before her
testimony at the penalty phase of the trial.
Charlene testified that she met with Mr. Williams’ counsel “maybe three
times” for “not long,” “about thirty minutes.” (Doc. 92 at 191-192). She testified
that counsel asked to meet with her one time; that she went herself the other two
times to talk to them about the trial; and that she talked to Ms. Wilson first and then
to Mr. Funderburg. (Id.) Charlene testified that when she went to Pell City to meet
with counsel on one occasion, her cousin Gwin Fomby went with her, but counsel
did not attempt to interview Ms. Fomby. (Id. at 192). Charlene also testified that
Mr. Williams’ trial counsel did not ask her to put them in contact with any other
family members; never came to her home to meet with her; did not explain to her the
meaning of mitigation evidence; did not explain what kind of evidence would be
helpful to Mr. Williams’ case; and did not ask her about alcohol or sexual abuse in
the family. She stated that had counsel asked her about these specific things, she
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would have cooperated with them and answered their questions. (Doc. 92 at 192-
193).
And the Eleventh Circuit noted in its decision remanding this case that both
Charlene and Eloise’s testimony at the penalty phase of the trial was “brief” and that
counsel “elicited testimony [from them] that portrayed [Mr. Williams] in a negative
light” that was “likely more harmful than helpful.” Williams, 791 F. 3d at 1270.
The fact that counsel elicited testimony from Charlene and Eloise that was harmful
to Mr. Williams’ case indicates that counsel had no real understanding of Mr.
Williams’ background and had not thoroughly interviewed either Charlene or Eloise
about the details of Mr. Williams’ background prior to their testimony.
Most telling about counsel’s lack of understanding about Mr. Williams’
abandonment by his mother involved counsel’s questions of Charlene and her
testimony at the penalty phase that could have given the jury the impression that she
spent considerable amount of time with her son when he was growing up.
Q. Where was [Mr. Williams] when he wasn’t with you?
A. He lived with my grandmother and my aunt. They helped me
because I was a young girl.
. . . .
Q. Prior to this time, had Marcus been a problem child to you
in any way?
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A. No, he had never been.
Q. Did you spend a lot of time with him when he was
growing up?
A. Yes. Marcus was the baby for five and a half years.
(Doc. 84-29 at 18, 22). From her testimony, the jury could conclude that Mr.
Williams at times lived with relatives because Charlene was a “young girl”; that she
never had any problems with Mr. Williams when she was raising him; and she spent
a lot of time with him when he was growing up. None of her testimony revealed the
true dysfunction and troubled history Mr. Williams faced being raised by an
alcoholic mother whose abandonment of him impacted his life in a traumatic way.
Counsel presented but a “hallow shell” of Mr. Williams’ traumatic and troubling
childhood. See Collier v. Turpin, 177 F.3d 1184, 1201 (11th Cir. 1999) (Court
found deficient performance where counsel called ten witnesses but the
examinations were “minimal”; “Counsel presented no more than a hollow shell of
the testimony necessary for a ‘particularized consideration of relevant aspects’ of the
defendant’s background.”).
Counsel failed to ask Charlene about her own alcohol abuse, her inability to
care for her children, her abandonment of her children, the domestic violence she
suffered by Jeff Deavers that Mr. Williams’ witnessed, the sexual abuse of her
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daughter by Brian Williams that Charlene failed to do anything about, or the fact that
she allowed men to sleep with her while in her bed with Mr. Williams. Counsel
failed to ask because they failed to even look for this mitigation evidence. See
Andrus, 140 S. Ct. At 1877 (“Andrus’ defense counsel not only neglected to present
[mitigating evidence]; he failed to even look for it.”).
Reasonable counsel would have thoroughly interviewed Charlene and Eloise
before their testimony, asked specific questions of them as called for by the
prevailing norms at that time, and spoke to other family members who could verify
the cycle of dysfunction in which Mr. Williams was raised. Instead, Mr. Williams
put Charlene and Eloise on the stand without thoroughly interviewing them and
without a true understanding of Mr. Williams’ family dysfunction and troubled
history. See Wiggins, 529 U.S. at 534 (Counsel’s “partial presentation of a
mitigation case suggest[s] that their incomplete investigation was the result of
inattention, not reasoned strategic judgment.”).
A reasonable attorney would have thoroughly interviewed all family members
with whom Mr. Williams lived during his childhood, any family member who could
explain how Mr. Williams’ grew up, and any friend of his that knew his
background. And a reasonable attorney would have asked specific questions called
for by the prevailing norms at that time, especially regarding Mr. Williams and his
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family’s past history of sexual abuse and alcoholism. Had counsel conducted an
adequate and thorough mitigation investigation with Mr. Williams’ family members
and friends, they would have uncovered evidence of the history of sexual abuse
throughout his family, history of alcoholism in his family, and the depth of the
dysfunction and chaos in Mr. Williams’ troubled family history. Counsel’s failure to
conduct a thorough investigation into Mr. Williams’ family background constitutes
deficient performance.
3. What a Reasonable Investigation Would Have Uncovered
As the court has thoroughly discussed supra, Mr. Williams’ counsel failed to
thoroughly investigate Mr. Williams’ background for mitigation evidence. Had counsel
performed a thorough mitigation investigation, they would have uncovered powerful
mitigation evidence about Mr. Williams’ background that the jury never heard.
a. Preliminary Matters
But before the court sets out the mitigation evidence that the court finds a
thorough investigation would have uncovered, it must first address a few preliminary
issues.
i. Consideration of Strategic Choices
The court first must address whether counsel’s failure to conduct a thorough
mitigation investigation and present the mitigation evidence presented at the evidentiary
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hearing involved a strategic decision by counsel. Counsel’s failure to present mitigating
evidence is not per se ineffective assistance of counsel and can “on occasion, be
justified as a strategic choice.” Hardwick, 803 F.3d at 551.
At the evidentiary hearing, Mr. Funderburg justified his decision not to present
evidence concerning Mr. Williams’s “future dangerousness” or propensity for sexual
violence because he did not want to indicate to the jury that his client was predisposed
to sexual violence. (Doc. 91 at 76). And Mr. Funderburg testified that he successfully
kept out of the guilty phase of Mr. Williams’ trial any reference to Mr. Williams’
attempted rape of Ms. Turner just eighteen days after his rape and murder of Ms.
Rowell. (Doc. 91 at 78).
But that strategic decision to keep out the subsequent attempted rape of Ms.
Turner did not eradicate counsel’s duty to first thoroughly investigate Mr. Williams’
background for any mitigating evidence that might shed light on why he committed
both sexual crimes. “Strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable . . . .” Strickland, 466
U.S. at 690 (emphasis added). Counsel’s decision not to investigate or present
mitigating evidence is “only reasonable, and thus due deference, to the extent that it is
based on a professionally reasonable investigation.” Hardwick, 803 F.3d at 551.
Here, counsel’s alleged strategic decision to keep out of evidence Mr. Williams’
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subsequent sexual crime may have made sense during the guilt phase of the trial, but
that decision was not made after a thorough investigation of Mr. Williams’ background
and was not based on a professionally reasonable investigation regarding the penalty
phase of the trial. Counsel unreasonably failed to even ascertain what mitigation
evidence existed regarding Mr. Williams childhood sexual abuse or childhood sexual
history. Reasonable counsel would have conducted a thorough mitigation investigation
into Mr. Williams’ past sexual history, asked Mr. Williams specific questions regarding
his past sexual abuse and his sexual experiences, processed that information, and then a
made a “strategic” decision whether to present that evidence to the jury at the penalty
stage of the trial. Counsel cannot side-step the first requirement—the thorough
mitigation investigation—and then claim they strategically chose to not present
mitigating evidence they did not bother to ask about or discover.
So, counsel’s claims to have strategically decided to keep out any evidence of the
sexual abuse and deviant sexual circumstances to which Mr. Williams was subjected as
a child come too late. Counsel could not strategically decide to keep out evidence of
which they were not aware because of their unreasonable mitigation investigation.
Mr. Funderburg also testified that he would not have wanted to introduce
evidence that conflicted with Mr. Williams’ pretrial competency report, in which Dr.
Smith with Taylor Hardin stated that Mr. Williams “denied history of childhood sexual,
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emotional, or physical abuse.” (Doc. 84-10 at 34). But Mr. Williams testified that Dr.
Smith did not ask him specifically about whether he had been sexually abused, but
instead asked general questions about his background. He admitted at the evidentiary
hearing that he did not tell Dr. Smith about the sexual abuse by Mario because she did
not specifically ask him about it. (Doc. 91 at 110-111). And if Mr. Williams did not
offer that information to Dr. Smith based on her general questions, that circumstance
could explain Dr. Smith’s notation that Mr. Williams denied any such abuse.
But in any event, as the Eleventh Circuit pointed out in this case, “[a]lthough [the
statement regarding Mr. Williams’s denial of sexual abuse] may be relevant to [this
court’s] Strickland analysis, it does not by itself foreclose relief.” Williams, 791 F.3d at
1277. The Eleventh Circuit stated that “[b]ecause this report only evaluated Mr.
Williams’s ‘competency to stand trial and mental state at the time of the alleged
offense,’ it is not an adequate substitute for the ‘thorough investigation’ required of
attorneys representing capital defendants.” Williams, 791 F.3d at 1277 (quoting
Williams v. Taylor, 529 U.S. 362, 396 (2000)) (emphasis added); see also Wiggins, 539
U.S. at 532 (Counsel’s “decision to hire a psychologist sheds no light on the extent of
the investigation into petitioner’s social background.”). And the Eleventh Circuit
further stated that the fact that the competency report was not a substitute for a thorough
mitigation investigation was “especially true because the competency report itself came
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with a significant disclaimer: ‘this information should be viewed cautiously without
verification by a third party.” Id. And Mr. Funderburg testified that neither he nor Ms.
Wilson attempted to verify the information contained in the competency report. (Doc.
91 at 47). So, the notation in Dr. Smith’s report that Mr. Williams denied being
sexually abused does not justify counsel’s failure to conduct a thorough mitigation
investigation into Mr. Williams’ background.
Mr. Funderburg also testified that the trial judge would not have granted a motion
for an independent mental health evaluation of Mr. Williams, apart from the Taylor
Hardin evaluation, unless counsel had a basis for asking for one. And Mr. Funderburg
testified that the he did not see “any need for a mental health evaluation based on the
Taylor Hardin report and [his] dealings with Mr. Williams.” (Doc. 91 at 67).
But Dr. Smith’s Taylor Hardin evaluation of Mr. Williams only assessed Mr.
Williams’ competency to stand trial and his mental status at the time of the crime and
was not for mitigation. A defendant can be competent to stand trial but have suffered
traumatic childhood experiences that deeply affect his psychological development and
behavior. See Hardwick, 803 F.3d at 553 (“Dr. Barnard was appointed solely to
evaluate Hardwick for competency and sanity, not for mitigation,” and counsel did not
discuss mitigation evidence with the doctor.). But because Mr. Williams’ trial counsel
failed to conduct a thorough mitigation investigation to discover those childhood
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experiences, they failed to supply any relevant information to Dr. Smith about Mr.
Williams’ past sexual history and lacked any background information to properly
evaluate Dr. Smith’s evaluation in light of Mr. Williams’ troubling background. See
Hardwick, 803 F.3d at 553 (finding deficient performance where counsel, prior to the
competency evaluation, failed to give Dr. Barnard any limited background information
on Hardwick). Reasonable counsel would have thoroughly interviewing Mr. Williams
and his family members before the competency evaluation and providing that
information to Dr. Smith.
And a reasonable attorney evaluating Dr. Smith’s report would have seen red
flags that would have led him to at least ask for an independent mental health
evaluation. Dr. Smith’s report indicates that Mr. Williams “has had difficulty
sustaining interpersonal, dating relationships for longer than three months at any given
time”; that he began drinking at the age of fourteen or fifteen and would consume two
six-packs of beer to get drunk; that he reported having “vague suicidal ideation from
time to time . . . and ‘thoughts of just you know knife . . . jumping off building . . . they
come and go pretty often. . .’”; that on the day of the crime Mr. Williams was “being
driven to ‘do something stupid’ by ‘hearing voices telling me to just do it . . . try
something stupid . . . it was like my own voice, my inner voice telling me to do
something’”; and that Mr. Williams “attributed his behavior on [that day of the crime]
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to ‘I’ve always been neglected . . . looked down upon.’” Dr. Smith also indicated in her
report that Mr. Williams’ “pattern of behavior over time[] is also consistent with
personality disorder, most likely antisocial.” (Doc. 87-1 at 57-64) (emphasis added).
Yet, Mr. Williams’ counsel “disregarded, rather than explored, the multiple red flags.”
See Andrus, 140 S. Ct. at 1883.
Given what Mr. Williams’ trial counsel knew about the sexual nature of the crime
and the role of alcohol and drugs in his conduct, these red flags in Dr. Smith’s report
would have prompted a reasonable attorney to explore any underlying reasons in Mr.
William’s history for his difficulty maintaining interpersonal relationships, alcohol
abuse as a young teenager, suicidal ideation experienced “pretty often,” hearing his
inner voice telling him to “do something stupid” in a alcohol and drug induced state on
the day of the crime, and feelings of severe neglect. See Hardwick, 803 F.3d at 553
(Hardwick’s competency assessment included red flags that counsel should have
investigated including Hardwick’s alcohol and drug abuse at an early age and diagnosis
of anti-social personality disorder.).
Had Mr. Williams’ trial counsel conducted a thorough mitigation investigation
into Mr. Williams’ background and discovered his troubling sexual history and alcohol
abuse at an early age, coupled with these red flags from Dr. Smith’s report, they would
have had a basis to at least request from the trial judge an independent mental health
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evaluation regarding the effects of his past sexual experiences, alcohol abuse,
abandonment by his mother, and overall troubled background on his psychological
development for mitigation purposes.
And, in his January 16, 1998 “Order on Pre-trial Motions Filed to Date,” the trial
judge in essence invited a defense motion for independent psychological testing and
stated that “Defendant will be filing motion for funds for independent psychologist for
independent test. Defendant’s counsel to advise the Court in advance the basis for said
testing.” (Vol. IV, Tab R-27 at 87). But counsel never filed a motion with such
request. Had Mr. Williams’ trial counsel conducted a thorough mitigation investigation
and discovered all of the mitigation evidence that a reasonable investigation would have
uncovered, trial counsel would have had a basis to at least ask the trial judge for funds
for an independent mental health evaluation for mitigation purposes. Given the trial
judge’s willingness to grant trial counsel’s request for independent DNA re-testing even
though Mr. Williams had confessed to the crime and the first round of DNA testing
linked him to the crime, the trial judge would have likely granted a request from trial
counsel for an independent mental health evaluation.
And Mr. Funderburg gave no testimony at the evidentiary hearing that counsel’s
trial strategy was to not investigate Mr. Williams’ background. See Daniel, 822 F.3d at
1268 (“It is important to Mr. Daniel’s case that this record includes nothing to indicate
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that trial counsel’s limited investigation into Mr. Daniel’s troubled family background
was the product of reasonable professional judgment.”) Mr. Funderburg gave no
indication that counsels’ trial strategy was to not talk to all available family members
about Mr. Williams’ background. In fact, he claimed to have contacted everyone he
knew to contact, yet he had no mitigation list or notes from any mitigation interviews in
his case file and did not interview Mr. Williams’ sisters who testified at the evidentiary
hearing. And Mr. Funderburg gave no testimony at the evidentiary hearing that
counsels’ trial strategy was to not explain to the jury Mr. Williams’ and his family’s
history of alcohol abuse, including by family members with whom Mr. Williams’ lived
when he was a child. In fact, counsel specifically asked the jury to take into
consideration as a mitigating factor that Mr. Williams had been drinking and doing
drugs the day of the rape and murder. (Doc. 84-29 at 15).
So, the court finds that counsel’s failure to thoroughly investigate Mr. Williams’
background for possible mitigation evidence and present that evidence at the penalty
phase of the trial was not the result of any reasonable trial strategy.
ii. Consideration of Expert Testimony
The court also must decide whether it can consider as mitigating evidence the
testimony and opinions of Dr. Mendel and Dr. Benedict. Mr. Williams must
demonstrate that a reasonable investigation for mitigation evidence would have
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uncovered the mitigating evidence he presented at the evidentiary hearing. See Blanco
v. Singletary, 942 F.2d 1477, 1500 (11th Cir. 1991). When that mitigation evidence
includes expert testimony, a petitioner must show a “reasonable likelihood that an
ordinary competent attorney conducting a reasonable investigation would have found an
expert similar to the one eventually produced.” Elledge v. Dugger, 823 F.2d 1439,
1446 (11th Cir. 1987) (opinion withdrawn in part on a different issue by 833 F.2d 250
(11th Cir. 1987)).
If Mr. Williams cannot show a reasonable likelihood that a “similar expert could
have been found at the pertinent time by an ordinary competent attorney using
reasonably diligent effort,” he “was not prejudiced by counsel’s failure to investigate.”
Elledge, 823 F.2d at 1446. “Merely proving that someone–years later–located an expert
who will testify favorably is irrelevant” unless Mr. Williams can make this showing.
See id.
Dr. Mendel
Dr. Mendel testified that he is a clinical psychologist in Raleigh, North Carolina.
(Doc. 93 at 34). He completed his degree at Princeton in 1984 and received his Masters
and PhD in clinical psychology from the University of Michigan in 1992. (Id. at 35).
Dr. Mendel found that his testing of Mr. Williams would not support a formal
diagnosis of PTSD as a result of Mr. Williams’ sexual abuse by Mario and other
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traumatic childhood experiences. But Dr. Mendel testified regarding how Mr.
Williams’ abandonment by his mother, past sexual abuse, alcoholism, family history of
both alcoholism and sexual abuse, and overall family dysfunction contributed to Mr.
Williams’ overall development and later sexual crime. (Doc. 93 at 34-131).
Dr. Mendel testified that, during the time he worked on his dissertation in the
“mid eighties or late eighties,” the National Center for Child Abuse and Neglect was
and still is located in Huntsville, Alabama. He testified that based on the location of
that Center in Huntsville, he “think[s] there actually were and still are a lot of experts in
the impact of child abuse here in Alabama,” but he did not know if any of them were
closer than Huntsville. (Doc. 93 at 64).
The court finds that based on Dr. Mendel’s testimony a reasonable likelihood
exists that Mr. Williams’ counsel could have found an expert similar to Dr. Mendel in
1999 in Alabama to testify about the impact of Mr. Williams’ abandonment by his
mother, history of sexual abuse, alcohol abuse, and overall dysfunctional upbringing.
And, the State did not raise any specific objection to the court’s consideration of Dr.
Mendel’s testimony in its post-hearing brief. See (Doc. 89 at 31-34). So, the court will
consider Dr. Mendel’s testimony as mitigation evidence that reasonable counsel could
have presented at Mr. Williams’ trial in 1999.
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Dr. Benedict
Dr. Benedict received his Ph.D in Clinical Psychology in 1992 from the
University of North Carolina at Chapel Hill and completed his Postdoctoral Fellowship
in Child and Adolescent Clinical Psychology and Neuropsychology at Harvard Medical
School in 1993.
Dr. Benedict testified at the evidentiary hearing regarding the affects of Mr.
Williams’ sexual abuse by Mario and overall dysfunctional upbringing on his
development. (Doc. 91 at 166-231). He also testified that Mr. Williams suffered from
“complex trauma syndrome,” a diagnosis that Dr. Benedict concedes was not in a
“diagnostic manual to which [an expert] could have turned.” (Doc. 91 at 226).
Dr. Benedict testified that a “suitably trained clinician,” such as a social worker,
psychologist, psychiatrist, or licensed counsel, with knowledge of the “dynamics of
child sexual abuse . . . and neglect, who was current with the literature” in 1999 could
have reached the same diagnosis of “complex trauma syndrome” or “complex PTSD.”
(Doc. 91 at 228-229). Dr. Benedict assumed that “child and adolescent trained
clinicians” were available to testify regarding “complex trauma syndrome” in Alabama
in 1999. (Id. at 230).
The State objected to the court’s consideration of Dr. Benedict’s opinion and
testimony regarding his opinion that Mr. Williams suffers from “complex post110
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traumatic stress syndrome.” (Doc. 89 at 31). First, the State argues that Mr. Williams
never raised any claim in his habeas petition “regarding trial counsel’s failure to present
expert testimony from a psychologist” and that he never raised a claim of ineffective
assistance of counsel for failure to present psychological testimony in his Rule 32
petition. (Id.). But Mr. Williams specifically argued in his amended habeas petition in
the context of a failure to investigate claim that “[a]lthough a thorough, defense
sponsored, mental health evaluation was essential to Mr. Williams’ defense, trial
counsel failed to obtain one.” (Doc. 5 at 36) (citing Fortenberry v. Haley, 297 F.3d
1213, 1126 (11th Cir. 2002) (“The duty to investigate requires that counsel ‘conduct a
substantial investigation into any of his client’s plausible lines of defense.’”). So, the
court finds that Mr. Williams has presented Dr. Benedict’s testimony and report as part
of the failure to investigate claim that is properly before this court.
The State also argues that the court should not consider Dr. Benedict’s opinion
and testimony regarding his diagnosis of “complex trauma syndrom” because Dr.
Benedict conducted no testing for psychological trauma on Mr. Williams; Dr. Benedict
admitted that Mr. Williams did not describe his encounters with Mario as “traumatic”;
the DSM-4 diagnostic manual did not in 1999 and does not currently recognize
“complex trauma syndrome” as a diagnosable mental disorder; and Dr. Benedict
testified that Mr. Williams’ alleged “complex post traumatic stress disorder” did not
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manifest until 2007, nearly a decade after the trial. (Doc. 89 at 33-34).
And Dr. King, the State’s expert, testified at the evidentiary hearing that neither
the DSM-4 or DSM-5 diagnostic manuals contain a diagnosis of “complex trauma
syndrome.” (Doc. 92 at 55). Dr. King also indicated that complex trauma syndrome
“was actually originally proposed in 1994, didn’t gel in terms of possibility until about
2005, 2006, [and] now is under consideration.” (Doc. 92 at 56). He explained that this
syndrome would be “subsumed under posttraumatic stress disorder,” a mental disorder
from which both Dr. Mendel and Dr. King found Mr. Williams did not suffer at the
time of the crime. (Doc. 92 at 56-57 & Doc. 93 at 93).
Because the DSM-4 diagnostic manual in effect at the time of Mr. Williams’ trial
did not include “complex trauma syndrome” as a recognized diagnosis, the court finds
that Mr. Williams’ counsel in 1999 could not have found an expert like Dr. Benedict
who would have testified that Mr. Williams suffered from that syndrome. So the court
will not consider Dr. Benedict’s testimony or opinion regarding his “complex trauma
syndrome” diagnosis of Mr. Williams.
But the court finds that Mr. Williams’ trial counsel in 1999 could have found an
expert like Dr. Benedict who could have testified regarding the impact of Mr. Williams’
sexual abuse by Mario and overall dysfunctional upbringing on his psychological
development. So, the court will consider Dr. Benedict’s testimony and opinion as it
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relates to Mr. Williams’ childhood experiences on his psychological development for
mitigation purposes.
b. Evidence that a Reasonable Investigation Would have Uncovered
In addition to the evidence that trial counsel already presented during the penaltyphase presentation at Mr. Williams’ trial, the jury would have heard the evidence as set
out in detail supra in the evidentiary hearing section of this Memorandum Opinion.
Had Mr. Williams’ trial counsel conducted a thorough mitigation investigation, the jury
and the trial judge would have heard the following mitigation evidence:
! While in the care of his alcoholic mother, Mr. Williams was sexually
abused three or four times between the ages of four and six by an older boy
Mario Mostello when Mr. Williams and his mother Charlene lived with the
Mostellos. Mr. Williams felt shame and depression, had thoughts of
hurting or killing himself, began having nightmares about falling off a cliff
or drowning, began wetting the bed after his sexual abuse by Mario, and
had difficulty maintaining a relationship with a girl for more than three
months.
! Mr. Williams was exposed to adult sexual relations early in his life when
living with his mother until around the age of six or seven when Charlene
would have boyfriends sleep in the same bed that she shared with Mr.
Williams. Mr. Williams would wake up in his mother’s bed and find men
in the same bed with him.
! Charlene had poor parenting skills; lived with her children in poverty,
sometimes in homes without running water, plumbing, or electricity; left
the children to fend for themselves; and did not appropriately supervise her
children.
! Charlene abandoned Mr. Williams when he was around six or seven years
old because of her alcohol use and inability to properly care for him. Mr.
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Williams’ contact with his mother after the abandonment was inconsistent,
resulting in various reunions and painful separations from her. Because of
Charlene’s abandonment of Mr. Williams, he bounced between living with
different relatives many times and never had a particular place he called
home. Mr. Williams felt unwanted, rejected, abandoned, and betrayed
throughout his life because of Charlene’s abandonment.
! When Mr. Williams was only ten years old, his teenage cousin Brian
arranged for Mr. Williams to watch Brian having sex with girls. Mr.
Williams became sexually active with females at the young age of ten. Mr.
Williams was hypersexual as a young boy and had one hundred fifty to
two hundred sexual partners by the time he was arrested in an effort to
prove that he was not gay. Mr. Williams also became hypermasculine and
aggressive in his teenage years because of his childhood sexual abuse.
! Sexual abuse was rampant throughout Mr. Williams’ family. Mr.
Williams’s great-grandmother, Beulah, was reportedly raped by her uncle;
his grandmother Laura’s first child was fathered by her cousin; his aunt
Veronica was molested as a child by her aunt’s boyfriend; and his cousin
Brian Williams, in addition to allowing Mr. Williams to watch him having
sex with his girlfriend, molested Mr. Williams’s sister LaCharo and his
cousin Zakia Fomby.
! When he was twelve or thirteen years old, Mr. Williams witnessed
domestic abuse involving his mother Charlene and her boyfriend Jeff
Deavers. Mr. Deavers struck Charlene with his bare hands, and Mr.
Williams grabbed a knife and tried to stab Mr. Deavers.
! When Mr. Williams was a teenager and living with Eloise, her husband
Robert physically abused Mr. Williams by picking him up in the air and
body slamming him to the ground because Mr. Williams walked away
from the stove when he was cooking.
! Mr. Williams was raised by and lived with alcoholics during his childhood,
including his mother Charlene, his great-grandmother Beulah, and his
uncle Robert Williams. Beulah drank so heavily that she would become
incoherent and urinate on herself; Charlene would drink heavily and party
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instead of watching her children, leaving Mr. Williams’ susceptible to the
sexual abuse by Mario; Charlene was influenced to drink heavily by
Beulah and other relatives she saw abusing alcohol; and Robert was a
heavy drinker who drank almost every day to the point of intoxication.
! Mr. Williams began drinking alcohol as a young teenager and was heavily
drinking and often drunk by the time he was sixteen or seventeen years
old. After his expulsion from the Job Corp about ten days before the
murder, Mr. Williams was drinking excessively and smoking marijuana.
Counsels’ failure to thoroughly investigate Mr. Williams’ background deprived
the jury and the trial judge from hearing any of this powerful mitigating evidence.
B. Prejudice
But the ineffective assistance of counsel claim based on an unreasonable
mitigation investigation does not end with a finding of deficient performance. Mr.
Williams must also show that he was prejudiced by his counsels’ deficient performance.
In this case, the court finds that, not only was Mr. Williams’ counsels’ performance
deficient because they failed to conduct a thorough mitigation investigation as set out in
detail supra, that failure prejudiced Mr. Williams.
To prove prejudice, Mr. Williams must show a “reasonable probability that,
absent the errors, the sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.’” Jones v. Sec’y,
Florida Dep’t of Corr., 834 F.3d 1299, 1312 (11th Cir. 2016) (quoting Strickland, 466
U.S. at 695) (emphasis added). “A reasonable probability is a probability sufficient to
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undermine confidence in the outcome, which is a lesser showing than a preponderance
of the evidence.” Sealey v. Warden, Georgia Diagnostic Prison, 954 F.3d 1338, 1360
(11th Cir. 2020) (internal quotation marks and citations omitted) (quoting Strickland,
466 U.S. at 694) (emphasis added).
In evaluating that probability, this court must “consider the totality of the
available mitigation evidence – both that adduced at trial, and the evidence adduced in
the habeas proceeding – and reweigh it against the evidence in aggravation.” Id.
(quoting Porter v. McCollum, 558 U.S. 30, 41 (2009)). Taking into consideration all of
the evidence presented at both the penalty phase of Mr. Williams’s trial and the
evidence from the evidentiary hearing that a reasonable mitigation investigation would
have revealed, this court finds that Mr. Williams has established a reasonable
probability that his sentence would have been different but for his trial counsel’s
deficient performance.
As an initial matter, the court finds that Mr. Williams failed to present any
evidence or testimony regarding what Mr. Williams’ closest friend Alister Cook would
have told the jury about Mr. Williams’ background; his family’s history of mental
illness; or Mr. Williams’ “redeeming characteristics.” Mr. Williams did not call Mr.
Cook as a witness at the evidentiary hearing and did not submit an affidavit from him
that the court can find; so the court has no evidence about what Mr. Cook would have
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testified regarding Mr. Williams’ background. Mr. Williams also did not call any of the
individuals he listed in his amended petition as witnesses at the evidentiary hearing who
could have testified about Mr. Williams’ redeeming characteristics. See (Doc. 5 at 63).
And none of the witnesses that testified at the evidentiary hearing testified about any
history of mental illness in Mr. Williams’ family.
So, Mr. Williams has failed to show how counsels’ failures to interview Mr.
Cook, investigate Mr. Williams’ background for his family’s history of mental illness,
or present mitigating evidence about his “redeeming characteristics” prejudiced Mr.
Williams. So, the court will deny Mr. Williams’ failure to investigate claims on just
these three specific grounds. But the court will grant Mr. Williams failure-toinvestigate claims on all other grounds because he has shown both deficient
performance and prejudice on those claims.
The court finds that the mitigation evidence presented at the evidentiary hearing
“‘paints a vastly different picture of [Mr. Williams’] background than that created by
the actual penalty-phase testimony’” of Charlene and Eloise. See Debruce v. Comm’r,
Ala. Dep’t of Corr., 758 F.3d 1263, 1276 (11th Cir. 2014) (quoting Williams v. Allen,
542 F.3d 1326, 1342 (11th Cir. 2008)). Charlene’s brief testimony at the penalty phase
of the trial that her family had to step in to help her raise Mr. Williams because she was
a “young girl,” that Mr. Williams had never been a problem child to her in any way, and
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that she spent a lot of time with him when he was growing up failed to touch the
surface of the depth of dysfunction that Mr. Williams experienced being raised solely
by his alcoholic mother until the age of six. In fact, the court agrees with Mr. Williams
that Charlene’s testimony “minimized the instability in Marcus’s life” in the eyes of the
jury. See (Doc. 88 at 65). Likewise, Eloise’s brief testimony at the penalty phase of
the trial that Mr. Williams had an unstable life and moved between different family
members did not give the jury a complete picture of Mr. Williams troubled background
as a child. Although counsel nominally presented a mitigation case, “the record leaves
no doubt that counsel’s investigation to support that case was an empty exercise.” See
Andrus, 140 S. Ct. at 1882.
Contrary to the State’s argument, the court finds that all of the powerful
mitigating evidence that Mr. Williams’ counsel failed to elicit at the penalty phase of the
trial was not duplicative because the jury never heard any of the specific details of his
troubled background. And in this case, “the nature, quality, and volume of the
mitigation evidence is significant enough to conclude that it ‘bears no relation’ to the
cursory evidence that trial counsel presented” at the penalty phase of the trial. See
Daniel v. Comm’r, Alabama Dep’t of Corr., 822 F.3d 1248, 1276 (11th Cir. 2016)
(citing Rompilla v. Beard, 545 U.S. 374, 393 (2005) (emphasis added). Trial counsel
barely and vaguely touched the surface of Mr. Williams’ troubled childhood and failed
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to give the jury powerful mitigation evidence readily available to counsel.
Mr. Williams’ trial counsel failed to present any evidence at the penalty phase
regarding Charlene’s alcohol abuse and the impact it had on her ability to raise Mr.
Williams; Charlene’s abandonment of Mr. Williams when he was around six or seven
years old because she could not adequately take care of or provide for him and the
traumatic effect this abandonment had on Mr. Williams; the poverty in which Mr.
Williams lived when he lived with Charlene; Mr. Williams’ early exposure to adult
sexual relations when Charlene allowed boyfriends to sleep in the same bed that she
shared with Mr. Williams; Mr. Williams’ exposure to domestic violence between
Charlene and her boyfriend Jeff Deavers; and Mr. Williams’ inconsistent contact with
his mother throughout his childhood that led to various reunions and painful separations
from her that left him feeling rejected and unwanted.
And Mr. Williams’ trial counsel failed to elicit from Eloise at the penalty phase of
the trial any testimony regarding Charlene’s alcohol abuse and neglect of Mr. Williams
when he lived with Charlene until about the age of six or seven; the conditions of
poverty in which Mr. Williams was raised; Mr. Williams’ family history of alcohol
abuse by those with whom he lived at times in his childhood, including Beulah and
Eloise’s husband Robert; and the extensive history of sexual abuse that was rampant in
Mr. Williams’ family, including the sexual abuse of his sister by his cousin Brian.
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Trial counsel also failed to present any evidence at the penalty phase that Mr.
Williams’ teenage cousin Brian arranged for Mr. Williams around the age of ten to
watch Brian having sexual intercourse with females; that Mr. Williams began having
sexual intercourse with girls at the age of ten; or that Mr. Williams was hypersexual and
had about one hundred fifty to two hundred sexual partners by the time he was twentyone years old. All of this evidence was not duplicative and would constitute powerful
mitigating evidence, especially in light of Dr. Mendel’s testimony tying these sexual
behaviors with Mr. Williams sexual abuse at a young age.
And the evidence of Mr. Williams’ sexual abuse by Mario is also powerful
mitigation evidence that the jury never heard because of trial counsel’s deficient
performance. See Daniel, 822 F.3d at 1276 (“Both the Supreme Court and this Court
have recognized the long-lasting effects child sexual abuse has on its victims.”). As the
Eleventh Circuit stated in this case, evidence of Mr. Williams’ sexual abuse at the hands
of an older boy was neither “cumulative” nor a “double-edged sword.” Williams, 791
F.3d at 1277. In fact, according to the Eleventh Circuit, evidence that Mr. Williams
was a victim of sexual abuse during his childhood formative years is “precisely the type
of evidence that is ‘relevant to assessing a defendant’s moral culpability.’” See id.
(quoting Wiggins v. Smith, 539 U.S. 510, 535 (2003)).
The court acknowledges the testimony at the evidentiary hearing that Mario may
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not have been “ten or twelve” years older than Mr. Williams; that one of instances of
sexual abuse may have occurred in Missouri and not Ohio; and that the abuse may have
also involved Mr. Williams’ touching and penetration of Mario. But despite these
discrepancies, the court agrees with Dr. Mendel that Mr. Williams’ account of his
sexual abuse by Mario is credible. The court credits Mr. Williams’ testimony at the
evidentiary hearing regarding the sexual abuse by Mario and Dr. Mendel’s testimony at
the evidentiary hearing that he assessed Mr. Williams’ account of his childhood sexual
abuse by Mario with “the greatest level of skepticism” and had no doubt that Mr.
Williams had been sexually abused by Mario. See (Doc. 93 at 85).
Although the court cannot ascertain from the record the exact age of Mario at the
time of his sexual abuse of Mr. Williams, the court finds based on the testimony that
Mario was old enough to babysit Mr. Williams and was probably at least six years older
than Mr. Williams based on the testimony of Eloise. The fact that Mr. Williams was
left in Mario’s care while his mother was not present supports Mr. Williams belief that
Mario was ten to twelve years older than him at the time of the sexual abuse. And the
fact that Mr. Williams was mistaken about the age of Mario does not discredit his belief
that Mario was much older than him at the time of the sexual abuse.
Also, Mr. Williams’ mistaken belief that he and Charlene lived with the
Mostellas in Ohio instead of Missouri does not negate that Mario sexually abused him.
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In fact, given Mr. Williams young age at the time of his four-month stay in Missouri,
the court finds that mistake would not undermine the credibility of the mitigating effects
of the sexual abuse.
And even though Mr. Williams was inconsistent about whether he reciprocally
penetrated or touched Mario, that fact does not eliminate the mitigating effect that
Mario’s grooming and sexual abuse of a little boy about six years younger than him
could have on a jury. Although Dr. Mendel testified that he could not explain that
discrepancy, he still had no doubt that Mr. Williams had been groomed and sexually
abused by Mario. And the court credits Dr. Mendel’s testimony that he believes
strongly that, if Mario had not sexually abused Mr. Williams, he would not have
committed sexual violence. The court finds Dr. Mendel’s testimony persuasive and
credible.
And Dr. King did not testify that he did not believe that the sexual abuse by
Mario never happened. Instead, Dr. King testified that Mr. Williams’ sexual encounter
with Mario was just two pre-pubescent children engaging in homosexual
experimentation to which Mr. Williams did not react with horror and did not describe as
a “traumatic event.” (Doc. 92 at 49). Dr. King testified that Mario’s behavior was not
abnormal because sixty percent of children under teenage years engage in some kind of
homosexual activity. (Doc. 92 at 49).
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But the court finds that a reasonable probability exists that the jury could credit
Dr. Mendel’s testimony on this issue as more persuasive. Dr. Mendel explained that
even a four year age difference between Mr. Williams and Mario would be a
“significant” age difference in terms of the impact of the sexual abuse on Mr. Williams
and a six-year age difference would be “very significant.” (Doc. 93 at 99). Dr. Mendel
acknowledge the study that indicates sixty percent of children under the age of twelve
“play doctor” and agreed that sexual touching and exploration between children of
similar ages may not “particularly mean anything.” (Doc. 93 at 126). But Dr. Mendel
testified that actual sexual intercourse, like sodomy, initiated by a boy about six years
older than the victim is not normal sexual exploration for prepubescent children. (Doc.
93 at 124, 126). The court finds Dr. Mendel’s testimony on this issue more persuasive
than Dr. King’s testimony.
And although the State’s expert Dr. King testified that Mr. Williams did not
suffer from PTSD as a result of the sexual abuse by Mario, Dr. King also stated the lack
of a PTSD diagnosis “doesn’t mean that [Mr. Williams] doesn’t have maybe some other
kinds of symptoms that would go along with discomfort about previous sexual
encounters, sexual activity.” (Doc. 92 at 81). And Dr. King testified that, even though
he believed that Mr. Williams’ sexual abuse by Mario was not a “traumatic event” for a
PTSD diagnosis, “[t]hat’s not to say it wasn’t a problematic event in his life.” (Doc. 92
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at 49). So even Dr. King agreed that Mr. Williams’ sexual abuse by Mario could have
affected Mr. Williams negatively.
The Supreme Court and the Eleventh Circuit have repeatedly held that the failure
to investigate and present available mitigating evidence of a troubled childhood,
including parental abandonment, alcoholism, domestic violence, poverty, and sexual
abuse, during the penalty phase of a capital murder trial is both deficient and
prejudicial. See Rompilla v. Beard, 545 U.S. 374 (2005) (petitioner was prejudiced by
trial counsel’s failure to investigate and present evidence of parent’s alcoholism,
domestic violence, physical abuse, poverty, and inadequate living conditions); Wiggins
v. State, 539 U.S. 510 (2003) (petitioner was prejudiced by trial counsel’s failure to
investigate and present mitigating evidence of an “alcoholic, absentee mother,”
abandonment, poverty, neglect, and sexual abuse during childhood); Johnson v. Sec’y,
DOC, 643 F.3d 907 (11th Cir. 2011) (petitioner was prejudiced by trial counsel’s
failure to investigate and present mitigating evidence of parents’ alcoholism, childhood
abandonment, abuse, family history of drug use, poverty, and neglect).
Moreover, even the State’s expert Dr. King testified that the facts that Mr.
Williams was “sexually active beginning at age ten,” had “multiple sexual partners,”
had difficulty maintaining a relationship with a girl for more than three months, had an
older boy “arrange[] for him to observe that older teenager having sex with women or
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girls,” never had a place he felt was his home, lived with alcoholics who drank to the
point of being drunk, and lived at times with people who “had themselves been sexually
abused years previously” were all relevant to evaluate Mr. Williams’ “conduct or his
mental or emotional condition.” (Doc. 92 at 87-90). Dr. King explained that all of
those facts would be “relevant in terms of understanding his childhood situation,
adolescent development,” “in terms of he didn’t have very good childhood and wasn’t
given the appropriate kind of stable situation that we like to see children have,” and “in
terms of the development of what we call personality disorder because that’s where
those kinds of things start.” (Doc. 92 at 89). The court finds that those facts would
have been particularly relevant and mitigating given the sexual nature of Mr. Williams’
crime and the role that alcohol and drugs played in that crime. But the jury never heard
any of those mitigating factors because of trial counsel’s deficient performance.
The State argues that the “mitigation factor” of Mr. Williams’ “unstable
childhood would have been undercut by the fact that he was given a chance at a stable,
structured, nurturing home, but rejected it because he didn’t like the beneficial rules put
in place by his Aunt Eloise.” See (Doc. 89 at 30). But while Mr. Williams lived with
Eloise who provided some stability, he was also living with her husband Robert who
was an alcoholic who physically abused him by body slamming him to the ground.
And while living with Eloise, Mr. Williams struggled with wanting to be with his
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mother who he felt rejected and abandoned him. As Dr. Mendel testified, Mr.
Williams’ feelings of abandonment and rejection by his mother greatly impacted his
psychological development. The jury never heard those facts.
And the court finds that evidence regarding Mr. Williams’ alcohol abuse as a
young teenager and his family history of alcoholism was not a “doubled-edged sword.”
Mr. Funderburg and Ms. Wilson actually argued to the jury that Mr. Williams’ alcohol
and drug abuse on the day of the crime was a mitigating factor for the jury to consider.
And as both Dr. Mendel and Dr. King testified, Mr. Williams would not have been on
trial for his life but for his alcohol and drug abuse the day of the crime. See (Docs. 92
at 86 & 93 at 82). But because trial counsel presented no evidence at the penalty phase
regarding when Mr. Williams began drinking, his possible predisposition to alcoholism
given his family history, or the excessive drinking modeled by close relatives with
whom he lived, counsel failed to give the jury any background mitigating evidence to
explain his alcohol abuse on the day of the crime. Instead, the jury was left with the
impression that Mr. Williams’ alcohol abuse on the day of the crime was a result solely
of his moral failure with no explanation as to when or why Mr. Williams began abusing
alcohol.
Also, as mitigating circumstances, trial counsel argued at the penalty phase, and
the jury considered, that Mr. Williams was only twenty-one years old at the time of the
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crime; that he was under the influence of alcohol at the time of the crime; that he had no
significant prior criminal history; that he cooperated with law enforcement in confessing
to the crime; that he had no disciplinary issues while in jail awaiting trial; and that he
expressed remorse for the crime. (Vol. 3, Tab 21 at 573-74). In sentencing Mr.
Williams, the trial court found the following mitigating circumstances existed: Mr.
Williams’s lack of a criminal history; his unstable home life as a child; his frustration
from an injury ending his hopes of an athletic career; his obtaining a GED; and his
remorse. (Vol. 4 at 631-38). The trial court found the following mitigating factors
argued by the defense did not exist: Mr. Williams’s age at the time of the offense; his
capacity to appreciate the criminality of his conduct due to marijuana and alcohol use at
the time of the offense; and his cooperation with law enforcement. (Id. at 636-37).
Weighing the mitigating evidence actually presented at the penalty phase and the
additional mitigating evidence that counsel could have presented in the penalty phase
against the one aggravating factor the prosecution argued in the penalty phase, the court
finds that the scale tips in favor of a reasonable probability that the jury would have
reached a different conclusion.
During the penalty phase of Mr. Williams’s trial, the state argued only one
aggravating circumstance, “[t]hat the capital offense was committed while the
defendant was engaged in commission of or an attempt to commit rape, robbery,
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burglary or kidnapping.” (Vol. 3, Tab 18 at 552; Vol. 3, Tab 23 at 584; Vol. 4 at 601).
The court specifically instructed the jury that it could not consider any other aggravating
circumstance. (Vol. 3, Tab 23 at 584). If this court granted Mr. Williams’ habeas
petition in this case, no doubt the state would again argue the same aggravating
circumstance. This one aggravating factor does not outweigh the powerful mitigation
evidence present in this case.
The court acknowledges that, if Mr. Williams were granted a new sentencing
hearing, the state could also present evidence of Mr. Williams’ future dangerousness
that just eighteen days after the murder of Ms. Rowell on November 6, 1996, Mr.
Williams broke into the home of Lottie Turner during the night of November 24, 1996
and attempted to rape her. (See Doc. 84-22 at 59-60).
9 On May 20, 1997, a St. Clair
9 After his arrest, Mr. Williams confessed in a written statement, to breaking into Ms.
Turner’s house “with sex in mind.” (Petitioner’s Exhibit 1 at 525). Mr. Williams explained that he
had been drinking and “smok[ing] a lot [of] weed” all day, when he and his friend Alister Cook left
the party around midnight to go pick up some girls. (Id.). Mr. Williams got “upset” and “snapped”
when his plans “didn’t work out with those females.” (Id.). Mr. Williams described the crime as
follows:
I walk around to the back of [Lottie Turner’s] house and I put my gloves on try to
open two bedroom windows, no luck so I tried the ___ one and I wasin there. I took
off my clothes outside and went in through the window. I found her in bed so I
stripped on down out of my underwear and enter the bedroom crawling to the foot
of her bed. I went to raise up and crawl on top of her. She wakes up. She tries to hit
[me] with something so we tussle and finally I got [her] pin down. Istarted fondling
her breast and rubbing my penis on her breast. At thistime I[was] holding her down.
I told her all I wanted was sex and not to hurt her. I told her this several times. She
grabs my shirt when I was about to leave so I could not leave until she realized that
I wasn’t going to hurt her. It was 6:30 am [when] she finally let go. So I grab[b]ed
my glove and my boxers and jumped out of the window. I threw my clothes on and
ran into the woods . . . .
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County grand jury indicted Mr. Williams on a charge of first degree burglary in the
Lottie Turner case. See https://v2.alacourt.com, State of Alabama v. Marcus Bernard
Williams, Case No. CC-1997-000083.00.10 On March 2, 1999, less than a week after
the guilt and penalty phases of his capital murder trial, and a month before the
sentencing hearing, Mr. Williams entered a plea of guilty to first degree burglary, and
was sentenced to twenty-five years’ imprisonment. (Id.).
Because Mr. Williams had not been convicted in the Turner burglary case at the
time of the penalty phase of his trial, the state did not and could not have argued that
case as a statutory aggravating circumstance. See Alabama Code § 13A-5-49(2) (a
prior conviction of a felony involving the use or threat of violence to the person can be
used as an aggravating circumstance). But the trial court took judicial notice of Mr.
Williams’s conviction in the Turner burglary case. (Id. at 634). The trial court did not
“consider this subsequent act by [Mr. Williams] for any purposes of aggravation,” but
did consider it as evidence of his state of mind in determining that Mr. Williams’s
(Id.). Mr. Williams blamed the crime on “lack of sex and too much alcohol and drugs.” (Id.). Mr.
Williams also apologized “for the two women [he had] hurt,” and asked for help “find[ing] histrue
self again.” (Id.).
10
The court takes judicial notice of the state court records available on the state’s Alacourt
website. See Keith v. DeKalb County, Ga., 749 F.3d 1034, 1041 n.18 (11th Cir. 2014) (taking
judicial notice of DeKalb County Superior Court Online Judicial System pursuant to Federal Rule
of Evidence 201); see also Grider v. Cook, 522 Fed. Appx. 544, 545 n.2 (11th Cir. 2013) (“the
district court was permitted to take judicial notice of Grider’s state court criminal proceedings”).
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capacity to appreciate the criminality of his actions due to his use of marijuana and
alcohol, and his cooperation with law enforcement were not mitigating circumstances in
his case. (Id. at 634-37).
And the State could have presented evidence of this similar crime at the penalty
phase of the trial to show Mr. Williams’ future dangerousness, but chose not do to so.
11
But, upon re-sentencing, the State could introduce the Turner burglary to show Mr.
Williams’ future dangerousness. Alabama Courts have held that remarks on future
dangerousness are proper in determining “what weight should be afforded the
aggravating circumstances that the State had proven.” Floyd v. State, CR-13-0623,
2017 WL 2889566 at 63 (Ala. Crim. App. July 7, 2017). As the Floyd court explained:
Although future dangerousness is not an aggravating circumstance under §
13A-5-49, Ala. Code 1975, “future dangerousness [is] a subject of
inestimable concern at the penalty phase of the trial” and evidence and
argument about future dangerousness are permissible. McGriff v. State,
908 So.2d 961, 1013 (Ala. Crim. App. 2000), rev’d on other grounds, 908
So.2d 1024 (Ala. 2004). See also Whatley v. State, 146 So.3d 437, 481-82
(Ala. Crim. App. 2010) (holding that evidence of a capital defendant’s
future dangerousness is admissible during the penalty phase of the trial
under § 13A-5-45(d), Ala. Code 1975); and Arthur v. State, 575 So.2d
1165, 1185 (Ala. Crim. App. 1990) (holding that prosecutor’s remark
during penalty phase of capital trial that the defendant would kill again if
given the chance was “proper because [it] concerned the valid sentencing
factor of [the defendant’s] future dangerousness.”).
11 Mr. Williams’s trial counsel, Erskine Funderburg, testified at the evidentiary
hearing that the State tried to get the Turner case into evidence in the guilt phase of the trial,
“but [defense counsel] were able to keep it out.” (Doc. 91 at 76).
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Id.
But the court finds that the fact that Mr. Williams would never be eligible for
parole would undercut the State’s future dangerousness evidence. The Supreme Court
has held that “where the defendant’s future dangerousness is at issue, and state law
prohibits the defendant’s release on parole, due process requires that the sentencing jury
be informed that the defendant is parole ineligible.”
12
Simmons v. South Carolina, 512
U.S. 154, 156, 162 (1994). The Court in Simmons reasoned that, in assessing future
dangerousness during the penalty phase of a capital trial, “the actual duration of the
defendant’s prison sentence is indisputably relevant” because a jury could “view a
defendant who is eligible for parole as a greater threat to society than a defendant who
is not. Indeed, there may be no greater assurance of a defendant’s future
nondangerousness to the public than the fact that he never will be released on parole.”
Id. at 163-64 (emphasis added). The Supreme Court stated that “the fact that the
alternative sentence to death is life without parole will necessarily undercut the State’s
argument regarding the threat the defendant poses to society.” Id. at 169 (emphasis
12 The Court noted that, although South Carolina death penalty statutes “do not
mandate consideration of a defendant’s future dangerousness in capital sentencing, the
State’s evidence in aggravation is not limited to evidence relating to statutory aggravating
circumstances.” Simmons, 512 U.S. at 162-63. Likewise, Alabama law does not mandate
consideration of Williams’ future dangerousness, but a jury can consider future
dangerousness in capital sentencing. See Floyd v. State, CR-13-0623, 2017 WL 2889566
at 63 (Ala. Crim. App. July 7, 2017).
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added).
The Supreme Court again in 2017 reiterated how a sentence of life in prison
without the possibility of parole could minimize a defendant’s future dangerousness. In
Buck, the defendant’s sentence of death under Texas law required that the State prove
that he posed a threat of future dangerousness. Buck, 137 S. Ct. at 767. Buck’s
counsel presented evidence from an expert that “his client is liable to be a future danger
because of his race.” Id. at 765. In addressing the Strickland standard for ineffective
assistance of counsel, the Supreme Court in Buck found that “no competent defense
attorney would introduce such evidence about his own client.” Id. at 775.
In assessing the prejudice prong of Strickland, the Court in Buck addressed the
issue of “whether Buck had demonstrated a reasonable probability that, without Dr.
Quitjano’s testimony on race, at least one juror would have harbored a reasonable doubt
about whether Buck was likely to be violent in the future.”
13
Id. at 776. In finding that
Buck was prejudiced by his counsels’ deficient performance, the Court addressed
whether any mitigating circumstances would minimize Buck’s future dangerousness.
The Supreme court stated that “Buck’s prior violent acts had occurred outside of prison,
within the context of romantic relationships with women.” But the Court noted that
13
In Texas, a sentence of death requires an unanimous vote by the jury; if the jury vote
is not unanimous, a defendant would receive life without parole.
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“[i]f the jury did not impose a death sentence, Buck would be sentenced to life in
prison, and no such romantic relationship would be likely to arise. A jury could
conclude that those changes would minimize the prospect of future dangerousness.”
Buck, 137 S. Ct. at 776 (emphasis added).
Likewise, in Mr. Williams’ case, the trial judge instructed the jury that they had
two options for in the penalty phase of the trial under Alabama Law: “to sentence the
defendant to a term of life in prison without the possibility of parole . . . or to sentence
the defendant to death.” (Doc. 84-29 at 6). So, even if the State chose to present the
subsequent Turner burglary to the jury at the re-sentencing, Mr. Williams’s future
dangerousness evidenced by that burglary would be minimized by the fact that Mr.
Williams would never be eligible for parole and would pose no threat to the public at
large. Moreover, Mr. Williams’ counsel on re-sentencing could present evidence of his
prison record evidencing no violent history while incarcerated, which would further
minimize the significance of the State’s future dangerousness argument.
And the court agrees with Mr. Williams that his attempted rape of Ms. Turner
just eighteen days after his rape and murder of Ms. Rowell is “entirely consistent with
the portrait of Marcus’ psychological unraveling, stemming from his childhood sexual
abuse” and his plea for help for his sexual crimes. See (Doc. 88 at 90). Had counsel
investigated and presented evidence of Mr. Williams’ background, especially his
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childhood sexual abuse, the jury would have received powerful mitigating evidence to
give context for his adult sexual crimes. See New York v. Ferber, 458 U.S. 747, 758
n.9 (1982) (in the context of child pornography, the Court noted that “[i]t has been
found that sexually exploited children are unable to develop healthy affectionate
relationships in later life, having sexual dysfunctions, and have a tendency to become
sexual abusers as adults.”) (citations omitted). And Dr. Mendel testified at the hearing
that had Mario not sexually abused Mr. Williams, “there would not have been the
sexual violence” by Mr. Williams. (Doc. 93 at 85-86). So, evidence of Mr. Williams’
childhood sexual abuse by Mario and Mr. Williams’ subsequent hypersexualization may
have cast his sex-related crimes in a “different light.” See Wharton v. Chappell, 765
F.3d 953, 977 (9th Cir. 2014).
And the Supreme Court and the Eleventh Circuit have time and again found that
petitioners were prejudiced by their counsel’s deficient performance where the crimes
were more highly aggravated than Mr. Williams’ case involving only one aggravating
factor. See Porter v. McCollum, 558 U.S. 30, 40-44 (2009) (finding prejudice in a
two-victim murder case with three aggravating factors); Rompilla, 545 U.S. at 383
(finding prejudice despite three aggravating factors including that the murder was
committed in the course of a felony; that the petitioner had a “significant history of
felony convictions,” including a rape and assault conviction; and the murder was
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committed by torture); Williams v. Taylor, 529 U.S. 362, 399, 418 (finding prejudice
despite the fact that “in the months following the murder of Mr. Stone, Williams
savagely beat an elderly woman, stole two cars, set fire to a home, stabbed a man during
a robbery, set fire to the city jail, and confessed to having strong urges to choke other
inmates and to break a fellow prisoner’s jaw”) (Rehnquist, C.J., dissenting); Hardwick,
822 F.3d at 546 (finding prejudice when Hardwick had five aggravating factors,
including three prior felony convictions); Johnson, 643 F.3d at 911-912, 937-938
(finding prejudice despite Johnson having five mitigating factors, including being on
parole for burglary at the time of the murders and having prior felony convictions
involving the use of violence; Johnson also committed armed robbery and attempted
murder in Oregon just one month after he committed the two murders for which a jury
sentenced him to death); Cooper v. Sec’y Dep’t of Corr., 646 F.3d 1328, 1356 (11th
Cir. 2011) (finding prejudice despite a triple homicide and the presence of six
aggravating factors).
Recently, the Eleventh Circuit in Dallas v. Warden affirmed the district court’s
denial of habeas relief and found that counsel’s failure in 1994 to discover and present
allegations that Dallas had been sexually assaulted did not prejudice Dallas. 964 F.3d
1285, 1311 (11th Cir. 2020). But that case is distinguishable from Mr. Williams’ case
for many reasons. In contrast to Mr. Williams’ case, counsel in Dallas presented a
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“substantial” mitigation case during the penalty phase of the trial, including calling as
witnesses a licensed clinical psychologist, a defense mitigation consultant, two of
Dallas’ older siblings, the mother of Dallas’ children, a long-time friend who was with
Dallas around the time of the murder, and Dallas himself. Dallas and his siblings
testified at trial and “described at length” Dallas’ “deeply abusive childhood and a
thoroughly dysfunctional family.” His sister testified at trial that Dallas knew that she
was molested as a teenager and that she “ran away from home at eighteen to escape.”
But when Dallas’ brother testified at the penalty phase of the trial, he did not mention
being sexual abused. Dallas, 964 F.3d at 1291-1295.
Years later, Dallas’ brother, in a 2007 affidavit for Dallas’ federal habeas case,
alleged for the first time that he and Dallas were both sexually assaulted. Dallas’
brother explained in the affidavit that he “witnessed Donald being anally raped as well
as being forced to perform oral sex on this man”; that the sexual assault happened on at
least four occasions; but Dallas’ brother “did not identify the name of the abuser, the
time, or the location.” Id. at 1300.
The Eleventh Circuit in Dallas held that “although [the brother’s] new allegations
paint a darker picture of Dallas’ childhood, it does not standing alone raise a reasonable
probability that the jury would not have recommended that Dallas be sentenced to
death.” Id. at 1311 (emphasis added). The Court noted that trial counsel had called
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Dallas’ brother as a mitigation witness but he failed to mention the sexual abuse even
after his sister testified that she had been sexually molested. And, the Court in Dallas
found that “[u]ltimately and most critically, however, the aggravating factors were
overwhelming,” and that the sexual abuse allegation would not have outweighed the
four aggravating factors, especially where the “jury [already] heard many details of the
abuse and poverty-stricken conditions of Dallas’ childhood.” Id. at 1311 (emphasis
added).
In Mr. Williams’ case, unlike in Dallas, counsel conducted virtually no
mitigation investigation; the jury heard none of the details of Mr. Williams’ troubled
background; counsel failed to utilize funds for a mitigation investigator; and the case
involved only one aggravating factor. In this case, a reasonable probability exists that
the sexual abuse of Mr. Williams, in totality with all the other powerful mitigating
evidence the jury never heard, would have undermined the confidence in the outcome of
Mr. Williams’ sentencing.
The fact that Mr. Williams’ case is not highly aggravated further supports a
finding of prejudice in this case. See Wiggins v. Smith, 539 U.S. 510, 537 (2003)
(noting that Wiggins did not have a record of violent conduct to offset the mitigating
factors); Williams v. Allen, 542 F.3d 1326, 1343 (11 th Cir. 2008) (“Further supporting
a finding of prejudice is the fact that this case is not highly aggravated.”); Maples, 729
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F. App’x at 827 (“And the probability that one more juror would have been moved to
vote for life over death is further compounded by the limited aggravation in this
case—the state trial court found only one statutory aggravating factor applicable here.”).
And even though the jury heard none of the powerful mitigating evidence
produced at the evidentiary hearing, one juror still voted for life without parole. Had
the jury heard all of the powerful mitigating evidence about Mr. Williams’ sexual abuse
and troubling childhood background, a reasonable probability exists that more jurors
would have followed suit.
A failure of counsel to conduct a reasonable mitigation investigation is
prejudicial where, as in Mr. Williams’ case, such an investigation would have
uncovered an “‘excruciating life history.’” See Daniel, 822 F.3d at 1275 (quoting
Wiggins, 539 U.S. at 537). This mitigation evidence “might well have influenced the
jury’s appraisal of his moral culpability.” See Williams v. Taylor, 529 U.S. at 398.
Mr. Williams’ case is not one where the new evidence “would barely have altered the
sentencing profile presented to the sentencing judge.” See Porter, 558 U.S. at 41
(quotations and citations omitted). The jury and judge in Mr. Williams case heard
almost nothing that would allow them to “accurately gauge his moral culpability.” See
id.
A reasonable probability exists that the result of the sentencing proceeding would
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have been different had Mr. Williams’ counsel discovered, presented, and explained to
the jury the significance of all of the available evidence that Mr. Williams presented at
the evidentiary hearing. See Williams v. Taylor, 529 U.S. at 398. Had the jury and
judge been able to “place [Mr. Williams’] life history ‘on the mitigating side of the
scale,” a reasonable probability exists that the jury and sentencing judge “would have
struck a different balance.” See Wiggins, 539 U.S. at 537.
The court has carefully weighed all of the mitigating evidence presented at the
both the penalty phase and the evidentiary hearing against the limited aggravating
evidence in this case and finds that Mr. Williams has shown a reasonable probability
that but for his counsels’ deficient performance the jury would not have recommended
the death sentence.
and wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues presented
were adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (internal quotations omitted).
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This court’s denial of Mr. Williams ineffective assistance of counsel claims
involving counsels’ failure to interview Mr. Williams’ closest friend Alister Cook,
failure to investigate his family history of mental illness, and the failure to present his
redeeming characteristics because Mr. Williams has failed to show prejudice on these
three claims constitutes an adverse ruling on those claims. But those three claims do not
satisfy either standard for a certificate of appealability. Accordingly, a motion for a
certificate of appealability is due to be DENIED as to those three claims.
The court will enter a separate Order in accordance with this Memorandum
Opinion.
Outcome: Under a de novo standard of review, and for the reasons stated above, the court
finds that Mr. Williams has shown that his trial counsels’ performance was deficient for failing to investigate and present mitigation evidence at the penalty phase of the trial.
Mr. Williams has also shown that he was prejudiced by his trial counsels’ deficient
performance. The court therefore will GRANT Mr. Williams Amended Petition for
Writ of Habeas Corpus (doc. 5) as to all of his claims of ineffective assistance of
counsel during the penalty phase of his trial for failing to investigate and present
Plaintiff's Experts:
Defendant's Experts:
Comments: