Final submission: June 10, 2015
Upon Defendant's Motion for Postconviction Relief GRANTED in part; DENIED in part.
Thomas C. Grimm, Esquire, Rodger D. Smith II, Esquire, Ethan H. Townsend, Esquire, Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware, Attorneys for Defendant.
Elizabeth R. McFarlan, Esquire, and Maria T. Knoll, Esquire, Department of Justice, Wilmington, Delaware, Attorneys for the State of Delaware.
I. INTRODUCTION AND PROCEDURAL HISTORY
The bodies of Brandon Saunders and Vaughn Rowe were discovered in a wooded area of Rockford Park in Wilmington, Delaware on January 21, 1996 ("Rockford Park Murders"). Nearly four years later, on December 6, 1999, Luis Cabrera ("Cabrera") and Luis Reyes ("Reyes") were indicted as co-defendants for the Rockford Park Murders. The State sought the death penalty for both Cabrera and Reyes. Counsel was appointed for both defendants. The trials of Cabrera and Reyes were severed by the Trial Court.
A. Rockford Park Trial and Direct Appeal
Cabrera was tried first ("Rockford Park Trial"), with jury selection starting on January 9, 2001. Jury deliberations began on February 8, 2001, and the jury returned a verdict on February 11, 2001, finding Cabrera guilty of two counts of First Degree Murder, two counts of Conspiracy in the First Degree, and other offenses.
The penalty phase began on February 13, 2001 and ended on February 15, 2001. The jury recommended that Cabrera receive the death sentence for each of the Rockford Park Murders by a vote of 11–1. The Court postponed Cabrera's sentencing until the completion of Reyes' trial for the Rockford Park Murders. Reyes was convicted on October 19, 2001, and, on October 26, 2001, the jury recommended that Reyes receive the death sentence for each of the Rockford Park Murders by a vote of 9–3. By decision and Order dated March 14, 2002, the Trial Court sentenced both Cabrera and Reyes to death.
An automatic, direct appeal was filed with the Delaware Supreme Court.While the direct appeal was pending, on July 9, 2002, Cabrera filed a motion for a new trial based on claims of discovery of new evidence. The direct appeal was stayed pending the Trial Court's consideration of the motion for a new trial. On December 19, 2002, the Trial Court held a hearing regarding the admissibility of newly discovered evidence in support of Cabrera's motion for a new trial. On April 3, 2003, the Trial Court ruled that the newly discovered evidence was inadmissible. Consequently, the Trial Court denied Cabrera's motion for a new trial. The Supreme Court lifted the stay on Cabrera's direct appeal and, on January 27, 2004, affirmed Cabrera's convictions and death sentences. On February 24, 2004, the Trial Court set Cabrera's execution date for June 4, 2004.
B. Appointment of Rule 61 Counsel and Postconviction Motions
By letter dated March 8, 2004, Cabrera notified the Trial Court that Cabrera intended to pursue postconviction relief and requested appointment of counsel. The Trial Court appointed counsel to represent Cabrera in the postconviction proceedings ("Rule 61 Counsel"). On April 20, 2004, Cabrera's Rule 61 Counsel filed a motion to stay execution. The Trial Court granted the motion to stay execution on April 27, 2004. Cabrera's Rule 61 motion filed in November 2004- amended in 2007, in 2012, and as briefed in 2014–2015-is now pending before this Court for decision.
II. CONSIDERATION OF PROCEDURAL BARS
Superior Court Criminal Rule 61 governs Cabrera's motion for postconviction relief. Postconviction relief is a "collateral remedy which provides an avenue for upsetting judgments that otherwise have become final."To ensure the finality of criminal convictions, the Court must consider the procedural requirements for relief set out under Rule 61(i) before addressing the merits of the motion.
Rule 61(i)(1) bars a motion for postconviction relief if it is filed more than three years from the final judgment; this bar is not applicable as Cabrera's first postconviction motion was filed in a timely manner. Rule 61(i)(2) bars successive postconviction motions; this bar is not applicable as Cabrera has not filed successive postconviction motions. Rule 61(i)(3) bars relief if the motion includes claims not asserted in prior proceedings leading to the final judgment; this bar will be addressed in the discussion of the claims to which it applies. Rule 61(i)(4) bars relief if the motion includes grounds for relief formerly adjudicated in any proceeding leading to the judgment of conviction, in an appeal, or in a postconviction proceeding; this bar will be addressed in the discussion of the claims to which it applies.
The procedural bars to postconviction relief under Rule 61(i)(3) can be overcome if the motion asserts a colorable claim that there has been a "miscarriage of justice" as the result of a constitutional violation that undermined the fundamental fairness of the proceedings. Likewise, the procedural bar under Rule 61(i)(4) can be overcome if consideration of the claim on its merits is warranted in the "interest of justice." If the postconviction motion is procedurally barred and neither exception applies, the Court should dispose of the motion because postconviction relief is not "a substitute for direct appeal."
Cabrera's postconviction motion asserts multiple claims of constitutional violations, including claims of ineffective assistance of counsel. The Delaware Supreme Court has declined to hear claims of ineffective assistance of counsel on direct appeal and, therefore, the first opportunity for Cabrera to assert such claims is in an application for postconviction relief.
III. THE STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL
Cabrera claims that Cabrera Trial Counsel provided ineffective legal assistance in violation of Cabrera's rights under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Article 1, § 7 of the Delaware Constitution. The standard used to evaluate claims of ineffective counsel is the two-prong test articulated by the United States Supreme Court in Strickland v. Washington,  as adopted in Delaware. The movant must show that (1) trial counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for trial counsel's unprofessional errors, the result of the proceeding would have been different. Failure to prove either prong will render the claim insufficient. Moreover, the Court shall dismiss entirely conclusory allegations of ineffective counsel. The movant must provide concrete allegations of prejudice, including specifying the nature of the prejudice and the adverse affects actually suffered.
With respect to the first prong-the performance prong-the movant must overcome the strong presumption that counsel's conduct was professionally reasonable. The Court's scrutiny of counsel's performance must be highly deferential and "every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at that time." To satisfy the performance prong, Cabrera must assert specific allegations to establish Cabrera Trial Counsel acted unreasonably as viewed against "prevailing professional norms."
With respect to the second prong-the prejudice prong-the question for the Court is whether there is a reasonable probability that, absent the errors, the Trial Court "would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." In considering the prejudice prong, this Court must "consider all the relevant evidence that the [Trial Court] would have had before [him] if [counsel] had pursued a different path." To satisfy the prejudice prong, Cabrera must establish the existence of a substantial likelihood, not a mere conceivable likelihood, of a different result of the proceedings absent Cabrera Trial Counsel's errors.
IV. CABRERA TRIAL COUNSEL WAS INEFFECTIVE WITH RESPECT TO MITIGATION
This Court will consider the merits of procedurally sufficient constitutional claims as well as any colorable claim of ineffective assistance of counsel. Cabrera's claim of ineffective assistance of counsel with respect to the presentation made during the penalty phase regarding mitigation will be addressed on the merits.
A. Cabrera Claims that Mitigation Investigation was Inadequate
Specifically, with respect to mitigation, Cabrera contends Cabrera Trial Counsel was ineffective for focusing on the guilt phase, rather than the penalty phase; by improperly relying on the mitigation investigation conducted previously for the Otero Trial; and for ignoring "red flags" uncovered in connection with the Otero Trial and the Rockford Park Trial. The State's argument does not focus on the sufficiency of Cabrera Trial Counsel's mitigation investigation. Instead, the State disagrees that a more extensive mitigation investigation would have revealed a history of childhood abuse and neglect. The State classifies Cabrera's upbringing as "common-place" and argues that childhood issues such as sibling rivalry and the lifestyle of Cabrera's father are "everyday occurrences in one's childhood" rather than "'red flags' of abuse missed by [Cabrera Trial Counsel]."
Cabrera argues that Cabrera Trial Counsel was ineffective with respect to its mitigation investigation and its preparation of a defense for the penalty phase of the Rockford Park Trial. According to Cabrera, Cabrera Trial Counsel failed to locate and interview at least a dozen witnesses who could have provided background information on Cabrera to develop a mitigation strategy. Cabrera argues that Cabrera Trial Counsel failed to obtain his school, military, and hospital records; failed to retain a mitigation specialist; and never prepared a comprehensive social history for Cabrera's penalty phase defense. Cabrera contends that a proper investigation would have uncovered a history of child abuse and neglect; there is a reasonably probability that the jury would not have voted 11–1 to recommend the death penalty if a proper mitigation case had been presented; and, accordingly, Cabrera would not have been sentenced to death by the Trial Court.
B. The Standard for Mitigation in a Capital Case
The United States Supreme Court has recognized that defense counsel in a capital case is "obligat[ed] to conduct a thorough investigation of the defendant's background." In 1989, the American Bar Association promulgated guidelines for defense attorneys in capital cases ("ABA Guidelines"). With respect to conducting a mitigation investigation, Section 11.4.1 of the ABA Guidelines provides:
A. Counsel should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase of a capital trial. Both investigations should begin immediately upon counsel's entry into the case and should be pursued expeditiously.
B. The investigation for preparation of the guilt/innocence phase of the trial should be conducted regardless of any admission or statement by the client concerning facts constituting guilt.
C. The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.
According to the introductory paragraph of the ABA Guidelines, the guidelines serve to "enumerate the minimal resources and practices necessary to provide effective assistance of counsel." The ABA Guidelines delineate the prevailing professional norms for defense counsel in capital cases. Failure to follow the guidelines is not tantamount to ineffective assistance of counsel per se, but the ABA Guidelines do set a standard for evaluation of Cabrera Trial Counsel's conduct regarding its mitigation investigation.
The ABA Guidelines comment that defense counsel's "duty to investigate it not negated by the expressed desires of a client. Nor may [defense] counsel sit idly by, thinking that the investigation would be futile. The attorney must first evaluate the potential avenues of action and then advise the client on the merits of each."
C. Cabrera Counsel Was Well Aware that a Mitigation Expert Should Have Been Retained and, Indeed, Planned to Hire an Expert But Did Not Do So
Cabrera Trial Counsel testified at the postconviction hearing that they did not hire a mitigation specialist for the Rockford Park Trial because that was not the prevailing professional norm in 2001. Instead, Cabrera Trial Counsel maintains that Mr. Carl Kent ("Defense Investigator") conducted an investigation into Cabrera's background and that this investigation was sufficient.
Cabrera Trial Counsel Deckers represented Cabrera at the Rockford Park Trial while contemporaneously representing Jack Outten, another client in an unrelated criminal case, in a postconviction proceeding. With respect to the Outten matter, Deckers argued that Figliolia (coincidentally Decker's co-counsel in the Rockford Park Trial) was ineffective as counsel for Outten because Figliola failed to conduct a proper mitigation investigation in accordance with the ABA Guidelines. In support of the postconviction case in Outten, Deckers submitted an expert report, stating in relevant part:
[P]reparing a thorough mitigation case is the single most important thing an attorney can do in a death-penalty case, short of convincing the prosecutor not to seek death in the first instance. An inadequate investigation is almost a certain prescription for death.
The Court cannot reconcile Cabrera Trial Counsel's postconviction hearing testimony that, despite Cabrera Trial Counsel's direct involvement in the Outten case, they were unaware of the 1989 ABA Guidelines and the importance of mitigation experts.
Moreover, the mitigation specialist used for the postconviction proceedings in the Outten case is the same mitigation specialist Cabrera Trial Counsel noted should be hired for Cabrera's case, but was not retained. Indeed, Cabrera Trial Counsel's files include at least three separate notes hand-written by Cabrera Trial Counsel indicating that a mitigation specialist should be hired for Cabrera. In fact, one of the notes specifically identifies the name of a mitigation specialist, which was the same mitigation specialist Deckers was contemporaneously relying upon in the Outten case. Accordingly, Cabrera Trial Counsel were aware that prevailing professional norms required a mitigation specialist and they had specifically considered retaining such an expert.
D. Cabrera Trial Counsel Concedes Focus on Guilt Phase to the Exclusion of Penalty Phase
Cabrera Trial Counsel denies the allegations of ineffective assistance of counsel, stating, "[Cabrera Trial] Counsel believes that the presentation of the mitigation evidence was adequate and consistent with Cabrera's instructions for the penalty hearing . . . . [Cabrera Trial] Counsel is unaware of any important mitigation evidence that was not presented to the jury or any evidence that would have likely altered the jury's 11–1 vote." Cabrera Trial Counsel's Rockford Park Trial strategy focused on the guilt phase rather than the penalty phase of the Rockford Park Trial. At the postconviction hearing, Cabrera Trial Counsel testified that they focused on the guilt phase because "once the jury found out that [Cabrera] was already serving life for [the] murder [of Otero] . . . it would be tough to give [Cabrera] anything other than the death penalty." Neither attorney prepared for the penalty phase because Cabrera Trial Counsel agreed to rely on the mitigation investigation conducted for the Otero Trial instead.
Cabrera Trial Counsel focused on the guilt phase and reused the Otero Trial mitigation investigation for the penalty phase. This was a strategic decision and the Court must determine if Cabrera Trial Counsel's decision to reuse the Otero Trial mitigation investigation at the Rockford Park Trial was objectively reasonable. The Court will give deference to "strategic decisions made after thorough investigation of law and facts relevant to plausible options, " as such decisions are "virtually unchallengeable." In other words, the question for the Court is not whether Cabrera Trial Counsel should have presented mitigation evidence at the Rockford Park Trial. Rather, the question is whether reasonable judgment supported the extent of Cabrera Trial Counsel's mitigation investigation (i.e., the use and de minimis supplementation of the Otero Trial investigation) and if that investigation supported the subsequent decision not to introduce additional mitigating evidence at the Rockford Park Trial.
E. Reliance on the Otero Mitigation Investigation was Not Professionally Reasonable
The Otero Trial mitigation investigation primarily consisted of a psychological evaluation of Cabrera by Dr. Edward Dougherty. On May 30, 1998, Dr. Dougherty completed a report on Cabrera ("Otero Report"), the purpose of which was to complete a comprehensive psychological evaluation of Cabrera and render an opinion as to Cabrera's complete mental health. In addition to completing four psychological tests, Dr. Dougherty reviewed Otero Trial discovery materials and a background history of Cabrera completed by an investigator.
The Otero Report stated that Cabrera "tends to portray himself as being relatively free of common shortcomings to which most individual[s] [sic] will admit, and he appears somewhat reluctant to admit minor faults." The Otero Report characterized Cabrera as lacking anxiety, problematic behavior, or any "serious indicators of a major psychopathological condition." Dr. Dougherty concluded the Otero Report with the following, "it is clear that Mr. Cabrera could function in a highly structured situation such as a state prison. There was no indication that [Cabrera] is [an] [sic] actively violent person who would be a danger to himself or other people in a prison environment."
At the Rockford Park Trial, Cabrera Trial Counsel relied on the Otero Trial investigation because "it was successful in the Otero Trial."  However, Cabrera Trial Counsel failed to address the unanswered questions posed by the Otero Trial investigation. For instance, Cabrera Trial Counsel did not address lingering concerns from Dr. Dougherty's Otero Report regarding certain statements Cabrera made: "I keep reliving something horrible that happened to me . . . . I've been troubled by memories of a bad experience for a long time . . . . I have had some horrible experiences that make me feel guilty." At the Otero Trial, Dr. Dougherty opined that Cabrera has "a problem and [Cabrera] needs to address that problem[, ]" but Dr. Dougherty did not identify the problem.
F. Dr. Dougherty was Unavailable to Testify as a Witness; Dr. Jackson's Last-Minute Independent Review was Cursory and Insufficient; and Dr. Jackson was Not a Compelling Witness
Not only was Dr. Dougherty's Otero Report inadequate, but it was not even presented to the jury by Dr. Dougherty himself because he was unavailable for the Rockford Park Trial. Even though Cabrera Trial Counsel had anticipated that Dr. Dougherty would present the Otero Report as mitigating evidence during the penalty phase of the Rockford Park Trial, Cabrera Trial Counsel did not contact Dr. Dougherty until five days before the Rockford Park Trial began. Due to the short notice, Dr. Dougherty was not available to testify and recommended that his partner, Dr. Ryno Jackson, serve as a substitute witness.
On February 6, 2001, in the middle of the guilt phase, Dr. Jackson completed an independent-but repetitive-psychological evaluation of Cabrera.Dr. Jackson's report ("Rockford Report") reached conclusions based on a clinical interview and five psychological evaluation procedures, as well as Dr. Jackson's consideration of Dr. Dougherty's Otero Report, and the mitigation testimony of Stephanie Cabrera and Cabrera's Mother from the Otero Trial. Dr. Jackson found Cabrera to be psychologically strong and Dr. Jackson suggested that Cabrera's "principal psychological defense mechanism is denial" and that Cabrera demonstrated "some tendency to flights of fantasy of an escapist nature." The Rockford Report indicated that Cabrera's evaluation results suggest "the presence of perceptual dysfunction." The Rockford Report concluded, notwithstanding the perceptual dysfunction and denial mechanisms, Cabrera was well-suited to deal with the demands of prison life.
Dr. Jackson also testified that he prepared the Rockford Report with the limited purpose of evaluating Cabrera's ability to adapt to life in prison. When asked if he had discussed the murders of Saunders and Rowe or any criminal activity at all, Dr. Jackson responded, "No[, ] [f]or the simple reason that I didn't have – well, several reasons really, but primarily because it took an extraordinary length of time to do what I had to do, what I was tasked with doing."
At the postconviction hearing, Cabrera Trial Counsel testified that Dr. Dougherty recommended that Dr. Jackson testify at the Rockford Park Trial because Dr. Jackson "was African-American." According to testimony at the evidentiary hearing, Cabrera Trial Counsel contended that Dr. Jackson was better suited to present to the jury but admitted "[Dr. Jackson] was terrible on the witness stand . . . . [a]nd in hindsight, I would have insisted on Dr. Dougherty instead, but that's in hindsight." In fact, Cabrera Trial Counsel recalled Dr. Jackson's presentation as "bad, " like Dr. Jackson "didn't know what he was talking about, " but it was too late for Cabrera Trial Counsel to make a different presentation.
Therefore, an unprepared witness presented the bulk of Cabrera's mitigation evidence to the jury at the penalty phase of the Rockford Park Trial. The Court is not saying that Cabrera has been prejudiced due to a lackluster witness. Instead, the Court mentions Dr. Jackson's performance on the witness stand as just one of the prejudicial consequences resulting from Cabrera Trial Counsel's untimely and deficient preparation for the penalty phase of the Rockford Park Trial.
G. Additional Mitigation Evidence was Minimal
In addition to the Rockford Report, Cabrera Trial Counsel presented mitigation evidence through the testimony of Ronda Frazier, Cabrera Sr., Stephanie Cabrera, and Luiz Diaz, cousin of co-defendant Reyes. Ronda Frazier testified, specifically, as to her friendship with Cabrera. Frazier mentioned Cabrera's upbringing and recollections he shared with her, of him having it rough growing up. This prompted the Trial Court to call for a sidebar conference.
H. The Trial Court Raised Concerns Regarding Defense Evidence Presented
At sidebar, the Trial Court discussed recent involvement in another criminal trial where the trial judge stated that he had spent three days addressing the issue of whether the defendant should present evidence in a penalty hearing. The Trial Court explained to Cabrera Trial Counsel, "I mention this for several reasons. . . . Ronda Frazier regarding how [Cabrera] had opened up to her and mentioned it was rough, the things [Cabrera] had growing up."
It therefore seems that the Trial Court was concerned that potential issues existed because of Cabrera's upbringing and the concern was significant enough to warrant consideration. Similarly, the State had expressed its concern that certain areas of Cabrera's life had not been explored or investigated, asking, "What was Ronda Frazier talking about when she was alluding to things that [Cabrera] confided in her?"
In response to the inquiry, Cabrera Trial Counsel remained steadfast that, according to Cabrera, "there [were] no family problems" and Cabrera will not admit what other people alleged about his childhood. Cabrera Trial Counsel conceded that it only learned about Cabrera Sr.'s lifestyle, earning a living as a gambler and bookie, on that day but that the information did not have "any bearing" on the case. Further, Cabrera Trial Counsel reiterated that Cabrera was very secretive and that counsel deferred to Cabrera's wishes not to reveal anything negative about his childhood. With that, the sidebar conference concluded.
I. Reliance on Cabrera's Self-Report was Not Reasonable
It is ineffective for defense counsel to abandon an investigation after gathering "'rudimentary knowledge of [the defendant's] history from a narrow set of sources.'" The Otero Report included a section on Cabrera's background but the information was based solely on Cabrera's own recollection of his childhood. Dr. Dougherty took Cabrera's information at face value and Cabrera Trial Counsel did nothing to investigate evidence that might contradict Cabrera's own claims of an average childhood. Furthermore, as the Rockford Park Trial progressed, Cabrera Trial Counsel did nothing to substantiate Cabrera's recollection of his childhood and asked Dr. Jackson to evaluate Cabrera only on how he would fare in prison. Cabrera Trial Counsel's contention that exploration into Cabrera's childhood would have been fruitless based on Cabrera's assertions is unpersuasive. Moreover, it is inconsistent with the mitigating evidence developed in connection with the pending postconviction motion.
Decisional law mandates that defense counsel's strategic decisions properly involve consideration of the defendant's own statements, actions, and preferences. On the other hand, the mitigation investigation cannot be limited to the degree of information offered by the defendant as to his own past. In Porter v. McCollum,  the United States Supreme Court explained that a "fatalistic or uncooperative [client] . . . does not obviate the need for defense counsel to conduct some sort of mitigation investigation." Similarly, in Rompilla v. Beard, the United States Supreme Court determined that the defense counsel's mitigation investigation was deficient notwithstanding the defendant's minimal contributions and unwillingness to address his past.
J. A Complete Mitigation Investigation Would Have Revealed Significant Mitigating Evidence that Should Have Been Presented to the Jury
Cabrera's Rule 61 motion presents extensive mitigating evidence that Cabrera Trial Counsel would have uncovered had a proper mitigation investigation been undertaken.
1. A Complete Psychological Evaluation Would Have Revealed Significant Mitigating Evidence Including Abuse and Trauma
Cabrera Rule 61 Counsel hired Dr. Victoria Reynolds to evaluate Cabrera's history and the extent of any abuse and/or trauma Cabrera may have experienced during the early years of his life. Dr. Reynolds was retained to determine how trauma may have impaired Cabrera's functioning and development.
Dr. Reynolds interviewed Cabrera on August 27 and 28, 2012, for a total of thirteen (13) hours. Dr. Reynolds also conducted interviews with Cabrera's mother and Daisy Rodriguez, a childhood friend of Cabrera. In addition, Dr. Reynolds reviewed 34 documents such as the Otero Report, the Rockford Report, Cabrera's criminal records, school records, and other records related to Cabrera's social history. Dr. Reynolds then issued a twenty (20) page report outlining her findings ("Reynolds Report").
In summary, Dr. Reynolds concluded that Cabrera suffered from a history of physical, emotional, and verbal abuse. As examples of the prolonged abused suffered by Cabrera, Dr. Reynolds noted eight (8) instances of physical abuse by Cabrera Sr.; thirteen (13) instances of emotional and verbal abuse by Cabrera Sr.; fifteen (15) instances of exposure to domestic violence; and certain recollections of fundamental maternal neglect. Dr. Reynolds also noted specific instances of trauma including five (5) events of neighborhood violence; three (3) recollections of being assaulted by strangers; and involvement in four (4) accidents resulting in physical injuries. Some details include:
[Cabrera] was the scapegoat for most of his father's physical rage. Beginning when [Cabrera] was very young, [Cabrera Sr.] hit [Cabrera] with his hands, belts, whips and hoses . . . . When [Cabrera] was 4 or 5 years old, while visiting a neighbor's house, he stole a lighter. When the neighbor asked if [Cabrera] had taken the lighter, [Cabrera] admitted it, knowing that what he'd done was wrong. [Cabrera Sr.] reacted by verbally berating [Cabrera], stating that [Cabrera] had 'embarrassed the hell out of him, ' and whipping [Cabrera] with a hose . . . . [Cabrera's] mother corroborates [Cabrera's] memory and recalls that [Cabrera Sr.] 'went on a rampage' with the hose and that [Cabrera] fell to the floor from the force of the blows. [Cabrera's mother] recalls throwing herself over [Cabrera] to protect him and getting hit herself with the hose. She recalls cleaning [Cabrera] up afterwards and that there were welts on his back and legs. [Cabrera's mother] also recalls that the beatings and screaming coming from their house were so loud that the neighbor from whom [Cabrera] stole the lighter came over and said she felt terrible that [Cabrera] had gotten into so much trouble.
According to Dr. Reynolds, Cabrera also recalled an event where he and his sister were "goofing around with his father's friends' kids, burping, laughing" at a restaurant and, when told to stop, the children continued. Cabrera described the following events to Dr. Reynolds:
[Cabrera] described how [Cabrera Sr.] 'collared him up, ' by picking him up by the front of his shirt, and slammed [Cabrera] against the wall. [Cabrera Sr.] then took off his belt and beat [Cabrera] all over his body.
Dr. Reynolds emphasized, "[Cabrera] summarized the situation as his fault, and was desperate to correct the fact that his father was so upset with him.
In addition, Cabrera Sr. engaged in emotional and verbal abuse against Cabrera throughout Cabrera's childhood. The Reynolds Report included the following examples:
[Cabrera] recalls hearing his father tell his sister that he wished she'd never been born. More often, however, his father would communicate how disappointed and disgusted he was with [Cabrera].
One of the most traumatic experiences [Cabrera] recalls occurred when [Cabrera Sr.] would threaten to ostracize [Cabrera] from the family for his misdeeds. Despite the fact that [Cabrera] wasn't doing anything wrong and was very submissive and accommodating to his father's demands, [Cabrera] recalls [Cabrera Sr.] telling him on several occasions he'd gotten so tired of dealing with [Cabrera] that he was going to send [Cabrera] to a residential home. [Cabrera Sr.] would pick up the phone and dial a number. [Cabrera] believed he was speaking to someone at a residential facility.
Cabrera's mother corroborated Cabrera's claims of physical and emotional abuse and discussed her own maternal neglect of Cabrera. Cabrera's mother recalled watching Cabrera Sr. beat Cabrera with a belt for coming down the stairs after bedtime,  and listening to Cabrera Sr. blame his own unhappiness on Cabrera and threaten to abandon and punish Cabrera.
2. A Complete Mitigation Investigation Would Have Exposed Cabrera's Deficient Education Record
A proper mitigation defense would also have presented inconsistencies with the information provided by Cabrera for the Otero Trial investigation, including Cabrera's academic history. According to Cabrera, he did well in school and "never failed a class." Relying on Cabrera's self-report, Cabrera Trial Counsel explained to the Trial Court that Cabrera "had an exemplary record . . . . [h]e was a C plus student [and] had only two absences in four years." However, Cabrera's records do not support these assertions. Even a cursory review of Cabrera's high school transcript shows that Cabrera struggled with school attendance and grades. For example, in his first year of high school, Cabrera failed a basic life sciences class and was absent seven (7) times. Over the next three years, Cabrera's performance and attendance declined. Cabrera failed six (6) classes and was absent 10, 15, and 20 times, respectively, totaling 52 absences over four years.Indeed, Cabrera graduated from high school with a grade point average of 1.4.
Moreover, at the postconviction hearing, Cabrera's high school teacher Ms. Barbara Finnan testified about Cabrera's middle school years and her concerns about his "family environment." Finnan's testimony corroborated the conclusions in the Reynolds Report: Cabrera suffered from hypervigilance and anxiety. The reality of Cabrera's actual high school performance was completely at odds with the presentation made at the Rockford Park Trial.
K. Cabrera Trial Counsel was Ineffective With Respect to the Mitigating Evidence Presented in the Penalty Phase
To establish ineffective assistance of counsel, Strickland requires Cabrera show both unreasonable performance and prejudice from such error. To satisfy the prejudice prong-with respect to Cabrera's presentation of new mitigation evidence-Cabrera must prove there is a substantial likelihood that, absent Cabrera Trial Counsel's errors, the Trial Court would have had a reasonable basis to conclude that the balance of aggravating and mitigating circumstances did not warrant death. This Court must "consider all the relevant evidence that the [Trial Court] would have had before [it] if [Cabrera Trial Counsel] had pursued a different path."
1. Cabrera Trial Counsel's Performance Fell Below an Objective Standard of Reasonableness with Respect to Mitigation
Consideration of the first prong of Strickland requires an analysis of whether the performance of Cabrera Trial Counsel fell below an objective standard of reasonableness. Cabrera Trial Counsel's strategy ignored the importance of a mitigation investigation in capital cases. Cabrera Trial Counsel did not present mitigation evidence as to Cabrera's childhood, upbringing, family, or otherwise. The decision to rely on the Otero Trial investigation was unreasonable because it was incomplete and it was presented by an unsatisfactory witness who conducted only a cursory interview with Cabrera, and did not speak to family members or review any objective documentation from Cabrera's childhood.
Cabrera Trial Counsel faced difficulty when attempting to glean insight into the unflattering details of Cabrera's background because Cabrera was reluctant to expose his traumatic history and abusive childhood. Nonetheless, Cabrera Trial Counsel had a duty to conduct an independent investigation. For example, Cabrera Trial Counsel did not pursue exploration into Cabrera's childhood in light of Dr. Dougherty's later concerns of abuse and conclusion that Cabrera refused to acknowledge certain shortcomings.
This Court is cautious to avoid the distorting effects of hindsight when evaluating Cabrera Trial Counsel's conduct and the Court recognizes that Cabrera continued to deny any allegations that he suffered as a child and respects the influence such denial had upon Cabrera Trial Counsel's presentation.Nevertheless, Cabrera Trial Counsel had a duty to conduct more than a rudimentary investigation, especially in light of suspicions or concerns of issues that might have uncovered mitigating evidence. Indeed, the Otero Trial investigation and limited supplemental Rockford Park Trial investigation overlooked certain indications-or red flags-of underlying issues related to Cabrera's childhood that a reasonable attorney would have explored in an attempt to uncover mitigation evidence.
In certain circumstances, defense counsel must "do more" to uncover mitigating evidence. Because Cabrera Trial Counsel's strategy relied on the undeveloped information obtained in the Otero Trial mitigation investigation supplemented by the Rockford Report, without more, its performance fell below an objective standard of reasonableness. The first prong of Strickland is satisfied.
2. Cabrera Suffered Prejudice Because There is a Reasonable Likelihood that the Result of the Proceeding Would Have Been Different
A proper mitigation defense would have presented an entirely different picture of Cabrera's background. Cabrera Trial Counsel interviewed Cabrera as the sole source of information of Cabrera's childhood. On the other hand, Dr. Reynolds testified at the postconviction hearing that talking solely to the abuse victim is never sufficient because victims tend to minimize "what is objectively abusive."
As another example, Cabrera Trial Counsel failed to contact any of Cabrera's high school teachers to verify Cabrera's claims that he did well in school, and did not even obtain Cabrera's school records to substantiate his claims that he did "well" in school. Cabrera Trial Counsel's claims of Cabrera's "exemplary" high school experience sharply contrasted to the reality of his high school experience.
In addition, even the limited investigation by Defense Investigator identified multiple individuals who could discuss Cabrera's background but Cabrera Trial Counsel never interviewed a majority of the individuals identified by Defense Investigator. Cabrera Trial Counsel's opening statement from the penalty phase of the Rockford Park Trial highlights Counsel's strategy. In relevant part, counsel stated:
You are not going to hear that Luis Cabrera had a terrible upbringing, that his father was an alcoholic that beat him; that he is a social outcast. That is not going to come out. Luis Cabrera is basically - -there is nothing wrong with him. No explanation for the things he has done. That is the tough part. . . . You are going to hear from [Cabrera Sr.] [a]nd the message is simple, don't do to our [family] what [Cabrera] did to others. Give [Cabrera] life.
Cabrera Trial Counsel's failure to conduct a complete and thorough investigation prejudiced Cabrera. That there was "nothing wrong" as actually presented by Cabrera Trial Counsel was inaccurate and woefully deficient. Had Cabrera Trial Counsel presented a mitigation case at the penalty phase that accurately presented Cabrera's childhood and upbringing, there is a substantial likelihood that the jury would have had recommended life rather than death. The second prong of Strickland is satisfied.
3. The Remedy for Ineffective Assistance of Counsel During the Penalty Phase is to Vacate the Death Sentence Imposed by the Trial Court
Cabrera was entitled to have the extensive mitigating evidence presented to a jury for its consideration in reaching a sentencing recommendation. This Court finds that Cabrera Trial Counsel provided ineffective assistance of counsel with respect to the mitigation investigation, the lack of preparation for the penalty phase, and the inaccurate presentation of Cabrera's childhood and upbringing. Under Strickland, the appropriate remedy is for Cabrera's death sentence to be vacated.
V. CABRERA IS NOT ENTITLED TO RELIEF FOR HIS REVERSE-BATSON CLAIM BECAUSE IT DOES NOT SATISFY STRICKLAND
This Court will consider the merits of procedurally sufficient constitutional claims as well as any colorable claim of ineffective assistance of counsel. Cabrera's reverse-Batson claim will be addressed on the merits as a claim of ineffective assistance of counsel. Cabrera argues that Cabrera Trial Counsel's representation was ineffective because Counsel purposefully discriminated against jurors on the basis of race during jury selection thereby committing a reverse-Batson violation of the Equal Protection Clause of the Fourteenth Amendment.
A. Purposeful Discrimination in Jury Selection is Prohibited
In Batson v. Kentucky,  the United States Supreme Court held that discrimination on account of race in selection of jurors, by the State, is prohibited and a prosecutor's "racial discrimination . . . violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." In Powers v. Ohio,  the Supreme Court expanded Batson, holding that "a criminal defendant may object to race-based exclusion of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same races." One year later, in Georgia v. McCollum,  the Supreme Court expanded Batson again, holding that criminal defendants, like prosecutors, were prohibited from engaging in purposeful discrimination on ground of race.A Batson objection to the defendant's exercise of a peremptory challenge is known as a reverse-Batson claim. Batson and its decisional progeny teach reciprocity of equal protection and warn that "[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community." The prohibition of purposeful discrimination preserves the integrity of the criminal justice system.
B. Cabrera Trial Counsel Utilized a Racially-Motivated Strategy in Jury Selection to Exclude Three Black Potential Jurors
Cabrera Trial Counsel pursued a racially-motivated strategy during jury selection by strategically excluding black males and mothers of young black males from the jury. Specifically, Cabrera Trial Counsel exercised peremptory challenges to exclude three black potential jurors from the jury of the Rockford Park Trial. Also, Cabrera Trial Counsel expressed a preference for Hispanic jurors.
The first reference to considerations of juror race during jury selection was a discussion on the record initiated by Cabrera Trial Counsel:
MR. FIGLIOLA: Your Honor, we're not going to - - I'd like to say something. We're not going to oppose [the State's strike of Mr. Caraballo for cause]. I don't think we can . . . . However, out of a jury very near of 157, [Mr. Caraballo] was the only Hispanic.
MR. WOOD: That's not true.
THE TRIAL COURT: Well, [Mr. Caraballo] was the only one ...