Fernando Eros Caro v. Jeanne Woodford, Warden

280 F.3d 1247, 2002 Daily Journal DAR 1893, 2002 Cal. Daily Op. Serv. 1549, 2002 U.S. App. LEXIS 2557, 2002 WL 233541
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 19, 2002
Docket00-99013
StatusPublished
Cited by100 cases

This text of 280 F.3d 1247 (Fernando Eros Caro v. Jeanne Woodford, Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fernando Eros Caro v. Jeanne Woodford, Warden, 280 F.3d 1247, 2002 Daily Journal DAR 1893, 2002 Cal. Daily Op. Serv. 1549, 2002 U.S. App. LEXIS 2557, 2002 WL 233541 (9th Cir. 2002).

Opinions

FERGUSON, Circuit Judge.

A little explanation can go a long way. In this case, it might have made the difference between life and death. But, because trial counsel for Fernando Eros Caro failed to investigate and present evidence [1250]*1250of the impact that exposure to neurotoxi-cants and child abuse had on his brain, the penalty phase jury was deprived of this critical explanation in determining Caro’s culpability for his crime.

This is the second time that this case has come before this panel’s consideration. Previously, we held that counsel’s nonstrategic failure to investigate Caro’s brain damage, despite the known risk of neuro-toxicants, constituted deficient performance under Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that a showing of brain damage would demonstrate prejudice to establish his ineffective assistance of counsel claim. We remanded to the District Court to hold an evidentiary hearing to determine whether Caro, in fact, sustained brain damage as a result of his exposure to neurotoxicants and his personal background. The District Court found that Caro had established the existence of brain damage and, therefore, granted his writ of habeas corpus, vacated his death sentence, and ordered a resentencing hearing. The State appeals the Court’s decision, and we now affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. CARO’S PERSONAL BACKGROUND

Fernando Eros Caro, the son of poor farm laborers residing in Brawley, California, spent his childhood working and playing in pesticide-soaked fields. The house in which he was raised was surrounded by agricultural fields and did not protect the family from the crop dusters that overflew those fields. The water, which his family used to bathe and cook and clean, was contaminated by pesticides.

Caro’s exposure to toxic chemicals continued into adulthood. During high school, he worked as a “flagger” for a crop-dusting company, indicating for the planes where to spray the pesticides onto the fields. He later worked as a maintenance worker at FMC Chemical Corporation (“FMC”), a manufacturer of toxic pesticides. At the plant, Caro responded to chemical spills, repaired the ventilation system, and maintained the mixing and heating equipment. He was regularly exposed to organophosphates, solvents, orga-nochlorines, and carbamates, and he was poisoned by a number of toxic chemicals at the plant.

In addition, Caro has suffered serious physical abuse and head injuries. Caro’s family has a multi-generational history of physical abuse, alcoholism, and neglect. Both parents beat Caro throughout his childhood, hitting him with closed fists, sticks, belts, work boots, and tools. His father kicked him with his work boots, struck his head with tools, and once broke his nose. His mother frequently hit him as an infant until he would stop crying. Caro also sustained several head injuries as a child: he was born with a three inch lump on his head due to the use of forceps during his difficult delivery; a water cooler fell on his head at the age of three; and he was hit by a car later that year.

B. PROCEDURAL HISTORY

On October 16, 1981, Caro was convicted for the murders of Mary Booher and Mark Hatcher, teenage cousins who disappeared while on a bicycle ride and were killed by a close range gunshot to the head. Caro was also convicted of the assaults of Rick Donner and Jack Lucchesi, both of whom survived multiple gun shots inflicted on the same night as the murders.

On December 10, 1981, a second jury returned a verdict of death. The California Supreme Court affirmed. People v. Caro, 46 Cal.3d 1035, 251 Cal.Rptr. 757, [1251]*1251761 P.2d 680, 684 (1988). After exhausting his state remedies, Caro filed a 28 U.S.C. § 2254 habeas petition in the United States District Court for the Northern District of California. The District Court denied Caro’s request for an evidentiary hearing on his ineffective assistance of counsel claim, granted summary judgment for the State, and dismissed his habeas petition. On appeal, we found that Caro’s counsel had failed to investigate and present evidence of brain damage during the penalty phase of the trial and remanded for an evidentiary hearing to determine whether Caro had suffered brain damage as a result of his chronic and acute exposure to neurotoxicants and his personal background. Caro v. Calderon, 165 F.3d 1223, 1228 (9th Cir.), cert. denied, 527 U.S. 1049, 119 S.Ct. 2414, 144 L.Ed.2d 811 (1999).

On remand, the District Court concluded: “The record before the Court irrefutably establishes that Petitioner suffered brain damage as a result of his exposure to toxic pesticides as well as his personal background.” Caro v. Woodford, No. C-93-4159-JW, Slip Op. at 16 (N.D.Cal. Aug. 7, 2000). Accordingly, it granted Caro’s writ of habeas corpus as to the penalty phase of his trial. This timely appeal followed.

C. THE EVIDENTIARY HEARING

At the evidentiary hearing, Caro presented the testimony of Dr. Jonathan Pincus, a neurologist; Dr. David Bear, a neu-ropsychiatrist; and Donald Ecobichon, Ph.D, a toxicologist. Each of these expert witnesses testified that, at the time of his trial, he would have found Caro to suffer from brain damage due to his exposure to neurotoxicants, his personal history, or some combination thereof.

The State presented no witnesses at the hearing, relying instead on the cross-examination of Caro’s experts. The State attempted to discredit the experts’ conclusions that Caro suffered from brain damage at the time of his trial, pointing out his high marks in school, satisfactory performance in the Marines, negative blood results for pesticides, reasonably high IQ, rationality of actions in covering up the murders, and normal psychiatric and neurological evaluations taken both before and after his trial. Yet, each of the experts testified that none of these facts was inconsistent with a finding of brain damage, especially frontal brain damage. Moreover, Dr. Pincus concluded that it is “highly likely” that the brain damage existed at the time of Caro’s trial, based on both a lack of “significant” subsequent injuries and the fact that mixed dominance is indicative of childhood brain damage.

The State also attempted to prove that, at the time of Caro’s trial, the medical community did not have the data nor the methods necessary to ascertain whether Caro had suffered brain damage due to his exposure to neurotoxicants and his personal background. However, each of the experts averred that the literature and data available then would have led him to the same conclusion at the time of Caro’s trial.

Following the presentation of the evidence, the District Court ruled that the record “irrefutably establishes that Petitioner suffered brain damage as a result of his exposure to toxic pesticides as well as his personal background.” Caro, Slip Op. at 16 (emphasis added).

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280 F.3d 1247, 2002 Daily Journal DAR 1893, 2002 Cal. Daily Op. Serv. 1549, 2002 U.S. App. LEXIS 2557, 2002 WL 233541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fernando-eros-caro-v-jeanne-woodford-warden-ca9-2002.