Ninth Circuit panel split on capital habeas appeal concerning IAC

Today in Leavitt v. Arave, No. 08-99002 (9th Cir. May 17, 2011) (available here), a panel of the Ninth Circuit split 2-1 when reviewing Idaho's appeal of the grant of habeas relief to a murder defendant sentenced to death.  The authors of the rulings in this case listed on page one of the 37-page opinion provide knowledgeable readers with an immediate notion of the outcome: "Opinion by Chief Judge Kozinski; Dissent by Judge Reinhardt."  Lest there is any uncertainty, here is the start of the majority opinion authored by Chief Judge Kozinski:

With fifteen strokes of his knife, Richard Leavitt slashed and stabbed Danette Elg to death in her bedroom.  Then, as Ms. Elg lay dying on top of her punctured waterbed, Leavitt hacked out her womanhood — just as his ex-wife had seen him do to “play[ ] with the female sexual organs of a deer.”  State v. Leavitt (Leavitt I), 775 P.2d 599, 602 (Idaho 1989).  We decide whether Leavitt’s lawyer rendered ineffective assistance of counsel while trying to have him acquitted of the death penalty.

And here is the start of the dissent authored by Judge Reinhardt:

The circumstances of Richard Leavitt’s murder of Danette Elg are indeed horrendous.  That alone should have been a signal that there was something radically wrong with Leavitt, who was otherwise a law-abiding citizen, a father and a husband.  I agree with the trial judge who sentenced Leavitt to death that “the fact that” such a person “would do this act leaves one[ ] asking why.”  Leavitt’s counsel, David Parmenter, failed to provide an answer to that question that could have saved his client’s life: Leavitt suffered from an organic brain disorder in the part of the brain responsible for regulating emotion and impulse control.  Despite the majority’s many tangents and alternative holdings, Leavitt’s habeas petition concerns one simple point: whether counsel should have made a motion for the MRI examination of his brain that the courtappointed neurologist had recommended. Had Parmenter done so, the examination would have revealed Leavitt’s organic neurological disorder — powerful mitigating evidence that could well have altered the sentencing decision of the trial court.  That alone is sufficient to resolve this case. Parmenter’s failure, despite the neurologist’s recommendation, to seek the examination that was necessary to establish the existence of Leavitt’s organic brain disorder unquestionably rendered his performance deficient; and that inexplicable conduct prejudiced his client under any reasonable standard.  Not surprisingly, the United States District Court for the District of Idaho so found, and we are asked simply to affirm the lower court.