United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CAROL E. JACKSON, District Judge.
This matter is before the Court on petitioner's ex parte request under 18 U.S.C. § 3599(f) for authorization to retain a forensic psychiatrist to evaluate petitioner's decision-making capabilities and how they were affected by developmental trauma in his youth. For the following reasons, the request will be denied.
Petitioner was convicted by a jury of first-degree murder. Johnson v. State , 406 S.W.3d 892, 897 (Mo. banc 2013). The trial court adopted the jury's recommendation and sentenced him to death. Id . The evidence established that on July 5, 2005, police officers were in petitioner's neighborhood conducting an investigation. Id . Coincidentally, petitioner's younger brother suffered a seizure at his home and the police officers who were in the neighborhood were summoned to help. Id . The officers called for an ambulance, and additional officers were called to the scene. Id . Petitioner's brother was taken to the hospital, but he died a short time later due to a preexisting heart condition. Id . Later the same day, petitioner retrieved a handgun from his vehicle. Id . He told his friends that the officers were responsible for his brother's death. Id . While walking through the neighborhood, petitioner encountered one of the officers who had responded to help his brother. As the officer sat in his patrol car, petitioner shot and killed him. Id. at 898.
Under 18 U.S.C. § 3599(f), the Court may authorize payments for expert services that "are reasonably necessary for the representation of [a capital habeas petitioner], whether in connection with issues relating to guilt or the sentence." At issue is whether the requested expert services are reasonably necessary for the presentation of petitioner's federal habeas claims.
Petitioner argues that both trial counsel and postconviction counsel failed to investigate or develop claims regarding his childhood trauma and its effects on his decision-making abilities at the time of the offense. Petitioner concedes that postconviction counsel presented the evidence of two psychologists who testified that petitioner suffered from acute stress disorder ("ASD") at the time of the murder. However, petitioner argues that the diagnosis of acute stress disorder did not take into consideration the effect of the abuse and privation petitioner suffered from for most of his life.
Trial and post-conviction counsels' investigations were materially incomplete. For one thing, an acute stress disorder is just that: acute. The diagnosis, and the information provided to the evaluators, does not fully account for the long term effects of repeated traumatization in Mr. Johnson's early childhood years in the absence of the type of parental nurture and support that might have mitigated the impact of those stressors. Such stressors include ongoing physical abuse by numerous caregivers; abject neglect by a mother who failed to provide material support or adult supervision, and who left the family to live in rat-infested and otherwise unsanitary conditions; and abandonment not only by petitioner's mother, but also by his father, who spent the most of his son's childhood imprisoned for second-degree murder. This extremely lethal combination of repeated traumatization and the absence of parental nurture and support can have multiple serious impacts on the developing child, any one of which can render the individual vulnerable to distorted perceptions, hypervigilance, over-reactivity and generally poor decision-making. A qualified specialist must assess whether and how the known ongoing traumatic events impaired Mr. Johnson's development.
Ex Parte Mot. at 5 (citation omitted). Petitioner claims that the current mitigation investigation has revealed new sources of developmental trauma that should be examined by a forensic psychiatrist. "These include petitioner's history of extensive sexual abuse at the hands of petitioner's cousins and others; continuous violence in the community; and ongoing institutional racism especially as between the Kirkwood Police Department and the residents of the Meacham Park neighborhood." Id. at 5-6. Petitioner also claims that he hears voices, which he regards as alter-egos, and that he heard those voices at the time of the murder.
Petitioner seeks to retain Richard G. Dudley, Jr., M.D., who lives and works in New York, for services in the amount of $44, 550. Petitioner maintains that Dr. Dudley would require a total of 123 hours to interview petitioner, interview petitioner's close relatives and friends, review relevant records, consult with counsel, draft a report, and travel to and from New York. Petitioner's trial counsel chose not to present a diminished-capacity defense. Johnson v. State , No. SC92448, Appellant's Br., 2012 WL 6825478 *57-58 (Oct. 29, 2012). "[C]ounsel's strategy was to present standing alone the facts of what they considered a compelling story about Kevin's reaction to his brother's death because everyone has experienced the death of a loved one." Id . In his amended postconviction motion, petitioner argued that trial counsel was ineffective for failing to investigate and present records showing that petitioner was suffering from ASD at the time of the murder and was therefore unable to deliberate. Id. at *58. Postconviction counsel further argued that trial counsel was ineffective for failing to present evidence of petitioner's childhood abuse during the penalty phase. Id. at *61.
Postconviction counsel presented the testimony of two psychologists, Dr. Levin and Dr. Cross. Id. at *39.
Psychologist Daniel Levin testified in the post-conviction case to Kevin's history and mental functioning, based on his meeting with Kevin and his review of more than 3, 500 pages of Kevin's records from DFS; St. Louis County Family Court and Department of Mental Health; St. John's Hospital; several residential placements; and DOC; plus police reports, the trial transcript; Kevin's testimony, relevant statutes, and Levin's own report.
Id. at *2-3.
Dr. Cross also reviewed petitioner's records. Id. at 49. In addition, he "administered multiple tests - the Wechsler Adult Intelligence Scale (WAIS), the Wide Range Achievement Test (WRAT), the Minnesota Multiphasic Personality Inventory (MMPI), the Traumatic Stress Inventory (TSI), the Detailed Assessment of Post-Traumatic Stress (DAPS) (last 3), the Thematic Apperception Test (TAT), and the Rotter Incomplete Sentence Blank." Id. at 52. The tests showed that petitioner "had high levels of traumatic stress throughout his developmental years" and difficulty making decisions. Id.
Levin and Cross both testified at length that the abuse and privation petitioner suffered throughout most of his life led to ASD at the time of the murder. For example,
Levin recounted that DFS became involved when [petitioner's mother] Jada was hotlined when Kevin was two years old. The family had severe financial stress - Kevin's father was in prison for murder, and Jada, one of nine children, was very young when she started having children. The ...