Evidence of defendant's culture in a murder trial

|The Volokh Conspiracy |

Here's a very interesting case, in which the federal district court handed down a decision last week, Issa v. Bagley. First, an excerpt from the facts:

At approximately 1:30 a.m. on November 22, 1997, Andre Miles, armed with a high-powered assault rifle, confronted brothers Maher and Ziad Khriss in a parking lot in front of Save-Way II Supermarket in Cincinnati, Ohio … and demanded money. As Maher and Ziad put money on the ground and pleaded for their lives, Miles shot and killed them.

After investigating the shootings, Cincinnati police concluded that Miles had been hired to kill Maher. The police theorized that Maher's wife, Linda Khriss, had offered to pay … Ahmad Fawzi Issa to kill Maher. The police believed that Issa then enlisted Miles to do the killing, supplied him with the weapon, and arranged the opportunity. Issa, Miles, and Linda were each charged with aggravated murder.

Prior to the murders, Maher and Linda Khriss owned and operated Save-Way. In addition to Maher and Linda, Renee Hayes, Souhail Gammoh, and Issa worked at the store….

In the two weeks preceding the murders, two witnesses saw Issa with a rifle in his apartment. On November 14, Dwyane Howard, Hayes's husband, went to Issa's apartment to wake him for work. Issa invited Howard in and showed him a military-style rifle. When Howard asked Issa what he was going to do with the rifle, Issa's only response was "a little sneer." After the murders, Issa called Howard and told him not to tell anyone that he had seen Issa with a gun. At Issa's trial, Howard identified the murder weapon as being identical to the rifle Issa had shown him. No more than two weeks before the murders, Issa's coworker and friend, Gammoh, while visiting at Issa's apartment, also saw Issa with a rifle ….

Issa was convicted of murder (in 1998, I think), his conviction and death sentence were affirmed by the Ohio courts, and Issa filed a petition for habeas corpus in federal court. The federal district court's decision last week (Issa v. Bagley) discussed many issues that Issa raised, but I found one particularly interesting. (For more on how culture sometimes is relevant in criminal cases, see here and here, but here, of course, the question is whether a lawyer was ineffective for failing to introduce cultural evidence—something that's generally very hard to prove.)

Issa's fifth ground for relief argues that his trial counsel failed to retain, consult with, and present testimony from a cultural expert. This expert, he asserts, could have explained to the jury certain factors concerning Issa's cultural orientation as a Jordanian national, and his assimilation (or lack thereof) into American culture. He also suggests this expert would have educated the jury about Jordanian/Muslim traditions, particularly concerning his mother's fully veiled appearance and her reticence about speaking in public.

During his post-conviction proceedings, Issa submitted an affidavit from a clinical psychologist, Janice Ort, who stated that Issa's cultural background "merits further investigation" because his "assimilation into the American culture is a significant factor in his psycho-social history." The Ohio Court of Appeals rejected this post-conviction claim, holding it did not establish ineffective assistance of counsel "… merely because it presents a new expert opinion that is different from the theory used at trial. This claim involved nothing more than an alternative mitigation theory and did not provide substantive grounds for postconviction relief."

Issa also suggests that a cultural expert could have educated the jury about the issue of tribal customs of retribution. He refers to a document entitled "Tribal Truce on a Right." This document, dated September 12, 1998, apparently memoralized an agreement reached between the families, or tribes, of Maher and Ziad Khriss and the Issas. It states that, after debates, "the family of the two late deceased kindly offered a temporary tribal truce (Atwa) on a 'Right', till the case is totally and finally adjudicated into within the jurisdiction of the competent courts in the United States of America."

The agreement states that if Issa is convicted, the truce will be renewed and "remaining tribal procedures" taken in Jordan. If Issa is acquitted, the truce would be void and not renewed. It is signed by a number of individuals, apparently members or representatives of the two groups. This document was not discovered by trial counsel or Issa's mitigation specialist until, at the earliest, just before the mitigation phase of the trial. The testimony is unclear about when the defense team actually discovered the existence of this written document.

Jim Crates, Issa's trial mitigation specialist, stated in his post-conviction affidavit that the truce raised an issue of retribution for the Khriss murders:

From what I could gather from David Shalash, Issa's family and cousins in Jordan believed that as long as Ahmed remained on Death Row, there would be no retribution against them in Jordan by members of the Khriss family. It was my impression that Ahmed Issa's family in Jordan believed that if Ahmed was released from prison, the 'payment' for his crime would be 'taken out of the hide' of Ahmed's Jordanian family members by Jordanian members of the Khriss family.

Crates' "impression" is confirmed by some of Issa's family members' post-conviction affidavits. For instance, Issa's mother Sarah asserted:

The Kreiss [sic] family believes that my son is guilty. They wanted him to implicate Linda, as well. Nidal Kreiss sent a threatening letter to Ahmed while he was at the jail in Cincinnati. The letter told Ahmed that if Ahmed did not say that Linda was involved, that you never can tell what will happen to your brothers and sisters. This letter caused us to go into hiding out of fear. Our family expected the Kreiss family to act under the old custom of Retribution. An intermediary for the Kreiss family approached our family for money to be paid for the deaths of their loved ones. We did not have such a large sum.

Miriam (Issa's sister) stated that she never felt personally threatened, but that the Issa family

… sent an offer to pay the Kreiss family for their loss by way of intermediaries who are notables of the community…. My family was afraid when we learned what had happened. In the beginning, we did not know what the Kreiss family would do. After the contract was drawn up, we could relax a little.

Miriam also mentions the letter from Nidal Kreiss to Ahmed. And Jamal, Issa's brother who testified at the penalty hearing, stated in his affidavit:

The behavior of Nidal Kreiss, brother of the victims, is one of the reasons that my family went into hiding after Ahmed's arrest in the US. Nidal had threatened Ahmed, by letter, that we, Ahmed's siblings would be killed if Ahmed did not implicate Linda in the conspiracy…. We were afraid of what the Kreiss family would do. While there were no direct threats made, we expected retribution.

The Ohio Court of Appeals addressed this issue in Issa's seventeenth claim for relief, claiming that counsel failed to adequately investigate the issue of "family retribution." The court concluded that Issa had not established prejudice: "[The evidence] would not have been admissible in the guilt phase, as it was irrelevant to the issue of whether Issa participated in a plot to kill Maher Khriss…. As to the mitigation phase, not one family member stated in their affidavits that they would not have testified on Issa's behalf because of the fear of retribution. To the contrary, they all stated that if defense counsel had asked them, they would have testified."

Issa contends that a cultural expert would have been able to explain this tribal custom of retribution, which in turn would have helped explain to the jury Sarah Issa's reticence in her testimony, and Issa's alleged "shyness" or lack of vigorous assistance to his lawyers. To support this argument, Issa presented testimony at the evidentiary hearing in this case from Dr. Fatima Al-Hayani, a professor of Middle Eastern studies with extensive experience in Islamic law and cultural traditions, especially in the domestic relations arena.

Assuming that this testimony is admissible, it does not establish that Issa was prejudiced or that his counsel's performance was deficient under Strickland. Dr. Al-Hayani described some of the major differences in law and tradition that she believes should have been presented to the jury, to help them understand Issa and the appearance and demeanor of Issa's mother. The concept of a jury trial is unknown in Jordan and the Middle East generally. Women generally do not speak in public, particularly women like Sarah Issa, who is not educated and who did not work outside her home.

Dr. Al-Hayani also testified that under Islamic law, Issa could not be convicted of murder because Miles—the actual killer—would be precluded from testifying against Issa, and no other eye witnesses were available. Islamic law requires eye witnesses in order to convict, and it forbids use of circumstantial evidence. Given this law, she surmises that trial counsel's description of Issa as not forthcoming, or not fully engaged in assisting with his defense, is quite understandable as his background would strongly reinforce a belief that he could not be convicted of murder.

[Issa's chief trial counsel] Agar testified that her experience with Hamilton County juries is that jurors do not trust "cultural experts." She related an example of an expert who testified about battered woman syndrome on behalf of defendants accused of crimes against their abusive spouses. Agar said that this expert stopped testifying in trials due to several adverse outcomes and the negative juror reactions to the testimony.

Agar also testified (and the record fairly demonstrates) that Issa spoke very good English and seemed very accustomed to American culture. Dr. Al-Hayani, in contrast, never spoke to Issa or to others involved in his trial, so her opinions about Issa's language facility or his cultural assimilation are simply her assumptions.

Agar's testimony is consistent with that of Jim Crates, who testified that he suggested to counsel that a cultural expert be retained, and Agar told him that such an expert would be "too esoteric." Agar affirmatively decided not to emphasize Issa's nationality and Middle Eastern background, to avoid any possibility of awakening any juror bias or prejudice against him.

Issa argues that an expert's description of his background, his mother's reticence, or his father's untimely death, would have "made a difference." But his brother and his mother testified about Issa's family and the move from Kuwait to Jordan, Issa's education and his effort to support his family after his father died. Having an "expert" reiterate that information to the jury does not, in the Court's opinion, establish a reasonable probability of a different outcome.

Dr. Al-Hayani also testified that the tribal truce could have been presented to Issa's jury in a favorable way, especially the fact that the Khriss family would have accepted a sentence of something less than death in lieu of receiving any retribution (such as "blood money") from the Issa family. But the question before the Court is not whether counsel "could have" presented this evidence; it is whether the failure to do so establishes a reasonable probability of a different outcome.

Agar's testimony was quite clear that she decided not to employ a cultural expert and to avoid emphasizing Issa's Jordanian heritage and background. Moreover, Agar was aware of the retribution issue even before Linda Khriss' trial. She testified that she learned from someone (perhaps Issa's cousin who acted as the family translator) that if Issa would testify against Linda Khriss, there would be no retaliation taken against Issa's family. Agar said that there were never any direct threats from the Khriss family that she was told about.

Agar also stated that none of Issa's Jordanian family members ever raised the subject prior to Issa's trial, and no one ever expressed any concern for their personal or family safety. Agar's testimony is confirmed by some of the family members' affidavits which described a fear of retribution, but confirmed that no threats had been made against the family. There is simply no evidence that any family member did not assist Issa or his lawyers because of a fear of retribution.

Evidence or expert testimony concerning the tribal custom of retribution, and its purported effect on the demeanor of the Issa family witnesses, does not in the Court's view rise to the level of the sort of "potentially powerful mitigating evidence" that any reasonable attorney would have discovered and would have introduced at Issa's trial. Nor does this evidence raise a reasonable probability that Issa's jury would have imposed a lesser sentence if they had been aware of this information.

Counsel's tactical or strategic decisions concerning the presentation of mitigation evidence, including her decision not to present testimony from a cultural expert, are presumed to be within the realm of constitutionally-acceptable representation. Even giving Issa the benefit of the doubt that the failure to retain an expert simply to facilitate communications with the family was deficient performance, Issa has not demonstrated that the result of his trial would likely have been different. The state court's rejection of this ground for relief was therefore neither contrary to, nor an unreasonable application of, federal law ….