wr-84,299-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/17/2015 4:47:22 PM Accepted 12/18/2015 2:50:26 PM ABEL ACOSTA IN THE COURT OF CRIMINAL APPEALS CLERK FOR THE STATE OF TEXAS AUSTIN, TEXAS RECEIVED COURT OF CRIMINAL APPEALS 12/18/2015 EX PARTE § ABEL ACOSTA, CLERK § § WR-84,299-01 § RICHARD FREDRICK LOWREY §
No. B-09-1028-SA-W-1
EX PARTE § IN THE 119TH DISTRICT § § COURT § RICHARD FREDRICK LOWREY § TOM GREEN COUNTY, TEXAS
OBJECTIONS TO TRIAL COURT’S FINDING OF CONTROVERTED FACTS AND CONCLUSIONS OF LAW
NOW COMES applicant RICHARD FREDERICK LOWREY and files
these Objections to Trial Court’s “Finding of Controverted Facts and Conclusions
of Law.”
I. THE TRIAL COURT’S ORDER
On November 30, 2015, the habeas court issued its “Finding of Controverted
Facts and Conclusions of Law Under Code of Criminal Procedure Article 11.07”
(hereinafter FFCL). The undersigned counsel did not receive notice of this order
from the habeas court until December 7, 2015. The habeas court forwarded the
case to the Court of Criminal Appeals on December 8, 2015.
-1- II. THE UNDERLYING APPLICATION FOR HABEAS CORPUS RELIEF
The habeas court’s FFCL address Applicant’s First Amended Application
for a Writ of Habeas Corpus pursuant to Article 11.07 of the Code of Criminal
Procedure. Mr. Lowrey’s application is based on claims of ineffective assistance of
counsel, Brady violations, actual innocence, and newly available scientific
evidence. The habeas court recommends denial of the 11.07 application. For the
reasons detailed below, Mr. Lowrey objects to the habeas court’s findings and
recommendations and again asks for habeas relief. For matters not specifically
discussed in these objections, Mr. Lowrey rests upon the analysis in his Brief in
Support of First Amended Application for a Writ of Habeas Corpus and Reply
Brief in Support of First Amended Application for a Writ of Habeas Corpus.
III. THE HABEAS COURT EMPLOYS AN INCORRECT STANDARD OF REVIEW IN MAKING ITS FINDINGS AND RECOMMENDATIONS
At the heart of Mr. Lowrey’s application is the interpretation of two MRIs
taken of the child (Dillon) who Mr. Lowrey was found to have abused. The MRIs
were never obtained at trial. Habeas counsel had to file a motion and have a
hearing before the court finally ordered the State to hand over the MRIs (which
had been available to the State’s experts from the case’s inception). Mr. Lowrey
has experts who say the comparison of the MRIs indicates he is actually innocent;
the State has experts who oppose that interpretation. In its review, the habeas court
sides with the State’s experts. It reaches its conclusions, however, by employing a
-2- preponderance of the evidence standard of review when it instead should have
employed a reasonable probability standard.1 Its conclusions are not supportable
under a reasonable probability standard.
Mr. Lowrey must demonstrate “there is a reasonable probability that . . . the
result of the proceedings would have been different” if the evidence had been
admitted at trial. Strickland, 466 U.S. at 697. “The reasonable-probability
standard is not the same as, and should not be confused with, a requirement that a
defendant prove by a preponderance of the evidence that but for error things would
have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 82 n. 9,
124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); Strickland, 466 U.S. at 694 (“The result
of a proceeding can be rendered unreliable, and hence, the proceeding itself unfair,
even if the errors of counsel cannot be shown by a preponderance of the evidence
to have determined the outcome.”).
Under a preponderance of the evidence standard, the side with the “superior
evidentiary weight” wins. BLACK’S LAW DICTIONARY 547(2d Pocket Ed. 2001).
“[T]he preponderance standard goes to how convincing the evidence in favor of a
fact must be in comparison with the evidence against it before that fact may be
found.” Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137 n. 9, 117 S. Ct. 1953,
138 L. Ed. 2d 327 (1997).
1 Apart from employing the incorrect standard of review, the court’s analysis itself is deeply flawed, as discussed in Section IV.A below.
-3- The habeas court opines that the State’s witnesses were “more reliable” than
Mr. Lowrey’s witnesses. (FFCL 4). As an initial point, Mr. Lowrey was never
allowed to cross-examine a single one of the State’s witnesses in these
proceedings. The State, on the other hand, was allowed extensive cross-
examination of Mr. Lowrey’s main expert (Dr. Joseph Scheller). It is unsurprising
the “more reliable” witnesses are the ones whose conclusions were never
challenged by cross-examination.2 Additionally, in his Reply Brief, Mr. Lowrey
challenged the doctor’s conclusions by pointing out the MRIs in the study relied on
by the State’s witnesses looked nothing like the MRIs in this case. The habeas
court ignores Mr. Lowrey’s concerns about the basis of the experts’ conclusions
and instead blindly accepts them as accurate without first giving Mr. Lowrey the
opportunity to question them.
The court then takes evidence from the State’s experts and weighs it against
evidence from Mr. Lowrey’s experts. (FFCL 3-4). After this review, the court
concludes the State’s evidence is more convincing. See Rambo, 521 U.S. at 137 n.
9, 117 S.Ct. 1953 (explaining a preponderance standard of review is based on
2 Something the habeas court found persuasive is that Mr. Lowrey’s expert spends most of his time testifying on behalf of defendants. (FFCL 4). Because the State’s experts went unchallenged, Mr. Lowrey was never able to present evidence he believes (based on experience from many other trials) would indicate two of the State’s experts likewise spend a majority of their time testifying on behalf of the State. The court’s one-sided comparison undoubtedly contains other flaws; this is an example of one that is immediately apparent. The court also indicates Mr. Lowrey’s expert only evaluated the MRIs. This conclusion is inaccurate, as the evidence established the expert reviewed the entire medical files.
-4- which side’s evidence is more convincing). This is the incorrect standard of review
in habeas. See Dominguez Benitez, 542 U.S. at 82 n.9, 124 S.Ct. 2333 (stating the
proper standard of review in habeas is reasonable probability). Even though the
court says “there is not a reasonable probability that the outcome would be
different” (FFCL 4), it reaches its conclusion following a preponderance analysis,
not a reasonably probability analysis.
Had the court employed a reasonable probability standard, there would have
been some discussion as to whether the evidence from Mr. Lowrey’s expert
“undermines confidence” in the conviction. See Strickland, 466 U.S. at 694, 104
S.Ct. 2052. There is no such discussion at any point in the habeas court’s FFCL.
If the court had applied the proper standard of review, its conclusions would
have been in Mr. Lowrey’s favor. This issue is discussed much more extensively
in Section IV.A, below. The bottom line is that a pediatric neurologist (a form of
expert never called at trial), testified in his professional opinion Mr. Lowrey did
not cause the child’s injuries. This is sufficient to shake one’s confidence in the
determination of guilt, which was based upon the opinion of doctors not qualified
to interpret the necessary medical records. The habeas court wholly fails to discuss
whether the new evidence not presented at trial undermined confidence in the
verdict. The court applied the incorrect standard of review.
-5- IV. THE HABEAS COURT’S OTHER DETERMINATIONS ARE INSUPPORTABLE
A. The Habeas Court Improperly Analyzes the Medical Evidence
As discussed above, a very important part of Mr. Lowrey’s case deals with
the analysis of two MRIs taken from the child, Dillon, during his medical
treatment. Habeas proceedings are not the time to get into a detailed battle of the
experts. A jury, not a habeas court, is the proper entity to resolve which set of
experts is more believable. Nevertheless, the habeas court in its FFCL undertakes a
detailed weighing of the medical evidence. Not only are the instant proceedings an
improper venue for this discussion to occur, but the court’s analysis itself is
incorrect.
This case involved complicated medical evidence. With his undergraduate
and law degrees, Mr. Lowrey’s trial attorney, John Sutton, was unqualified in
every sense of the word to make any medical conclusions as to the cause of
Dillon’s injuries. He did not even understand the terminology involved. (Sutton
Testimony, at 7) (“Q. And you’re not educated to understand all medical
terminology, you know, much like people don’t understand lawyer words? A. I
would agree.”).
From his opening statement to final argument, Sutton acknowledged the
State’s case centered on expert testimony dealing with the cause of Dillon’s brain
injury. It follows, then, that Sutton needed to either consult with or introduce
-6- expert testimony. Harrington v. Richter, 562 U.S. 86, 106, 131 S. Ct. 770, 788, 178
L. Ed. 2d 624 (2011) (“Criminal cases will arise where the only reasonable and
available defense strategy requires consultation with experts or introduction of
expert evidence, whether pretrial, at trial, or both”). Instead of challenging the
State’s experts, Sutton accepted as true that asphyxiation was the only cause of
Dillon’s injuries. (3 RR 48); (2 RR 17) (“I think it’s going to be uncontroverted
that that is probably the result of what I will refer to as asphyxiation, meaning a
lack of oxygen being supplied to the brain.”). Given the central nature of the
specialized expert testimony, Sutton’s failure to consult or call an expert witness in
this field was objectively unreasonable. Hinton v. Alabama, 134 S. Ct. 1081, 1090,
188 L. Ed. 2d 1 (2014) (explaining how the threat of wrongful convictions “is
minimized when the defense retains a competent expert to counter the testimony of
the prosecution's expert witnesses.”).
The threat of wrongful convictions discussed in Hinton is especially chilling
when put into the perspective of Mr. Lowrey’s case. Neither of the experts who
testified on the State’s behalf at trial were qualified to testify about the causation of
Dillon’s brain injury. Consequently, the only experts to ever discuss the evidence
at trial were not qualified to do so.
-7- Expert testimony is admissible if the proponent satisfies a three-prong test:
1. The witness is qualified to give the opinion 2. The opinion is reliable 3. The opinion is relevant.
Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). Here, neither of the
State’s experts, who were simple pediatricians, was qualified to discuss the
causation of Dillon’s brain injuries.
Evidence obtained during the habeas proceedings establishes only a
neuroscientist has the proper education, training, and experience to accurately
interpret Dillon’s medical records. The central issue here was whether Dillon’s
brain injury was caused by asphyxiation, which must be done by reading and
interpreting the MRI scans of Dillon’s brain. (Scheller, at 30) (describing MRI as
the “definitive tool” for determining brain injury).
A medical doctor is not automatically qualified to give a medical opinion by
virtue of having a medical degree. “If a medical degree carried automatic expert
qualification in all medical matters, a trial judge could no longer fulfill his
gatekeeping duty and ‘ensur[e] that those who purport to be experts truly have
expertise concerning the actual subject about which they are offering an opinion.’”
Vela v. State, 209 S.W.3d 128, 132 (Tex. Crim. App. 2006) (quoting Broders v.
Heise, 924 S.W.2d 148, 152 (Tex. 1996)). The Broders Court observed why not all
doctors are competent experts in every medical field: “[G]iven the increasingly
-8- specialized and technical nature of medicine, there is no validity, if there ever was,
to the notion that every licensed medical doctor should be automatically qualified
to testify as an expert on every medical question. Such a rule would ignore the
modern realities of medical specialization.” Broders, 924 S.W.2d at 152.
Accordingly, “[w]hat is required is that the offering party establish that the expert
has ‘knowledge, skill, experience, training, or education’ regarding the specific
issue before the court which would qualify the expert to give an opinion on that
particular subject.” Id. at 153.
Neither of the State’s pediatrician experts have received any formal
education, training, or experience in any neuroscience—the particular, specific
subject at issue. (2 RR 59, 92). Even when Drs. Coffman and Lukefahr provided
post-habeas hearing affidavits, neither described having any neuroscientific
background, instead describing their extensive training in pediatrics and child
abuse, exactly like they did at trial. Dr. Lukefahr admitted he had to review “recent
medical literature,” on the topic to prepare his affidavit. (Lukefahr Aff., 2).
A pediatrician does not have specialized knowledge like a neurologist or a
neurosurgeon—knowledge obtained by spending “four years sitting in a dark room
looking at . . . radiologically generated pictures of all portions of the body.” (4 RR
29). Recognizing they lacked the required specializations, both of the physician
fact witnesses called at Applicant’s trial—Drs. Patyrak and Wagnon—suggested
-9- the proper specialist for diagnosing Dillon would be a pediatric neurologist. (2 RR
165); (4 RR 13). And as Dr. Scheller explained, the pediatricians who testified at
Applicant’s trial would “for sure” not have the neuroscientific qualifications
necessary to read and interpret an MRI, (Scheller, 28-29) (“When you’re talking
about the brain, in general, it’s not going to be a pediatrician or even an emergency
room doctor. It’s going to be a neurologist or a neurosurgeon.”). Without any
neuroscientific background, training, or experience, neither of the State’s expert
child abuse witnesses were legally “fit” to opine on the cause of Dillon’s brain
injuries.3 Vela, 209 S.W.3d at 133.
By contrast, the doctors Mr. Lowrey has provided in the instant proceedings
are highly qualified neuroscientists. Dr. Scheller is a double board certified
pediatrician and pediatric neurologist with a subspecialty certification in brain and
spine imaging. (Scheller, 8-10). In his twenty-five years of experience as a
pediatric neurologist, he has treated thousands of patients. (Scheller, 8-10). He has
testified in courts all over the country, including in Midland, Galveston, and
Wichita Falls, Texas. (Scheller, 11-12). And he has helped train other pediatric
3 Interestingly, even non-physicians can be qualified to testify about the causes of neurological defects, but only if they possess knowledge, skill, or training in that specific subject. Ponder v. Texarkana Mem'l Hosp., Inc., 840 S.W.2d 476, 477 (Tex. App.—Houston [14th Dist.] 1991), writ denied (Apr. 22, 1992)(finding abuse of discretion in prohibiting professor with doctorate in neuroscience who taught “basic courses in neuroscience, neurology, and sensory neurophysiology to medical students[, and] advanced courses in neurophysiology, neuroanatomy, and neurochemistry to M.D.'s and Ph.D.’s,” from testifying about causation of brain injury). .
- 10 - neurologists at Children’s Hospital in Washington D.C., a well-known training
program for pediatric neurologists. (Scheller, 12). The habeas court even
commented that he was a “qualified, highly trained pediatric neurologist.” (FFCL,
at 4)
Dr. Scheller’s opinion is reliable and relevant. Drawing on his extensive
training and experience, Dr. Scheller walked the habeas court through his work in
Dillon’s case. He showed the initial MRI from May 23, 2009, and concluded that
there was no brain injury shown. (Scheller, 28). He showed the habeas court
visuals of Dillon’s second MRI from May 26, 2009, noting the symmetrical
discoloration around the periphery of Dillon’s brain. (Scheller, 36). After showing
his work, including why this could not be a suffocation injury, (Scheller, 36), Dr.
Scheller concluded sometime between May 23-26, 2009, Dillon suffered a loss of
blood flow to his brain, which is most commonly caused by seizures or infection.
(Scheller, 36). In other words, Dillon suffered the massive brain injury while in the
care of Cook Children’s Hospital. (See 2 RR 72).
The habeas court’s findings do not make Dr. Scheller’s opinion any less
relevant, reliable, or admissible. The habeas court specifically found Dr. Scheller’s
opinions were based upon “his training and experience.” This finding necessarily
means Dr. Scheller drew upon what he learned during medical school, while
obtaining his specialty certifications, and what he observed in his twenty-five year
- 11 - medical career doing what neurologists do: reading and interpreting the MRIs of
thousands of patients. At that point, Dr. Scheller satisfied the preliminary
requirements to testify as an expert. Davis v. State, 313 S.W.3d 317, 350 (Tex.
Crim. App. 2010) (noting “expertise can be acquired in numerous ways, including
by training or experience”). Therefore, the habeas court’s conclusion that “there is
a question if [Dr. Scheller] would be permitted to testify as an expert” at trial is
erroneous. (FFCL, 4).4
The habeas court went on, however, to claim Dr. Scheller’s opinion was
unreliable precisely because it was based on his training and experience. But every
reason given for the habeas court’s conclusion goes to the weight of Dr. Scheller’s
testimony, not its admissibility. For example, a repeated theme throughout the
FFCL is that Dr. Scheller did not cite studies while the State’s experts did. This
finding ignores that Dr. Scheller was never asked, by either party, to cite any
studies in support of his opinions. Rather, Dr. Scheller cited real-life instances
where children, who had never had a seizure disorder before, presented at the
emergency room with seizures that were “out of control.” (Scheller, 38).
As another example, the habeas court faulted Dr. Scheller for overlooking
other evidence of trauma, including bruising. (Findings, 3). This finding ignores 4 The habeas court reached its conclusion without performing the necessary reliability analysis. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Had the court performed the proper analysis, it would be forced to conclude that all but one of the seven Kelly reliability factors weigh in favor of reliability. See id.
- 12 - the very first doctor who treated Dillon when he presented at the emergency room
performed a full examination of Dillon and did not see any significant signs of
abuse or any bruising. (2 RR 168).
As another example, the trial court disbelieved Dr. Scheller’s testimony
because he “attributed the unexplained, prior incidents to seizure because ‘children
have seizures.’” (Findings, 3). But, in fact, what Dr. Scheller said was: “Seizures
are uncommon. Only two or three percent of children have seizures. And so, we’re
talking about something uncommon to begin with.” (Scheller, 56).
As a final example, the trial court discounted Dr. Scheller’s opinion because
it relied on “a history of seizures reported only by Mr. Lowrey.” (FFCL, 4). The
habeas court’s determination forgets that experts are permitted to rely on such
information provided by witnesses. But the finding also ignores a much larger
coincidence. At the habeas hearing, Dr. Scheller explained how child seizures
manifest themselves in a similar way to how Rick described one of the “prior
incidents” at trial. Compare (Scheller, 31) (“Those seizures might simply make a
child look lethargic, might simply make a child look unresponsive, weak, out of it.
A seizure in a child doesn’t necessarily look like a seizure that we’re familiar with
adults when they bite their tongue, they’re shaking all over and they turn purple.
Seizures in children can be much more subtle.”), with (3 RR 24) (“and I could hear
Dillon crying, so I went into his room. And it didn’t seem like it was a normal cry.
- 13 - He just was a little out of it.”) (emphasis added). It is unfathomable that
Applicant could foresee himself getting convicted, and later at his habeas hearing,
a doctor whom he had never met before from Baltimore, would testify that children
have subtle seizures and appear “out of it.”
Going further, Dr. Scheller’s description loosely comports with Deborah’s
description of Dillon’s “prior incidents.” (2 RR 141) (describing Dillon as
“disoriented”).5 “Even if some facts were not taken into account by the expert is a
matter of weight and credibility, not admissibility.” Jordan v. State, 928 S.W.2d
550, 556 (Tex. Crim. App. 1996).6
5 The State repeatedly tries to suggest that because Mr. Lowrey was present when Dillon’s prior incidents occurred, he must be responsible. This particular incident completely undermines that determination because Dillon’s mother explains that Rick was in bed when she went to take a shower, and Rick was still in their bedroom, not Dillon’s, when she got out of the shower to check on Dillon. (2 RR 141). In other words, the hobbyhorse incident could not have been an intentional attempt by Rick to injure Dillon. 6 The habeas court also suggested Dr. Scheller’s opinion was inadmissible because he did not agree with blanket diagnoses of shaken baby syndrome accepted by the American Academy of Pediatrics. (Findings, 4). This is not a shaken baby case and, therefore, irrelevant. But Applicant would point the Court to the significant, current legal and scientific discourse on the topic. Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 WASH. U. L. REV. 1 (2009), available at http://openscholarship.wustl.edu/law_lawreview/vol87/iss1/1; David A. Moran, Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting it Right, HOUS. J. HEALTH L. & POL'Y 12, no. 2 (2012): 209-312, available at http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1559&context=articles. Dr. Scheller was simply doing what scientists do: having a scholarly disagreement. If at all relevant, this goes to the weight of Dr. Scheller’s opinion, not the admissibility. See Jordan, supra. And, as discussed in Section III, the weight of the evidence (which comes into play with a preponderance of the evidence standard of review) is of little relevance in habeas (where the standard of review is reasonable probability to undermine confidence in the outcome).
- 14 - Likewise, the habeas court apparently credited Dr. Rotenberg’s
qualifications and opinion.7 Indeed, the habeas court used Dr. Rotenberg’s affidavit
in an attempt to further discredit Dr. Scheller. (FFCL, 4). The habeas court again
confuses the issues, overlooking that Dr. Rotenberg’s affidavit, on its own, was
enough to show prejudice from Sutton’s failure to consult or call a neuroscientist
on behalf of Mr. Lowrey.
Like Dr. Scheller, Dr. Rotenberg was highly qualified. He is a double board
certified pediatrician and pediatric neurologist. (Rotenberg Aff., 1). He has
subspecialty certifications in epilepsy and sleep medicine. (Rotenberg Aff., 1). He
served as the chief of a pediatric hospital for two years. He also served as an
assistant clinical professor at three different universities. Importantly, a “significant
component of his training” involved interpreting brain imaging including CT and
MRI scans. He has viewed “thousands” of these images. He has also treated many
children who have suffered hypoxic ischemic encephalopathy.
After reviewing Dillon’s medical records and MRIs, Dr. Rotenberg
concluded he was “uncertain” Dillon’s injury was intentionally inflicted. Further,
Dr. Rotenberg could not rule out other accidental causes, concluding he was
“hesitant” to attribute Dillon’s injuries to being intentionally inflicted.
7 To the extent the trial court did not explicitly comment on Dr. Rotenberg’s credibility, Applicant objects.
- 15 - As in Ex parte Briggs, and Ex parte Henderson, an expert’s testimony that
the cause of a child’s injuries are “undetermined,” raises at least a probability
sufficient to undermine the outcome that the child’s injury was the result of a
criminal act. Ex parte Briggs, 187 S.W.3d 458, 460, 470 (Tex. Crim. App. 2005)
(finding ineffective assistance based on undetermined cause of child’s injuries); Ex
parte Henderson, 384 S.W.3d 833, 844 (Tex. Crim. App. 2012) (Cochran, J.,
concurring) (finding actual innocence based on undetermined cause of injuries).
This case is no different.
As acknowledged in Henderson, experts disagree. At bottom, they are
scientists. If scientists all agreed, the prevailing school of thought may still be that
the earth is flat. As scientists do, Dr. Scheller and Dr. Rotenberg disagreed with the
State’s pediatrician experts. The question, though, is not whether the habeas court
believes the experts. It’s whether based on two highly qualified experts’ opinions
that the cause of Dillon’s brain injury was either natural or unknown, confidence in
the verdict has been undermined. Given that the verdict was based on unobjected
to, unqualified “expert” testimony to the contrary, Applicant’s conviction cannot
stand.
B. The Habeas Court’s Conclusions Regarding Counsel’s Deficient Performance are Insupportable
Apart from improperly evaluating the medical evidence and the experts’
opinions, the habeas court also improperly evaluates the performance of Sutton
- 16 - himself. Mr. Lowrey’s first ground of error is that his Sutton’s failure to
investigate was deficient, and the resulting harm caused by that failure violated his
Sixth Amendment rights. See Strickland v. Washington, 466 U.S. 668, 689, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). The facts uncovered in the habeas proceedings
were uncontroverted: (i) apart from a brief phone call with one of the State’s
experts, Sutton failed to consult with an expert in an attempt to develop the
defense; and (ii) counsel failed to seek out a single witness in mitigation of
punishment, even though many such witnesses were ready, willing, and able to
testify
An attorney’s performance is deficient when it falls “below an objective
standard of reasonableness” under prevailing professional norms and according to
the necessity of the case. Ex parte Moore, 395 S.W.3d 152, 156–57 (Tex. Crim.
App. 2013). The reviewing court refers to standards published by the American
Bar Association and other similar sources as guides to determine prevailing
professional norms. Id. (citing Strickland, 466 U.S. at 688–89, 104 S.Ct. 2052;
citing ABA Standards for Criminal Justice (2d ed.1980)).
Both the ABA Standards and the Texas Guidelines for Criminal Defense
mandate an attorney has the duty to “explore all avenues leading to facts relevant
to the merits of the case.” ABA Standards for Criminal Justice: Prosecution and
Defense Function 4.1(a) (3d 1993)); Standing Committee on Legal Services to the
- 17 - Poor in Criminal Matters, Performance Guidelines for Non-Capital Criminal
Defense Representation, 74 TEX. BAR. J. 624 (July 2011). Caselaw likewise
establishes trial attorneys must fully investigate the case, and limitations on
counsel’s investigation are appropriate only if they are reasonable. Wiggins v.
Smith, 539 U.S. 510, 521, 123 S.Ct. 2535, 156 L.Ed.2d 471 (2003); Ex parte
Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005).
1. Trial Counsel Was Deficient in Failing to Consult with an Expert
Trial counsel failed to consult with an expert in understanding complicated
medical issues. His failings were unreasonable. The habeas court acknowledges
Mr. Lowrey’s claims are centered on the interpretation of the two MRIs. The court
also implicitly acknowledges that even pediatric neurologists with decades of
training and experience cannot agree on what the MRIs show.
And yet, the habeas court is satisfied with trial counsel’s absolute reliance on
his own research in developing a defense—research done without the benefit of the
necessary medical records. Despite the differences in their ultimate conclusions,
every expert in this case indicated he could not form any opinion without first
viewing Dillon’s entire medical records, including the two MRIs. In his
understandable ignorance, counsel never asked for either. Yet his internet research
done without the medical records, according to the habeas court, was sufficient.
- 18 - The court equates trial counsel’s internet search (done without the necessary
records) with experts’ medical degrees and years of training and experience. This
reasoning is insupportable. Lawyers are not neurologists; they are not
neurosurgeons. Trial counsel’s “research” was useless. The instant proceedings
(where experts were finally consulted) prove there is a debatable issue that trial
counsel would have discovered had he consulted a medical expert. That debate
should have occurred at trial before Mr. Lowrey was sent to prison for the next
thirty-five years.8 Counsel’s failure to consult with an expert in an area only an
expert can interpret falls below the norms of the profession. See ABA Standards
for Criminal Justice 4.1(a); Performance Guidelines for Non-Capital Criminal
Defense Representation, 74 TEX. BAR. J. 624.
2. Trial Counsel Was Deficient in Failing to Consult a Single Person in Mitigation of Punishment
It is undisputed that counsel never contacted a single witness for mitigation
of punishment. Trial counsel must “conduct a prompt investigation of the
circumstances of the case and to explore all avenues likely to lead to facts relevant
to the merits of the case.” Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App.
2005) (internal citation omitted). This is an “absolute duty.” Id. The habeas court
never issues any findings regarding the deficiency of counsel’s failure to call any
8 It also should have been discussed with Mr. Lowrey before he was advised to waive a jury and try the case before the trial court.
- 19 - witnesses in mitigation of punishment. (FFCL 6). Undoubtedly, counsel’s
wholesale failure to call a single witness was unreasonable. See Lair v. State, 265
S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (stating an
attorney is deficient if he fails to conduct a thorough investigation); Milburn v.
State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th Dist.] 2000) (finding an
attorney who did not question any possible mitigation witnesses was deficient
under Strickland because “counsel can only make a reasonable decision to forego
presentation of mitigating evidence after evaluating available testimony and
determining that it would not be helpful”).
B. Trial Counsel’s Deficient Performance Prejudiced Mr. Lowrey
Because the trial attorney failed to conduct any investigations, he was never
able to present the Court with evidence key to Mr. Lowrey’s defense and to the
punishment determination. As discussed in Section III and Section IV.A, above,
there is a reasonable probability that, had counsel presented an expert witness, the
outcome would have been different. There is also a reasonable probability that,
had counsel presented a single witness in mitigation of punishment, the sentence
would have been lower.
The habeas court concludes the presentation of mitigation witnesses would
not have changed the outcome in the case. This conclusion disregards the
- 20 - importance of mitigation witnesses, a vital role widely recognized in caselaw. For
example, in Millburn,
appellant’s trial counsel performed no investigation into any possible mitigating factors and failed to contact even a single family member or friend, despite the availability of such mitigation evidence . . . These witnesses would have testified that, inter alia, appellant was a good father to a child of special needs and that he was an outstanding employee. This evidence would have provided some counterweight to evidence of bad character which was in fact received by the jury.
Id. at 270-71. A similar situation occurred in Shanklin v. State, 190 S.W.3d 154
(Tex. App.—Houston [1st Dist.] 2005, pet. dsms’d). In that case, the only
mitigation evidence the defense put on was the defendant himself. Id. at 165.
Counsel admitted he did not investigate any mitigating factors and did not contact
a single family member or friend, despite knowing such witnesses were available.
Id. “These witnesses would have testified that appellant took great care of his son,
helped his friends and relatives, and worked hard.” Id. The court noted, “[t]his
evidence would have shown the jury that [the defendant] also had good character
traits.” Id.
Even though the court in Shanklin could not “say for certain” that the
witnesses would have influenced the jury’s punishment, it could not escape the fact
that the jury “would have considered it and possibly have been influenced by it.”
Id. at 166. In this case, there were multiple witnesses who would have testified to
Mr. Lowrey’s many outstanding character traits, some of which were relevant in
- 21 - both the guilt-innocence and punishment phases of trial. It is unreasonable to
conclude such testimony from so many witnesses would have had no possible
influence on the sentence.9
V. PRAYER
FOR THE REASONS ABOVE, and for the reasons in all of the pleadings filed by
Applicant in the trial court, Applicant Richard Frederick Lowrey respectfully
requests the Court reject the habeas court’s Findings of Fact and Conclusions of
Law and grant Mr. Lowrey the new trial he deserves.
9 In its prejudice analysis of Mr. Lowrey’s claim of ineffective assistance of counsel for failure to call mitigation witnesses, the court concludes “[the] witness testimony, if presented at trial, would not have changed the outcome.” (FFCL 6). This again, is not the proper standard of review for the court to employ. The question is not whether the outcome would have changed. The question is much closer to whether the outcome may have been impacted by the evidence, i.e. whether one’s confidence in the outcome is undermined. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
- 22 - Respectfully submitted,
Hurley, Guinn & Sellers
By: /s/ Frank Sellers Frank Sellers State Bar No. 24080305 Frank@hurleyguinn.com Daniel W. Hurley State Bar No. 10310200 dwh@hurleyguinn.com
1805 13th Street Lubbock, Texas 79401 P: (806) 771-0700 F: (806) 763-8199
Law office of Allison Clayton
By: /s/ Allison Clayton Allison Clayton State Bar No. 24059587 Allison@AllisonClaytonLaw.com
P.O. Box 64752 Lubbock, Texas 79464-4752 P: (806) 773-6889 F: (806) 688-4515
- 23 - Certificate of Service
I certify that on December 17, 2015, a copy of the foregoing was served
upon the Tom Green County District Attorney by email to
Allison.Palmer@co.tom-green.tx.us.
/s/ Frank Sellers Frank Sellers
- 24 -