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In re Gay12/24/1998
. He had examined defendants for or been a consultant for the prosecution in several cases, and in five of the approximately twenty-five cases in which he had done so for the defense he had advised defense counsel that he made no findings that would be of value.
The type of mental health evaluation performed by Dr. Foster was not uncommon in capital case defense at the time of this trial. (See People v. Ledesma, supra, 43 Cal.3d at pp. 200-201; People v. Brown (1985) 40 Cal.3d 512, 537.) A minimal inquiry and review of documents readily available to Shinn should have alerted him that such an evaluation might produce potentially mitigating evidence. He not only failed to investigate this possibility, but also engaged an expert who was not willing to undertake an extensive analysis and placed unreasonable limits on the scope of his expert's investigation and examination that precluded discovery of this evidence. Shinn's conduct in this regard clearly falls below the level of performance expected of even minimally competent attorneys representing a defendant in a capital case. He failed to undertake any inquiry into the possible existence of mitigating mental health evidence until petitioner had been found guilty of the murder. When he did retain Dr. Weaver he conveyed to Dr. Weaver his opinion that the death penalty was a foregone Conclusion, failed to supply Dr. Weaver with any background information or documentation, and agreed that Dr. Weaver need not devote much time to his examination. He asked Dr. Weaver only to determine if petitioner suffered from any mental illness at the time of the crime.
In addition to his failure to discover and develop available potentially mitigating mental health evidence, Shinn also failed to investigate, discover, and present evidence regarding petitioner's early childhood and family relationships which was both relevant to the mental health diagnosis and potentially mitigating in and of itself. These omissions also manifest incompetence.
" defendant can reasonably expect that in the course of representation his counsel will undertake only those actions that a reasonably competent attorney would undertake. But he can also reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. [Citations.] If counsel fails to make such a decision, his action-no matter how unobjectionable in the abstract-is professionally deficient." (People v. Ledesma, supra, 43 Cal.3d at p. 215.) Shinn's decision to rely only on his client for sources of mitigating evidence and Conclusion that the case did not warrant a reasonable investigation into petitioner's background and mental health was not an informed decision.
Shinn's failure to investigate petitioner's social history and other potentially mitigating evidence and make an informed decision regarding this aspect of his penalty phase strategy and tactics is addressed next.
G. Did trial counsel Daye Shinn undertake any investigation of petitioner's family and social history; medical and psychiatric or psychological history; or any other potentially mitigating background factors, and, if so, what information did he obtain which did or should have alerted him to the existence of potentially mitigating penalty phase evidence?
Findings: "Attorney Shinn personally conducted no investigation of Petitioner's background. He did not subpoena or otherwise obtain any school, medical, psychiatric or work records.[ ] His investigator did, however, obtain some prison records from Petitioner's mother, try to verify employment history and speak to Petitioner directly regardi
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