John Walter Castro, Sr. was found guilty by a jury in Kay County, Oklahoma, on April 17, 1984, of armed robbery and felony-murder. He received sentences of death for the felony-murder and life imprisonment for the armed robbery.

Mr. Castro's direct appeal and state post-conviction review of his felony-murder conviction and death sentence were denied by the Oklahoma courts.¹ Mr. Castro filed a 28 U.S.C. Sec. 2254 petition for habeas corpus in which he raised thirteen claims for relief and requested an evidentiary hearing.

The district court considered Mr. Castro's objections to the Magistrate Judge's findings and recommendations and denied the petition without holding a hearing, however, the court issued a certificate of probable cause. This appeal ensued.

We address only one of the issues Mr. Castro raises on appeal. Mr. Castro argues the district court erred in holding the State had no obligation to provide him with expert psychiatric assistance. Because we agree with this contention, we vacate Mr. Castro's death sentence. Our resolution renders it unnecessary for us to consider Mr. Castro's remaining grounds of appeal and we decline to do so.2

I.

The underlying facts concerning Mr. Castro's crime are undisputed. On June 6, 1983, Mr. Castro entered Hobo-T's restaurant in Ponca City, Oklahoma. He purchased a soft drink, played a video game, and spoke with the employee-manager Rhonda Pappan. Later that same afternoon, Mr. Castro returned to the restaurant. After again talking to Ms. Pappan, he asked her if they "needed help." When she turned around to retrieve a job application, Mr. Castro pulled an unloaded .25 pistol from his pocket and demanded she open the cash register. According to Mr. Castro, while he was rummaging through either the register or Ms. Pappan's purse, she pulled a knife on him and they struggled. During the struggle, Mr. Castro stabbed Ms. Pappan multiple times killing her.

That night, the police apprehended Mr. Castro at his home. After he consented to a search, the police found a .25 pistol, bloody clothing, and other forensic evidence of the crime. At the police station, after changing his story three times, Mr. Castro ultimately confessed to Ms. Pappan's murder.

Mr. Castro presented no witnesses in his defense during the guilt/innocence stage of his trial. However, Mr. Castro's trial counsel challenged the voluntariness of his confession. After conducting a hearing, the trial court admitted the confession into evidence. During his closing argument, counsel argued Mr. Castro was only guilty of second degree murder because he never formed the requisite intent to kill Ms. Pappan. The jury rejected this argument, finding Mr. Castro guilty of armed robbery and first degree felony-murder.

In contrast, Mr. Castro actively contested the State during the bifurcated penalty phase of his trial.³ The State presented evidence of two aggravating factors to justify the imposition of a death sentence: (1) the murder was especially heinous, atrocious or cruel; and (2) Mr. Castro constituted a continuing threat to society. Okla.Stat.Ann. tit. 21, Secs. 701.12(4) and (7) (West 1995).

On direct appeal, the Oklahoma Court of Criminal Appeals struck down the especially heinous, atrocious or cruel aggravating circumstance on insufficient evidence grounds. Castro v. State, 745 P.2d 394, 408 (Okla.Crim.App.1987). However, after reweighing the evidence, the court upheld Mr. Castro's death sentence. Id. at 408-09; see also Castro v. State, 749 P.2d 1146, 1148-49 (Okla.Crim.App.1987), cert. denied, 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988).

The State relied on three factors to support the continuing threat aggravating circumstance: Mr. Castro's pretrial escape from Kay County Jail; his confession to committing a prior murder;4 and his confession to committing two earlier armed robberies in Ponca City. Mr. Castro testified extensively during the penalty phase of his trial, admitting killing Ms. Pappan, the prior murder of Beulah Grace Cox, and his two prior armed robberies.

Mr. Castro also testified about his lack of motivation for killing Ms. Pappan. Counsel's strategy during the penalty phase was to have Mr. Castro admit to murder but to avoid a death sentence by having him accept his culpability and attempt to explain why he committed the crime. To facilitate this strategy, Mr. Castro testified he did not know why he murdered Ms. Pappan. He offered the potential explanation "that he thought there was something wrong with his mind." Castro, 745 P.2d at 398.

Mr. Castro described his troubled youth, including being raised by poor grandparents, discovering his mother was a prostitute, being seduced by his mother as an adolescent, and witnessing his brother bludgeon his father to death. Mr. Castro expressed remorse for the killings and told the jury, "I think I deserve to die." Id. Mr. Castro's great aunt, Laura Tucker, testified about his traumatic childhood, his experiences with the police as a youth, and his placement four times in juvenile reform institutions. Id.

Because an understanding of Mr. Castro's mental health history is crucial to the resolution of this appeal, we describe it in detail. Initially, on July 6, 1983, counsel filed a motion titled, "Motion to Obtain Medical Examination of Defendant." In this motion, counsel delineated his concerns.

[W]hile the Defendant was incarcerated in the County Jail of Kay County Oklahoma and from said interview [counsel] developed serious doubts as to the ability of the Defendant to assist counsel in the preparation of the Defendant's defense herein because the Defendant's extremely depressed emotional condition and general confusion relating to the alleged acts with which he has been accused.

In addition, at a pretrial hearing Mr. Castro acted bizarrely. In response to counsel's request and Mr. Castro's outbursts, the trial court ordered him transferred to Eastern State Hospital in Vinita, Oklahoma, for a psychiatric evaluation. Although he did not personally examine Mr. Castro, Dr. R.D. Garcia, the hospital's chief forensic psychiatrist, reported the hospital staff's consensus Mr. Castro was competent to stand trial because he was able to comprehend both the proceedings and the charges against him.

However, Dr. Sandra Petrick, Ph.D., a staff psychologist and a member of the team that examined Mr. Castro, reached a somewhat different conclusion. Dr. Petrick noted Mr. Castro exhibited "symptoms of depression, if not alleviated to some extent, could render [him] unable to actively assist counsel in the preparation of a defense." She concluded his competency was "dependent upon him receiving information from his lawyer re: court procedures."

Dr. Petrick's analysis was not included in Dr. Garcia's report. Although her notes were contained in Mr. Castro's hospital records, they were not submitted to the trial court.⁵ Based on Dr. Garcia's report, the trial court ultimately found Mr. Castro competent to stand trial. However, the court never held a formal competency hearing.

Mr. Castro continued to exhibit bizarre behavior potentially indicative of an unbalanced emotional or psychological state prior to trial. According to the district court:

On July 15, 1983, just prior to being admitted to Eastern State Hospital, the Petitioner began a 3-day fast as a suicide attempt. On July 20, 1983, after his admission to the hospital, the Petitioner made suicide threats. The next day he refused to eat or take medication.

On July 22, 1983 the Petitioner became combative over cigarettes and was placed in four-point restraints. The Petitioner was also administered Vistaril, a drug used for relief of anxiety and tension associated with psychoneurosis. On July 27, 1983 the Petitioner was involved in an escape attempt at Eastern State Hospital, and was again placed in four point restraints, and was given two injections of Thorazine.

Originally, Mr. Castro pled guilty to the charges against him. The trial court conducted a hearing to determine whether Mr. Castro understood those charges, their factual predicate, and that by pleading guilty he would be waiving all his legal defenses. The trial court allowed Mr. Castro to enter the guilty plea, specifically finding him competent to waive his Sixth Amendment right to a jury trial. Subsequently, however, Mr. Castro was allowed to withdraw his guilty plea, and the trial began.

As the case before us unfolds, the nature of the initial request for expert psychiatric assistance becomes critical. From the beginning, Mr. Castro's mental status and the need for him to be examined by a psychiatrist was an issue. Indeed, during the December 14, 1983 pretrial motion hearing, the matter was squarely presented to the trial court. Counsel explained:

COUNSEL: This is a very complex situation requiring a great deal of work on the part of Counsel. You are aware that I am court-appointed in this case. No expense money has been provided with which to pursue the defense of the Defendant. What funds are being used are being expended directly from my own pocket or from my firm as the case may be. We have trial commencing on January 3rd or shortly thereafter. We would like to apply to the Court for some expense money in order to continue the interview of witnesses and the preparation for trial.

You are aware that we arranged for and employed Dr. Hamilton, William Hamilton, to provide a psychiatric evaluation for Mr. Castro.6 He and I discussed the fee situation and I told him that there was none allowed at this time. I think it is an infringement upon the Defendant's rights for us to have to predicate his defense upon the absence of any money whatsoever to pursue his defense. The State has those funds and resources available. I think it's a denial of equal protection under the law. I think it's a denial of his rights under the Federal and State Constitution.

....

THE COURT: I know of no provision to do that, but those matters--and I will deny your Application at this time for the record, but if you feel that there is some relief that might be afforded to you under the statute, then I recommend that you make a written application to the Presiding Judge and let him consider that because those matters--I think he should be the one to rule on those matters, particularly, the way the court fund and the court budget stands at this time.

COUNSEL: I certainly understand that. You do need to know that one attorney turned down the defense of this case because he could not get expense money and Judge Doggett looked into the matter at that time--he being, for the record, the Presiding Judge--and I, therefore, think that the issue will stand with your ruling, Your Honor.

THE COURT: All right.

The record indicates no further pretrial reference to this issue.

However, the issue was again raised during trial. After the jury convicted Mr. Castro and prior to the beginning of the penalty phase, counsel explained his difficulty in presenting a viable defense because of a lack of funds. One issue he explicitly noted was his inability to afford expert psychiatric assistance.

I have earlier made application to Judge Doggett orally as to the necessity of obtaining funds in [sic] which to obtain relevant testimony to that issue of his mental state at the time these acts were, in fact, committed, and the alleged acts were committed. I was told that such funds were not available to me at the time and, in fact, Mr. Royce Hobbs declined acceptance of this case because he was not afforded that also. I certainly do not blame the Court or the system for that; it is just simply a fact. Now, I have gone to the family with requests for money, not attorney fees, but with which to secure medical testimony to develop into what I consider a very crucial statement in which the statement will, likewise, refer to as being somewhat crucial in this proceeding. The family is without funds.... Consequently, we will have a very brief Part 2 proceeding, and I apologized to Mr. Castro and I do to the Court for the situation I find myself in, but the record needs to reflect it.

Next, counsel raised the issue during his closing argument before the jury in the sentencing phase.

We do not know whether John Walter Castro can and will be the beneficiary of psychological treatment, therapy. We do not know what his life holds for him in the future. We do know that each of you with your individual vote does, in fact, hold in your hands a chance for him to benefit from what he has apparently been denied all of his life, a decent opportunity in this life to have a chance to grow up and to be a decent human being. That is not an excuse for the deaths of those two people. I wouldn't say that, and let me tell you, he has said just the opposite. He said that "That is no excuse." Those are direct words. But, you are entitled to know about this person's life. You are entitled to know that he has begged and sought counseling and guidance and psychological testing and you have heard that it was not available to him because the system did not have the money with which it could be provided under the law. You have heard that.

Finally, the expert psychiatric assistance issue was raised during counsel's request for a new trial. As one of his grounds for moving for a new trial, counsel argued:

[A] very significant thing occurred in this case, in my opinion, which was brought to the attention of the Court and which admittedly you had no control over nor did Judge Doggett based upon the statutes, but it is for that reason that I am again raising it. Between the time that Mr. Castro was examined at Vinita and the time that I had him privately examined by Dr. Hamilton, which I advised the State of and the Court, he came to me with an explanation of some difficulties that he was having concerning what happened to him when Mrs. Pappan's death occurred, and I think that perhaps had some influence on the Court in permitting him to withdraw his plea; I don't know about that, but in any event, we sought funds from Judge Doggett who is here at the time we are making these statements concerning the examination of Mr. Castro on the issue of temporary insanity. The Court, under the statute, properly denied those and I discussed it with Your Honor here and you indicated that you had no basis for granting those funds.

Mr. Castro on numerous occasions raised the point with me that he lost awareness of what he was doing and why he was doing it, and was deeply troubled by his own inability at that time to understand himself and his carryings on. I think those issues go to the emotional state of the Defendant at the time and I think it is a sad commentary that we don't have funds available. I surely hope the Court understands that I am not questioning the discretion of the Court in this case. I think you did not have discretion other than to clearly violate the laws of the State and make funds available and then raise issue of whether or not you are acting outside of the scope of authority. But I believe that this was a case in which Mr. Castro was, in fact, at that time under a tremendous amount of pressure. I think the testimony indicated it. I think that crucial time period of his life should have been carefully and professionally reviewed. Inasmuch as it wasn't, we now stand with a man who has been unable to present any testimony in regard to that.

In an affidavit filed as an attachment to Mr. Castro's habeas petition, counsel summarized these events:

Prior to trial, on numerous occasions, I asked the trial judge and the chief administrative judge of the 8th Judicial District, separately on several occasions for authorization for a proper psychological evaluation of Mr. Castro, and for an investigator, to which the State never objected.

Each time the administrative judge (Judge Doggett) would state that it wanted to help me, but was unauthorized to provide the necessary funds. I then went to the trial judge (Mullins) and made the request which was denied. Even though I did hire a child psychiatrist at my own expense, his evaluation of Mr. Castro was very limited, brief and cursory.

Further, the psychiatrist accepted my request to render an informal opinion on condition that he not be called to testify at trial on Mr. Castro's behalf. Consequently, the lack of funds to hire a mental health expert made it impossible for me to adequately present to the jury the full range of Mr. Castro's psychological impairments.

In addition, a substantial amount of evidence about Mr. Castro's mental capacity was discovered after his trial. In preparation of the habeas corpus petition, new counsel asked two expert mental health professionals to examine Mr. Castro. Phillip J. Murphy, Ph.D., a clinical psychologist, conducted a comprehensive psychological and neuropsychological evaluation of the petitioner. Dr. Murphy discovered:

To summarize the psychological assessment findings, Mr. Castro is suffering from a thought disorder of an encapsulated paranoid nature, with both depressive and organic features.

The fact of his having had sexual intercourse with his biological mother when he was in his mid-adolescent years is an event so destructive to a male's mental health that it is unlikely that it was not an important contributor to his thought disorder. The events leading up to the homicide of Ms. Cox provide a template extremely similar to the events prior to incest between Mr. [C]astro and his mother; this understanding completes the analysis by Dr. Caldwell of Mr. Castro's action in the homicide of Ms. Cox.⁷

The triggering stimulus for his having shot Ms. Cox being his view of her bare buttocks translates to his viewing them as his mother's bare buttocks and this completed the incest scenario. The similarity between his second victim, Ms. Pappan, and his mother was his statement that he was frightened of both. His fear of his mother was historic, but his fear of Ms. Pappan was irrational since [she] was already dead.

In addition, the neuropsychological assessment indicated brain damage, which Dr. Murphy described as follows:

Mr. Castro obtained an Impairment Index of .42 on his neuropsychological assessment, which places him in the brain-damaged population. Positive findings for brain damage was a positive Category Test with 81 errors, a positive Trials A deficit, a significant deficit on the LNNB Rhythm test relative to the LNNB Receptive Speech Test, deficient comparator function, and WAIS-R subtest pattern suggestive of right hemisphere deficits.

These findings suggest strongly a right frontal and possibly right temporal brain dysfunction. This type of brain dysfunction is especially predictive of murder.

Finally, Dr. Murphy summarized Mr. Castro's mental health:

Mr. Castro is suffering from a dual-diagnosis disorder. He has had significant psychiatric disability from a paranoid thought disorder, as well as probable organic brain disorder of a right frontal type. This type of set of disorders would both call into question his competency at the time of the trial, and also provide probable mitigating issues to the jury who should have had the opportunity to hear such testimony, especially if it had been explained by competent experts.

Fran St. Peter also examined Mr. Castro.8 Ms. St. Peter specializes in conducting "social history investigation[s]" of capital murder defendants "to explain the defendant's developmental history and the links between that history with the defendant's conduct at the time of the offense."

Ms. St. Peter was critical of Mr. Castro's trial counsel's lack of preparation in establishing mitigation evidence during the sentencing phase of his trial. She concluded a "comprehensive biopsychosocial life history outline or evaluation" was necessary. Such an examination is designed to "detect the presence of significant factors such as neurological impairment; cognitive disabilities; physical, sexual or psychological abuse; substance abuse; mental disorders; or other factors which influence the development of the client's personality and behavior."

Ms. St. Peter identified five issues not raised at trial or sentencing which would have been part of her evaluation. First, the pervasive addiction to drugs and alcohol abuse among members of Mr. Castro's immediate and extended family. Second, the possibility Mr. Castro suffered from Fetal Alcohol Syndrome or Effect. Third, the male role models in Mr. Castro's life set an example of alcoholism and battery toward women. Fourth, Mr. Castro was exposed to and influenced by very aggressive, hostile, domineering women who abused drugs and alcohol. Fifth, Mr. Castro meets the diagnostic classification for Paranoid Personality Disorder. Ms. St. Peter concluded the absence of this kind of evaluation during the penalty phase deprived the jury of the ability to understand Mr. Castro's crime in the context of his entire life. Ms. St. Peter determined:

Events that occurred in John W. Castro's early years would have been directly related to his behaviors in this case by a mitigation specialist. The linking of early life experiences with adult behaviors would have provided each juror a different and broader viewpoint from which to assess the defendant's culpability in this case. The jurors were denied this opportunity as this linking was never explained to them.

The mitigation specialist, as a professional and impartial third party, would tie together the specific incidents of John W. Castro's life and interpret them so as to provide the jurors a cohesive picture of the life that he lived. The jurors never received this picture of John W. Castro's life as no one presented this evidence to them.

II.