December 5, 2017

Witness by witness, statement by statement, inkling by inkling, a pro bono team at Maslon put together a habeas corpus case that got its client off death row in a Texas prison.

Douglas Tyrone Armstrong was not exonerated of a murder he says he didn’t commit, but he will get a new punishment hearing and will be removed from death row, where he has been in solitary confinement for all but 10 hours per week for 10 years. He was represented by Maslon’s pro bono committee chair Julian Zebot, Catherine Ahlin-Halverson, Michael McCarthy and Nicole Narotzky. Many others were involved in the case during the 11 years the firm worked on the case.

The Texas Court of Criminal Appeals, in a 5-4 opinion, determined that Armstrong’s defense counsel failed to conduct a constitutionally adequate investigation of mitigating evidence. The lower court also found that the defense failed to investigate, but that Armstrong was not prejudiced thereby.

The team has brought other habeas issues that are yet to be resolved, i6ncluding Armstrong’s claim of actual innocence.

“Tyrone has consistently proclaimed his innocence,” Zebot said. His trial lawyers were ineffective at the culpability phase as well as the punishment phase — “essentially he didn’t get much of a defense at all.”

He added, “We are going to fight for the client’s complete exoneration.”

The eyewitness testimony changed several times during the process, shifting in a direction unfavorable to Armstrong, he said. Additionally, the physical evidence doesn’t match up to the rest of the evidence, he said.

Wiggins standard

The Texas court relied on Wiggins v. Smith, a 2003 Supreme Court opinion where the court said that the standard of review is whether counsel’s investigation was reasonable under prevailing professional norms, including a context-dependent consideration of the challenged conduct as seen from counsel’s perspective at the time. It’s unusual for a court to grant relief under Wiggins, Zebot said.

Maslon lawyers dug deeply into Armstrong’s history and presented additional evidence of his disadvantaged background and entirely new expert testimony with respect to his mental state at the time of the offense, not evidence that was essentially more of the same character of evidence presented at trial. A Wiggins claim is not barred by the presentation of some mitigating evidence by the trial counsel, if the habeas counsel provided new evidence that demonstrated a reasonable probability that at least one juror would have held out against the death penalty, the court said.

The most compelling evidence to the Texas court appeared to be the new mental health evidence, and it relied primarily on that to conclude that there was a reasonable probability of a different outcome had that evidence been available.

But to get to that expert testimony, the lawyers needed to develop more lay testimony, mostly from Armstrong’s family. They interviewed witnesses and were assisted by a mitigation investigator. They looked for school and medical efforts but most of them had been destroyed.

“The family was so brave in sharing their stories. They were willing to offer this really traumatic history to the experts and the court,” Ahlin-Halverson said. “You’re asking people to share extraordinarily painful personal history.”

“You could hear a pin drop when the family was testifying. It was absolutely riveting,” she said.

The lawyers and investigators worked to establish trust over time, Ahlin-Halverson continued. “The first time we met with the family members we didn’t learn everything. Every time we spoke with them we got a deeper and more comprehensive understanding.

“To me, the most important thing we did was stick with them, and be where we said we would be so they could learn to trust us.”

Critical to the success of the case is the strong internal team at Maslon.

“We had so many attorneys, paralegals and staff running around in different directions, gathering affidavits. The case was going to rise or fall on the strength of the people working on it,” Zebot said.

“It demonstrates Maslon’s commitment to pro bono. We literally spent thousands of hours,” Zebot said. It was also a significant financial commitment, he added.

History of abuse

The family member’s testimony included accounts of physical abuse endured by all the children, including Armstrong. Armstrong was frequently locked in an empty room for days at a time, with no food or access to a bathroom. The parents were alcoholics and both beat the children with some kind of tool. Armstrong was beaten in the head.

His siblings also learned to physically abuse him. Armstrong and his sister were the only siblings who had the same father, and he raped the sister, resulting in a pregnancy. There were other instances of sexual abuse in the family. Additionally, the parents spent all their resources on alcohol and never bought food for the children. The family moved constantly because the parents did not pay their rent. Armstrong was introduced to alcohol by his brother at the age of five.

Neuropsych evaluation key

The experts were Dr. Phillip D. Harvey, a clinical psychologist in the field of study and diagnosis of cognitive impairment; and Dr. Robert Lee Smith, a forensic psychologist and addiction specialist.

Harvey’s neuropsychological evidence was the “linchpin” of the court’s opinion, Ahlin-Halverson said. His diagnosis was borderline intellectual functioning and acquired dementia. The dementia was likely caused by substance abuse, repeated traumatic brain injury and extreme life stress, he said. Those symptoms were fully formed by the time of the murder for which Armstrong was convicted.

Smith diagnosed Armstrong with dysthymic disorder (long-standing depression), substance dependence and personality disorder-not otherwise specified. He attributed the dysthymia to environmental factors in Armstrong’s past.

The absence of psychological evidence was prejudicial, the court determined. The court could not determine that the state’s evidence would clearly outweigh the totality of the mitigation evidence, the court concluded.

Armstrong is incredibly grateful to his lawyers, Ahlin-Halverson said. He speaks of his love for his family often, she said.

At some hearings the judge has allowed Armstrong to greet and hug (unshackled) each of his family members, including his son. “That really brings it home, what he’s been through,” Zebot said.

“You’d have to have a heart of stone not to be moved,” Ahlin-Halverson said.