In Shellito v. State, ___ So.3d ___, 2013 WL 3334922 (Fla. July 3, 2013), the Florida Supreme Court found that Michael Shellito had satisfied his burden of showing that trial counsel’s performance in mounting a limited investigation and presentation of Shellito's substantial mental health problems was "unreasonable under prevailing professional norms" and that Shellito was prejudiced by counsel’s deficiencies.
In finding deficient performance, the Florida Supreme Court noted that it was only after the guilt phase ended that trial counsel began to seek and obtain medical and school records for the penalty phase that was to commence in a few weeks. The reports that trial counsel received indicated that Shellito suffered from some mental health issues. Although at this point trial counsel did consult with a mental health expert who had performed a competency evaluation of Shellito, counsel conducted no "true follow-up" on the matters indicated in the various reports. Instead, counsel made a "marginal attempt to present organic brain damage and other impairment as mitigation" through the introduction of some of the records. Trial counsel claimed in post-conviction proceedings to have made a tactical decision to forgo expert testimony based on the negative information that could come out on cross-examination and a fear of rebuttal testimony from the State. Trial counsel’s lack of follow-up on the information he had obtained was deemed by the Florida Supreme Court to be deficient performance, as was counsel’s failure to have Shellito’s mental health issues "presented by an expert at trial to explain their significance and impact on his behavior at the time of the murder." The Florida Supreme Court reached this conclusion even though it had earlier rejected Shellito’s claim that trial counsel was ineffective in failing to present a voluntary intoxication defense at the guilt phase, finding that this was the result of a reasonable tactical decision to pursue a third-party culpability defense.
As for prejudice, the Florida Supreme Court summarized the extensive expert testimony that was presented in the post-conviction proceeding. There was testimony from a psychologist who evaluated Shellito post-trial and who opined, inter alia, that at the time of the murder, Shellito was under the influence of extreme mental or emotional disturbance based on his organic brain dysfunction, mood disorder, and erratic behavior which could have been a function of his bipolar disorder, and that Shellito's ability to appreciate and conform his conduct to the requirements of the law was impaired. The psychologist also noted Shellito’s history of cognitive disorder and antisocial personality, a prior head injury, verified physical and sexual abuse, and that Shellito's parents contributed to the abuse experienced by Shellito. A second psychologist who examined Shellito post-trial testified that the organicity and neglect in his family caused Shellito's antisocial behavior. The second psychologist also opined that at the time of the murder Shellito was suffering from an extreme emotional disturbance and had significant limitations on his ability to conform his behavior or appreciate the fact that one of the consequences of armed robbery could be that someone might get killed.
Shellito underwent a Positron Emission Tomography (PET) scan of his brain post-trial and a psychiatrist testified about what the PET images showed. Among his findings was an abnormality in the frontal lobe, which involves the abilities to exercise proper judgment and to inhibit acting out inappropriate impulses. The psychiatrist further opined that the images were not inconsistent with a bipolar diagnosis or a diagnosis of organic brain damage.
Further expert testimony was presented through a psychiatrist who had treated Shellito at a hospital approximately three years prior to the capital offense. Shellito had been referred to that hospital because of his behavioral problems, including arson, suicidal and homicidal threats, and running away. This psychiatrist concluded that Shellito has organic brain syndrome, that he was three to seven years behind his chronological age, and that his IQ was below average. The expert opined that Shellito qualified as having severe mental or emotional disturbance and that Shellito's brain deficit causes impulsive aggression and very poor planning ability, that his ability to make decisions is significantly impaired by his impulsivity, and that his cognitive faculties have never been intact.
In addition, to these experts, post-conviction counsel presented testimony from fact witnesses. Shellito's older sister, Rebecca, testified that Shellito hit his head against the wall when he got mad, was depressed, talked like a nine-year-old when he was actually thirteen, was called "retarded," and wet the bed until the time he went to prison. Rebecca also provided significant details about the neglectful and abusive home that Shellito was raised in. Her testimony was corroborated by other witnesses. Shellito's kindergarten teacher testified that Shellito was emotionally handicapped, had mood swings, was a loner, ate glue and paper, and would be fine one minute but then something would come over him that he could not control. The teacher had a very close bond with Shellito, which was the one stability he had in his life. She recounted hearing from a neighbor that Shellito would scavenge for food, sometimes in garbage cans, and roam late at night. An investigator for Shellito's post-conviction counsel testified about statements made by Shellito's elementary school special education teacher in a class for emotionally handicapped students. This teacher informed the investigator that she saw signs of abuse or neglect, that Shellito was not able to work at the appropriate grade level, and that he came to school hungry, dirty, in need of a lot of attention, and was easily frustrated. As for substance abuse, other witnesses testified that Shellito was observed drinking alcohol heavily every day until he passed out and smoking marijuana daily including using both the night of his arrest. According to one witness, the alcohol and drugs began to adversely affect him at eighteen years old.
After recounting the post-conviction presentation, the Florida Supreme Court observed that it "shows a different picture of Shellito's upbringing than what was presented at trial." (In its direct appeal decision, the Florida Supreme Court had described the evidence as showing that "[t]he defendant was raised in a stable, lower middle class home with his mother, older sister and brother.") The Florida Supreme Court concluded:
[B]ased on consideration of the plethora of available mitigation and the dearth of mitigation actually presented, when reweighed against the aggravation in this case, [footnote omitted] our confidence in the outcome of the penalty proceeding is undermined. Thus, Shellito has satisfied the prejudice prong of Strickland. Accordingly, we vacate the sentence of death and remand for a new penalty phase proceeding.