Fodder for Ninth Circuit En Banc Call?

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Today’s unanimous Ninth Circuit panel ruling in Jones v. Ryan has plenty of ingredients that make me suspicious: (1) an opinion by Chief Judge Sidney Thomas, joined by two of his liberal colleagues; (2) granting habeas relief in a death penalty case on grounds of ineffective assistance of counsel; (3) overturning a denial of habeas relief by the district judge (Susan R. Bolton), a Clinton appointee; (4) finding that the prejudice prong of the habeas inquiry was met, based on counsel’s failure to obtain a defense mental-health expert for the penalty phase; (5) involving murders nearly three decades ago (in 1992); and (6) in a case in which the Supreme Court a decade ago vacated a previous ruling by Thomas granting habeas relief on grounds of ineffective assistance of counsel.

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On the fourth point: The panel opines that if defense counsel had secured a mental-health expert, that expert “could have provided substantial evidence … that [Danny Lee] Jones suffered from mental illness,” including “(1) cognitive dysfunction …; (2) poly-substance abuse; (3) post-traumatic stress disorder; (4) attention deficit/hyperactivity disorder; (5) mood disorder; (6) bipolar depressive disorder; and (7) a learning disorder.” But, by the panel’s own account, the sentencing judge in fact found as mitigating factors that Jones “suffered from long-term substance abuse”; that he “was under the influence of drugs and alcohol at the time of the offense”; that he “had a chaotic and abusive childhood”; and that “his longstanding substance abuse problem may have been caused by genetic factors and aggravated by head trauma.”

Is there really a “reasonable probability” that the additional mental-health testing that the panel thinks trial counsel should have done in order to meet the threshold of competent representation would have changed the judge’s sentencing?

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