Thus, at age nine, John Marek was placed in the custody of the Tarrant County, Texas, Child Welfare Unit, and began his trek through child welfare institutions, foster homes, and psychological evaluations. Incredibly, psychological testing done at that time revealed John was not retarded but of normal intelligence.
Q. If you had written documents to establish the history?
A. Sure. Potential mitigating factors and there's no way it's going to come back to hurt me. Sure, want to put that on.
Q. In this case, do you recall whether the jury had any background information presented to them on Mr. Marek?
A. Just what they got in the guilt phase through his testimony.
Had counsel taken any one of these simple steps, the information detailed above would have flooded in. For example, records from the Texas Adult Probation Department contain a life history of Mr. Marek (App. F, previously filed, specifically and fully incorporated). This life history explains that Mr. Marek was placed in the custody of the Texas Department of Human Resources in October, 1970, and lists the names of the special schools Mr. Marek attended (Id., previously filed, specifically and fully incorporated). With this one document, defense counsel would have had enough specific information to unearth the 99 pages of documents contained in the files of the Texas Department of Human Services (see App. D, previously filed, specifically and fully incorporated).
In order to ascertain whether counsels' failure to present penalty phase mitigating evidence was deficient,
it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end.... [If not], it must be determined that defendant suffered actual prejudice due to the ineffectiveness of his trial counsel before relief will be granted.
Blanco v. Singletary, 943 F.2d 1477, 1500 (11th Cir. 1991), quoting Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir. 1988) (emphasis in original). Decisions limiting investigation "must flow from an informed judgment." Harris v. Dugger, 874 F.2d 756, 763 (11th Cir. 1989). "An attorney has a duty to conduct a reasonable investigation." Middleton, 849 F.2d at 493. See Cunningham v. Zant, 928 F.2d 1006, 1016 (11th Cir. 1991).
Nor is the duty to investigate restricted by counsel's impressions that the defendant did not want counsel to pursue certain matters. "[T]rial counsel was [not] excused from investigating [Mr. Marek's] background because [Mr. Marek] allegedly instructed counsel that he did not want" such an investigation undertaken or such evidence presented. Eutzy v. Dugger, 746 F. Supp. 1492, 1499 (N.D.Fla. 1989). Trial counsel must investigate without regard to a defendant's instructions:
Eutzy, 746 F.Supp at 1499-1500 (emphasis added).
The Supreme Court also made clear that a defendant's burden in postconviction is to prove that the mitigation "may alter the jury's selection of penalty," not to completely rebut the State's evidence in aggravation: "Mitigation evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death eligibility case." Id. at 398.
Similarly, in Mr. Marek's case, trial counsel's unsupported belief and Judge Kaplan's finding that the records describing Mr. Marek's childhood would have provided "negative aspects" was in error and constituted deficient performance. Trial counsel did not make a strategic decision not to present the records which would illustrate a tortured childhood characterized by neglect, abandonment and severe psychological and emotional problems, because as in Williams, counsel failed to obtain the crucial records. Clearly, due to the funding, counsel felt hamstrung and unreasonably failed to collect necessary documentary evidence which should have presented to the judge and jury that sentenced Mr. Marek to death.
Judge Kaplan previously ruled that trial counsel did not investigate, but that the decision not to investigate was reasonable: "I think Moldof indicated why he didn't investigate" (PC-T. 487). The circuit court also indicated trial counsel could have obtained the background and life history information presented by Mr. Marek in the post-conviction process: "he probably could have done some research on his own or asked for an investigator" (PC-T. 488). However, concluding that the history of severe abuse, neglect to the point of abandonment, and evidence of brain damage would make "any reasonable person want to make sure that Mr. Marek never ever walk the streets again" (PC-T. 488), the state court denied relief.
Had counsel performed reasonably, a wealth of compelling mitigation would have come forth in abundance. Literally from birth, Mr. Marek's life was one of abandonment, abuse, and neglect. This pathetic story emerges from voluminous foster care records, from Mr. Marek's natural parents who abandoned and neglected him, from foster parents who failed to provide the stability required by a psychologically and organically damaged child, and from numerous psychological evaluations beginning when Mr. Marek was only nine years old. All of this information is mitigating; none of it was presented to Mr. Marek's sentencing jury.
After John's birth, Margaret's emotional problems continued. "[She] was the type of mother that cared more for herself and her father and grandmother in the states than she did for the rest of the family" (PC-T. 210). She kept taking a plethora of medication, from a shoe box filled with birth control pills, darvon, valium, diet pills, and sleeping pills (PC-T. 107-08). When John was eight or nine months old, his older brother, J. Michael, got into the shoe box and fed pills to himself and John. When Margaret discovered this she did not know what to do:
I was afraid to tell their daddy and I was afraid not to. So finally I decided well I have to, you know. Even if he hurts me. I've got to tell him, you know, it happened.
Bill says that the doctor told us then that John's mind would be affected by it.
(PC-T. 108)(emphasis added).
Jesse vividly recalled the incident:
I immediately, as soon as she said pills, I immediately went in their room and grabbed them.
(PC-T. 211-12)(emphasis added).
John could never sleep. At night he would cry. Walk the floors with him. He cried during the day. As he got older he was suppose to come to the age of where he could do things. He could never do them. He didn't start crawling until he was almost 18 months old. And he was well over two years old before he started to walking. Way over two years old.
Q Did you think he was retarded?
A Yes. I do. I did. I requested help for him through the military services, through the County social services. Through the school board.
Q Was he different than your other children?
A Yes, he was. Very, very different in every way. The normal kids playing in the yards and stuff, as children will do, John was never in the group playing. John was always off to the side doing something else or just watching.
(PC-T. 213-14)(emphasis added).
A John would ask me times why Daddy didn't play with him. Why Daddy didn't do anything with him. Why Daddy pushed him away. Yeah. John was aware of the attitudes. Yeah. A special education child or if you have to call him a retarded child is more tuned in on feelings than we are. They feel rejection even if the words are acceptance. And in a way I had rejected him too. I was so ho[n]ed in on wanting a girl and disappointed.... He wore pink as a baby because I was determined he was going to be a girl. I love John but I was neglectful [sic] of him because of my emotional state at the time.
(PC-T. 85)(emphasis added).
I wanted him to have time for our family but he didn't. I felt he chose the army over us every time. I was furious with him when he went the second time to Vietnam.
A He always went to special education. He never went to regular school. He had a bladder problem. Clear up to - Well, actually when he went into foster care he still occasionally had accidents under stress.
A It wasn't like several times a day but it was frequent. It was almost daily. It was frequent. It was embarrassing to him. He'd say things like me spill water, you know. But he didn't. He didn't fabricate big stories like his brothers would to get out of being in trouble. He generally would say I did it even though he didn't do it. He didn't show much imagination. He showed a lot of love. He was precious when he was little.
A Yes, he was evaluated as trainable but not educable.
Q Was he ever made fun of for being retarded?
A Oh, yes. Yes. A lot.
(PC-T. 87-88)(emphasis added).
I mean if he will take a check for a million he will write (sic) it. He hasn't a penny in the bank. I mean he will take the food money, the rent money, the utility money. He will take your last dime if you will loan it. He's going to drink one way or another.
A Yes, yes and they needed a father. And what they got was belittle meant [sic] and not wanting to be bothered. What they got was a hundred times worse than what their father had been but it took me years to see that.
A John he treated the worse because John was the most forgiving of the four. The other three soon realized you don't try to hug Arlis. You don't try to. You stay away as much as you can from Arlis.
But John always tried again and again and be rejected again and again. He was a very loving child.
Q How would Arlis reject him, just by not hugging him or?
A No, he generally told him to get away, retard.
Q He would call him that?
A Oh, yes. I couldn't get him not to. He would make him go to bed if nothing else. He didn't want to be bothered with any of the children. He didn't want to have to provide for them. And he wanted the use of the support money that [Jesse] give us. But he didn't --
(PC-T. 93-94)(emphasis added).
I had had a job washing dishes there in a restaurant but I'd lost it because Arlis came in drunk there. Lost me the job.
So I called [Jesse] and told him he's going to have to take the boys; that I couldn't handle the situation. Until I could figure out what to do. They were about to put us out of the house because we hasn't paid the rent. That day they had turned the electricity off. It was going into winter. He had no job.
A Fort Worth.
Q Northern Texas?
A Kind of out in the country. I was totally scared to death. I don't know what to do so I called [Jesse]. He said he'd take the three boys but he wouldn't take John.
Q Did he say why he wouldn't take John?
A Because John wasn't his.
Q Did he tell John that or did John know that?
A Arlis told John. John - the welfare people came and got John before [Jesse] came for the boys. [Jesse] came to the house and I gave him their clothes and everything and it was supposed to be a temporary thing. But it became a life changing decision. They never were back in my custody ever again. I visited singularly but never as a family. We were never a family again.
Q How soon after the shooting incidents did child welfare come and get John?
A Next day.
Q Did he know why they were taking him?
A I think I explained to him I couldn't take care of him and that as soon as I could he'd come back. I don't remember for sure what I said.
Q But he knew that he wasn't going with his father?
Q And that the other boys were?
A Yeah. Yeah.
Q And Arlis told him something about that?
Q What did Arlis tell him?
A That his Daddy wouldn't take him. That his Daddy didn't want him because he was retarded.
* * *
Q Ultimately who did you choose to stay with, your kids or with Arlis?
A Arlis and they felt that. They felt I chose Arlis over them. At the time I rationalized it and said the foster care is, you know, they're giving.
(PC-T. 97-100)(emphasis added). Subsequently, Margaret spent time in a sanitarium (PC-T. 102).
The Tarrant County Child Welfare Unit obtained custody of John on October 21, 1970. At that time John was adjudged a "dependent and neglected child." (App. K, p. 3, previously filed, specifically and fully incorporated). After being adjudicated a neglected child, John was placed in foster care with Lena and Virgil Cox. He was enrolled in Saginaw Elementary School on November 16, 1970. School records note that John was "put in foster home due to rejection by new stepfather." His teacher commented, "John is in need of a great deal of love and understanding. Needs to feel success and acceptance." App. K, p. 1. He was placed in a class for the emotionally disturbed. App. K, p. 6. On November 30, 1970, John was withdrawn from his new school when he was moved to a new foster home. App. K, p. 1.
* * *
This youngster had had a previous psychological evaluation which suggested he was of borderline potential intellectually. It is easy to understand how this estimate of John's ability might have been obtained.
John seems to be a sensitive child who is acutely aware of feelings and perhaps expectation of others toward him -- it may be that he responds in his "borderline" manner when he thinks this is how the significant person with him feels about him.
Edged and tiny detail are also characteristic of protocols of children with cerebral dysfunction. There are many elements of this Rorschach which suggest organicity. First of all, John is a "slow starter." He begins with extremely poor perceptions, but as he moves along, he gradually begins to get the idea, and by the last few cards he is doing a rather good job in responding. This sort of approach is often typical of MBI children.
John seems to have a deep sense of inadequacy and poor self concept. The boy has "one leg broken off" and the butterfly has "only bones, no wings". This seems to be an oversensitive and easily hurt youngster who tries to hide his sensitivity. John seems to be anxious and may see himself in a tenuous situation with possible repercussions. Thus the boy is pictured as "sitting on a cannon", and the cloud is "blowing air and getting everything around it all hot and bothered".
* * *
John's story telling involves a little boy who likes to play cards and got involved in sports, such as bowling, football and basketball. He also likes to play with army men, and sometimes at night when his light is supposed to be off, he stays up and plays with his army men in a "little bit of light." He doesn't like it because other kids call him squirt, and he is worried about his daddy who is over in Vietnam. He is unhappy when he has no one to play with. He wants to change from being a boy who is sad all the time to being a boy who is happy all the time. For his three wishes he chooses army men, a bicycle mirror and turn signals for his bike. He wants to grow up to be a policeman.
John has previously been diagnosed as a youngster with cerebral dysfunction, and the Rorschach would certainly seem to confirm this diagnosis. John's protocol actually suggests somewhat better ego strengths then would be predicted on the basis of history, and intelligence not markedly reduced, but rather erratic and disorganized, probably on a basis of organicity. There is no suggestion of psychopathology. Rather this seems to be an immature youngster with rather basic defenses who is probably making some sort of neurotic adjustment to his very real problems. Psychotherapy might be of help, but there are certainly many reality problems confronting this youngster.
App. L, pp. 5-6, previously filed, specifically and fully incorporated.
App. L, p. 7 (emphasis added).
3-27-72: This was a joint interview with Mrs. Marek. John's foster mother, and Mr. Purnell, John's welfare worker. They wanted to know about John's progress and the prognosis. I told them it was my feeling that because of John being traumatized so much that it would be expected that he would continue having problems for years to come. Mr. Purnell mentioned that he had gotten a letter from John's father who is in Europe and that the father indicated in the letter that he is interested in John and hearing about him, but he definitely doesn't feel in the capacity to provide a home for him. Mrs. Marek indicated that she is not planning to adopt John but she is willing to continue having him, but she cannot promise that she will keep him until he is over his childhood and adolescence. She is just going to play it by ear.
App. L, pp. 15-28 (emphasis added).
John's story telling suggests that here is another foster child still fantasizing about and idealizing his natural parents years after he has left the natural home. The boy in the story is afraid of his stepfather who is always hitting him and wishes he were dead. He hates his mother and stepfather, so he goes to the Child Study Center and talks to the psychiatrist who sees that mother and step-father are divorced and mother remarries natural father. Then mother stops "all that marrying and divorcing", and the family lives happily ever after. (A rather large order for the psychiatrist!)
App. L, pp. 10-11 (emphasis added).
In the spring of 1974, Mrs. Marek decided to remove John from her home and sent him to a residential treatment facility. Funding for this move came from Jesse Grimm's Champus Insurance obtained through the military. John arrived at Shady Brook Residential Treatment Center for Children in Richardson, Texas, on June 11, 1974. App. B, previously filed, specifically and fully incorporated. In August 1974, an Academic Progress Report on John's initial adjustment at Shady Brook noted that John "appears to lack assertiveness in some peer interactions which results in his being bullied by the more aggressive group members." App. C, p. 4, previously filed, specifically and fully incorporated.
To review you briefly, John is the son of a retired serviceman. The family abandoned John a number of years ago for all practical purposes. He was in the custody of Tarrant County Welfare before being placed in two different foster homes. John had reacted to neglect and abandonment primarily by an autistic-like withdrawal into himself and by lack of speech development. Mrs. Marek became interested in him and took him into her home in late 1971. She sought help for him on an outpatient basis through the Child Study Center in Fort Worth, and struggled to keep him functioning in their home and in the community. The boy's emotional problems prevented her being able to do that.
We admitted John to Shady Brook June 11, 1974, and immediately placed him in individual therapy with Joseph Kugler, M. D. He has had remedial education, speech therapy, individual psychotherapy and group therapy. John's response has been good. School achievement is still approximately two years behind appropriate grade placement. We have seen him relinquish his introverted amateur adjustment in favor of periods of emotional stability, academic achievement, and outgoing peer relations. Psychological factors are difficult to describe in a concrete way and I will not go further in that direction.
The gist of the matter with John is that he has made improvement but if he is discharged at this time it is unlikely that the Mareks or any other family can sustain him within their group. There is no educational facility in Fort Worth equipped to work with him. He continues to wet the bed almost nightly. He gravitates toward delinquent behavior as he is suggestible, immature and impulsive. It is our judgment that a considerable effort has been made by the Marek family, by the community agencies in Fort Worth, and by us as a residential treatment facility. To stop now will negate what has gone before.
App. C, p. 27 (emphasis added).
The medical director also wrote Dr. Dane Prugh for help preventing the cutback on Champus funding, and acknowledged that there was a tendency at Shady Brook to under diagnoses:
I have wondered whether we have hurt our position by a tendency to "under diagnose". I am sure that you can appreciate our often not wanting to label a seriously disorganized child from a chaotic home situation as psychotic, even though at times under stress he functions at a psychotic level. Even though it hurts our presentation of the case now, I have always felt that such labeling hurts the child even more and particularly those whom we feel have a good prognosis. Does your committee take this viewpoint into account?
App. C, p. 30.
Champus refused to extend funding. Shady Brook's director of admissions wrote Mrs. Marek and described how John was taking the news of the funding cutback:
Dr. Kugler saw John for the last time on Thursday morning, October 2nd. He chose to do this at his own expense as he felt it was something he wanted to do. I had explained the financial situation which would prevail after September 30th and told Dr. Kugler that we would be unable to continue the individual therapy sessions. It was a tearful parting for both of them. I spent some time with John later in the morning trying to simplify as best I could the arbitrary CHAMPUS decision. One of the boys in John's dormitory had already left earlier in September because of a termination of CHAMPUS, so that part was not new to him.
App. C, p. 34. On October 28, 1975, the program director of the Tarrant County Child Welfare Unit wrote Champus making a last ditch appeal for a continuation of the funding for John:
This is a formal request from this agency that the decision to terminate the CHAMPUS cost-sharing benefits to John R. Grimm be reconsidered. John has been in residential care at Shady Brook School in Richardson, Texas since June 11, 1974. As you are aware, John Grimm has been in the custody of the Tarrant County Child Welfare Unit of the Texas State Department of Public Welfare since October 21, 1970.
John was placed in the licensed foster home of Mr. and Mrs. Gabriel Marek on August 21, 1971. Mr. and Mrs. Marek have responded to John's needs and demands with more patience, understanding, love and concern than many children receive from natural parents. The Mareks have certainly done more for John than any foster parent would ever be asked to do.
App. C, pp. 38-39.
App. C, p. 41.
The intellectual picture requires some explanation. A Full Scale Wechsler Bellevue I.Q. of 82 was obtained placing the patient in the Dull Normal range of intelligence. The Verbal I.Q. was 64 and the Performance I.Q. was 104. Subtest scores ranged from a low of 1 on Arithmetic to a high of 12 on Picture Completion and Block Design. This young man at some time in the past was potentially capable of functioning in the Bright Normal range. His longstanding emotional disturbance has significantly lowered his overall intellectual functioning, but his basic cognitive grasp remains average.
A fairly complicated picture with the chief diagnostic impression being ego diffusion/ fragility with moderately severe general emotional disturbance. Emotional integration is poor with inability to form goals, frequent outbursts of impulsivity and, perhaps most important, thinking disorganization. At least borderline or latent thinking disturbance is seen as present. In fact, the common denominator behind much of the patient's fairly self-defeating behavior is seen as a thought disturbance.
App. A, pp. 29-30, previously filed, specifically and fully incorporated.
This young man shows many indications of developing an inadequate personality disturbance. That is, he is increasingly seeing himself as an inadequate person, partially due to his bed wetting, but chiefly due to the lack of any kind of positive male identification. Increasingly, he sees himself as a bummer, a fool, a dummy, etc. This does not constitute a step backward, but more accurately a clarification in diagnoses.
App. A, pp. 17-18.
In December, John quit school. In January, the Mareks washed their hands of John. Texas Welfare officials placed John in a shelter. He wanted Jesse Grimm's phone number which the welfare officials obtained from Margaret Begley. App. D, Summary of Movement from 01/01/79 to 09/28/79. In March of 1979 he was placed with new foster parents, Sallie and Jack Hand (PC-T. 239).
In May, 1979, John was charged with credit card abuse for attempting to charge $55 on a credit card a customer had left at the gas station where he worked. App. F, pp. 6, 9, previously filed, specifically and fully incorporated. John was placed on probation. App. G, p. 3, previously filed, specifically and fully incorporated. In 1980, probation was revoked because John had failed to attend a counseling and vocational program, and John was sentenced to two years in state prison. App. G, p. 4.
Under Florida law, the background information that counsel did not pursue was admissible as evidence of mitigating circumstances. The Florida Supreme Court has recognized that the kinds of information available through investigation of Mr. Marek's background is mitigating. For example, a deprived and abusive childhood is mitigating. Campbell v. State, 571 So. 2d 415, 419 (Fla. 1990)("Abused or deprived childhood" is valid mitigating circumstance); Holsworth v. State, 522 So. 2d 348 (Fla. 1988)("Childhood trauma has been recognized as a mitigating factor").
John Marek's history is consistent from all sources: school and medical records, collateral information, self report, behavioral observations, prior psychiatric and psychological evaluations, and test data. His early years were traumatic psychologically; a natural father who denied his paternity and disassociated himself from his son's problems, a mother who was depressed, immature, and who relinquished her son at eight years because of his problems; an alcoholic step-father who physically and emotionally abused him; a foster father who was not emotionally available and also hit John, a foster mother who focused on his deficits, was not emotionally available, and provided inconsistent control and nurturing and who ultimately abandoned him after refusing him therapeutic help.
John was diagnosed as a child as having an underlying depression. The current evaluation supports the diagnosis of Dysthmia (Depressive Neurosis). According to the DSM-III the essential feature is a chronic disturbance of mood involving depressed mood (irritable mood in children) for at least two years. During these periods of depressed mood there are some of the following associated symptoms that John has demonstrated: poor appetite, hypersomnia, low energy or fatigue, low self-esteem, poor concentration or difficulty making decisions, and feelings of hopelessness. John's present level of depression is heightened by his present circumstances but the history indicates that the depression is long standing.
2. Consistent diagnosis of brain dysfunction beginning at one year. Treatment plans were inconsistent and interrupted.
3. Alcohol use beginning at age eleven and increasing at age seventeen. This excessive alcohol use interacted with the existing brain dysfunction and severe psychological problems to significantly interfere with functioning and judgment.
4. Significant family pathology. Abandoned by natural mother, father, step-father and foster family. Unaccepted at home and school due to his behavior and severe language delay.
5. Consistent lack of opportunity to establish stable relationships. Frequent shifts in foster families and treatment centers, with no consistent plan. Failure to refer to in-patient treatment when the circumstances and recommendations warranted more intense treatment.
Compelling evidence regarding John Marek's brain damage never reached the sentencers because defense counsel failed to obtain the background records indicating that neuropsychological testing was necessary. Had he done so, as Dr. Krieger testified, the testing would have been conducted and as Dr. Fleming's report demonstrates, would have revealed Mr. Marek's organic brain damage.
As Dr. Fleming's report also demonstrates, a thorough psychological evaluation which took into account the documentation regarding Mr. Marek's background and history would also have provided substantial mitigation regarding Mr. Marek's mental and emotional disturbances, his history of alcohol and drug abuse, and his intoxication at the time of the offense. Such evidence, too, is recognized mitigation. See Castro v. State, 547 So. 2d 111, 116 (Fla. 1989)(evidence that defendant was drinking at time of offense and had "alcohol and drug addicted personality" was mitigating).