On December 22, 2000, a Van Nuys,
California, jury recommended the execution -- for the second time -- of
Robert Bloom Jr., for the murders of his father, stepmother and 8-year-old
Bloom, who looked dazed as he heard the verdict that
concluded his three-month retrial, represented himself after firing his
court-appointed attorneys and dropping his insanity plea.
called Bloom, 37, a sociopath who deserves to die for the 1982 Sun
Valley murders he committed at age 18. "He's evil," said
Deputy Dist. Atty. Dmitry Gorin, recounting how Bloom once stabbed
another inmate in the neck and had threatened prosecutors during the
retrial. "He's a complete danger to society."
Bloom's mother, said he deserved sympathy. "My son's mentally ill
and should be in a mental hospital, not a gas chamber," she said.
"He has double personalities."
Jurors found Bloom guilty of the first-degree
murder of his father, Robert Bloom Sr., and the second-degree murders of
his stepmother, Josephine Lou Bloom, and stepsister, Sandra Hughes.
Bloom's lawyers, before being fired, argued that he had been severely
abused by his father and was insane at the time of the killings.
After firing his attorneys, Bloom told
jurors he had been an award-winning high school mock trial attorney and
that his insanity plea was hogwash. He zealously cross-examined
witnesses, subpoenaed a judge, used legal terminology and made frequent
Bloom told jurors he felt no remorse
for killing his father and called the deaths of his stepmother and
stepsister a "necessary evil." The next time around, he said,
he would be "a better killer."
Jury Again Convicts Man in '82
Los Angeles Times
November 9, 2000
For the second time in two decades, a
jury Wednesday found Robert Bloom Jr. guilty of the 1982 murder of his
father. With the finding of first-degree murder, Bloom, 36, faces a
maximum sentence of 27 years to life in prison.
Bloom is also accused of the first-degree
murders of his stepmother and stepsister during an April 22, 1982,
rampage, and the jury will continue deliberations on those charges today.
132 F.3d 1267
Robert Maurice BLOOM, Petitioner-Appellant,
Arthur CALDERON, Warden; Attorney General of the State of
United States Court of Appeals,
Argued and Submitted Oct. 31, 1997.
Decided Dec. 24, 1997.
Appeal from the United
States District Court for the Central District of California; J. Spencer
Letts, District Judge, Presiding. D.C. No. CV-90-02581-JSL.
Before: REINHARDT, THOMPSON and
HAWKINS, Circuit Judges.
DAVID R. THOMPSON, Circuit Judge:
A jury convicted Robert Maurice
Bloom of three counts of first degree murder and imposed the death
penalty. The state trial court declined to modify the jury's verdict
and sentenced Bloom to death. After exhausting his state court
remedies, Bloom filed his first federal habeas corpus petition in the
district court. The district court denied the petition and Bloom
Bloom argues an actual conflict of
interest adversely affected his state trial counsel's representation,
he received ineffective assistance of counsel during the guilt phase
of his trial, he is entitled to a new penalty phase trial based on his
counsel's alleged ineffective assistance during the guilt phase, and
his jury considered extrinsic evidence during their deliberations in
the penalty phase.
We have jurisdiction pursuant to 28
U.S.C. § 2253, and we reverse. We conclude Bloom received
constitutionally ineffective assistance of counsel during the guilt
phase of his trial. We do not reach his other arguments.
This is yet another case of severe
childhood abuse ending in tragedy. A jury found Bloom guilty of
shooting and killing his father (Robert Bloom, Sr.),
his stepmother (Josephine Lou Bloom), and his eight-year-old
stepsister (Sandra Hughes). Bloom was eighteen years old at the time
of the murders.
The prosecution presented
substantial evidence against Bloom. One witness testified that
approximately a week before the murders Bloom asked him if he could
buy a gun because he was going to kill someone. The witness agreed to
obtain a gun for Bloom but never did so. Another witness testified
that two days before the murders Bloom told his father on the
telephone, "You are running my life now but you won't be for long."
At the time of the murders Bloom was
living with his girlfriend, Christine Waller. She testified that two
days before the murders she observed Bloom walking in a field behind
her house carrying a rifle. Waller's brother owned a .22-caliber
semiautomatic rifle. The rifle was missing after the murders and, to
date, has not been found. The victims were shot with bullets from such
On April 22, 1982, at about 4:00
a.m., David Hughes, who lived next door to Bloom, Sr., heard Bloom,
Sr. shout: "Robert, Robert. Come back." Hughes looked out the window
and saw Bloom, Sr. standing at the end of the driveway. Bloom, Sr.
then ran down the street toward Bloom.
Another witness, Moises Gameros,
testified he then saw Bloom, Sr. and Bloom arguing in the street.
Gameros heard Bloom, Sr. say: "That's it. I'm going to call the police."
Bloom, Sr. and Bloom then returned
to Bloom, Sr.'s house and entered the house. Bloom was carrying a
rifle but was not pointing it at anyone. Minutes later, Hughes heard
shouting. Hughes saw Bloom, Sr. standing in the driveway and heard him
again ask Bloom to come back. Both Hughes and Gameros then heard
popping which they recognized as gunfire.
Bloom, Sr. began screaming, grabbed
his midsection, and ran to his house. Bloom followed Bloom, Sr. and
continued to shoot him. Bloom, Sr. eventually fell on his back in the
doorway. Bloom then stood over him and shot him twice in the head.
Bloom appeared to reload the rifle
before he reentered the house. Hughes heard a woman's scream followed
by two shots. After a short pause, Hughes heard a third shot. Bloom
walked out of the house, placed the rifle in a car belonging to
Josephine, and drove off.
Police officers arrived shortly
thereafter. Bloom, Sr. and Josephine were dead. Sandra was still alive,
but critically wounded. Sandra had been shot in the head and had also
suffered twenty-three "sharp force" stab wounds to her forehead, neck,
right arm, and left back. These wounds apparently were made by
scissors which were located near her body. Sandra died the next day.
Bloom was arrested within an hour
after the murders. He had blood on his hands and shoes. He was not in
possession of a rifle. Although the murder weapon was never found,
there is no dispute that the victims were shot with a .22-caliber
Bloom initially pleaded not guilty
to the three murders. Before trial, he changed his plea to the murder
of Sandra to not guilty by reason of insanity.
At trial, Bloom testified that on
the morning of the murder he took the rifle and chased some "cholos."
He followed them until he was near Bloom, Sr.'s house. He went inside
the house and placed the rifle on a chair. Bloom Sr. and Josephine
were arguing because she wanted a divorce. According to Bloom, Bloom,
Sr. then shot Josephine in the face and, as she was walking toward
Bloom, Bloom, Sr. shot her a second time.
Bloom testified he picked up the
rifle, left the house, and agreed to return only after Bloom, Sr.
agreed to call the police. When they reentered the house, Bloom, Sr.
refused to call the police, Bloom left the house, and, after Bloom,
Sr. made a remark about Sandra, Bloom shot him. Bloom said he did not
remember anything else until he was arrested.
The jury found Bloom guilty of all
three counts of first degree murder. After the jury returned its
verdict, Bloom withdrew his insanity plea and asked the court to let
him represent himself during the penalty phase. He told the court he
intended to ask the jury to return a verdict of death. The court
granted Bloom's request.
During the penalty phase, the
prosecution presented evidence of a prior arrest for attempted robbery
and for concealing a weapon. Bloom presented no mitigating evidence.
In his closing argument, he told the jurors there were no mitigating
circumstances and asked them to impose the death penalty. After four
hours of deliberation, the jury returned a verdict of death.
After the jury's verdict in the
penalty phase, Bloom was involved in a violent jail incident. He was
relieved of his self-representation status and a hearing was held to
determine his competency. A jury found him to be competent. The state
trial court then declined to modify the jury's verdict and sentenced
Bloom to death.
The California Supreme Court
consolidated Bloom's direct appeal with his appeal from the denial of
his first state habeas corpus petition. The California Supreme Court
affirmed Bloom's convictions, his death sentence, and affirmed the
denial of his state habeas petition. People v. Bloom, 48 Cal.3d 1194,
774 P.2d 698, 259 Cal.Rptr. 669 (1989). The United States Supreme
Court denied certiorari. Bloom v. California, 494 U.S. 1039, 110 S.Ct.
1503, 108 L.Ed.2d 638 (1990).
Bloom then filed his first federal
habeas petition. The district court denied the petition, see Bloom v.
Vasquez, 840 F.Supp. 1362 (C.D.Cal.1993), and this appeal followed.
At trial, Bloom's trial counsel
pursued a defense that Bloom did not kill his stepmother, he killed
his father while in a heat of passion after witnessing his father kill
his stepmother, and he was in a "transitory state" when he killed his
stepsister. This is the story Bloom told his counsel, and it is the
story Bloom told when he testified at trial.
Bloom's defense, at least in part,
was based upon his contention that he lacked the necessary mental
capacity for premeditation, malice, and the intent to kill. To support
this defense, Bloom's trial counsel hired Arthur S. Kling, M.D., a
psychiatrist. Bloom argues his counsel's performance was
constitutionally deficient because counsel inexcusably delayed hiring
Dr. Kling until shortly before trial, and then did not provide Dr.
Kling with necessary and available data which Kling requested and
which would have assisted him in his evaluation of Bloom and in his
To prevail on this claim, Bloom
first must establish that his " 'counsel's representation fell below
an objective standard of reasonableness ... considering all the
circumstances ... under prevailing professional norms.' " Harris v.
Wood, 64 F.3d 1432, 1435 (9th Cir.1995) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674
(1984)). He must overcome a "strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Bloom also must establish that
prejudice resulted from the deficient performance. Harris, 64 F.3d at
1435. He must demonstrate "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Strickland, 466
U.S. at 694, 104 S.Ct. at 2068.
As discussed in more detail below,
Bloom's trial counsel did virtually nothing to obtain the services of
Bloom's key witness-the psychiatrist, Dr. Kling-until only a few days
before trial. Counsel then did practically nothing to prepare Dr.
Kling for his examination of Bloom. This resulted in a severely
damaging psychiatric report from Kling, a report the prosecution used
effectively in cross-examining Kling and in closing argument.
A. Preparation and Trial Evidence
Bloom's trial counsel was appointed
on August 5, 1982. In September 1982, counsel moved the state trial
court for the appointment of a psychiatrist to examine Bloom and a
neurologist to conduct an electroencephalogram. On October 7, 1982,
the court granted the motion, and told counsel to "fill out the form.
In November 1982, counsel sought a
postponement of the trial date. The court continued the trial to
January 20, 1983, and then in January continued the trial again. By
March 1983, counsel still had not taken any steps to obtain a
psychiatrist or neurologist, although he informed the court at that
time that he needed a continuance because he was "not through with
psychiatric and clinical testing as well as neurological evaluation."
The trial date was continued again in May and June 1983 because
counsel was involved in civil trials and he represented that this case
was complex and he needed more time to prepare.
In April 1983, counsel obtained an
order directing the sheriff to deliver Bloom to Dr. Sergio Fuenzalida
for a neurological exam. Fuenzalida's report states Bloom "had a
normal developmental history," "there is no basis for brain damage,"
and the electroencephalogram was "normal." The report also states
Bloom said he had been experiencing blackouts since he was nine years
old. The report concludes the "nature" of the blackouts is "more
difficult to determine."
In May 1983, Cathy Drury, a third-year
law student working in counsel's office, drafted the order appointing
Dr. Kling. The appointment order consists of a form in which certain
questions are marked for Kling to answer. The appointment order asked
Kling to give his opinion as to whether, at the time of the murders,
Bloom had the capacity to form specific intent, to deliberate, to
premeditate, to harbor malice, and to meaningfully and maturely
reflect upon the gravity of his acts. At this time, California had
abolished the diminished capacity defense. Cal.Penal Code § 28(a),
Drury drafted the order without any
guidance from counsel. During the evidentiary hearing in the district
court, she testified that counsel was "very rarely available" because
"[h]e often would disappear for hours at a time, and he would go
across the street and be at the bowling alley playing Pac-Man and we'd
have to go get him. And he really wasn't available to discuss matters
with." She testified everyone at the firm was "concerned about [counsel's]
lack of preparation."
After drafting the appointment order,
Drury left counsel's office to study for the Bar examination. After
the Bar examination, she returned. On August 4, 1983, counsel asked
her to contact Kling to ask him when he would have his report
completed. Drury then called Kling, and he told her he "had never
heard of Robert Bloom" and had not been appointed. The order Drury
drafted had not been signed or filed, and the trial was to begin on
August 24. Kling told Drury that, if he were appointed, he would
examine Bloom on August 6 and prepare a report by August 10.
Drury panicked. She wrote counsel a
note stating that she needed to draft a letter to Kling outlining the
theory of defense. She testified before the district court that she
had asked counsel for assistance in preparing the letter because she "didn't
know what the theory of the defense of the case was...." She further
testified that counsel never did discuss the theory of defense with
her. The letter was never written.
Drury's notes reflect that Kling had
asked counsel to provide him with "all relevant data, psychiatric and
social" and "any additional information that might be available from
the social history, family history, medical history." Counsel, however,
did not speak with Kling prior to the Bloom interview, and provided
Kling with only the following documents:
(1) The order of appointment.
(2) The transcript of the preliminary hearing.
(3) A "Make Believe Interview," which appears to be
a school assignment written by Bloom. The interview merely talks about
the use of drugs.
(4) An essay about crime. In this essay, Bloom
states that children from broken homes may be criminally inclined and
that the world is full of hate and violence, which leads to crime.
(5) A letter from Bloom's mother, Melanie Bloom, to
the state trial court, which primarily complains about the performance
of Bloom's counsel during the preliminary hearing.
(6) A document entitled "Things I saw Robert H.
Bloom Do," apparently written by Melanie Bloom. The incidents focus
primarily on Bloom getting into trouble. The incidents listed are not
severe or eccentric. For example, the document states Bloom "smiles a
lot" and "makes very dark dots when he writes a period."
(7) A statement from Melanie Bloom. In this
document, Melanie states she had physical fights with Bloom, Sr.;
hated him; and wanted to kill him. She also states she attempted
suicide, had "grand mal," and referred to a pool incident in which
Bloom almost died. The statement does not mention the physical abuse
suffered by Bloom and makes only confused references to Bloom's mental
(8) Telegrams and letters from Bloom, Sr. to Bloom
while Bloom, Sr. was in jail. The letters consistently state that
Bloom, Sr. loves Bloom and will always be there for him.
(9) A copy of a home economics scholastic award
given to Bloom in high school.
(10) A certificate of honorary discharge.
(11) Dr. Fuenzalida's neurological report.
Kling reviewed the limited materials
provided by counsel and interviewed Bloom for approximately an hour-and-a-half.
In his report issued in August 1983, Kling stated that, during the
interview, Bloom said he killed his father because he learned Bloom,
Sr. was sexually molesting his stepsister, Sandra, and he felt his
father deserved to die. Bloom denied any mental illness and said he
had seen a psychiatrist only once.
Kling then prepared his opinion. It
was devastating. He wrote:
I would speculate that the reason he did kill his
father may not have been because he found out about his father
molesting [Sandra] but because his father would not let him marry or
continue the relationship with [Bloom's girlfriend].
I speculate further that the defendant may have
killed his stepmother and his stepsister, [Sandra], to prevent them
from testifying to the murder....
Most remarkable is his lack of guilt, remorse, or
feelings regarding his act or any of the anti-social behavior he had
been engaged in. He attempts to justify everything he did without
insight or judgment. His verbal ability is excellent and he has
clearly no evidence of intellectual deficiency or cognitive deficit.
Finally, there is no evidence of paranoid thinking or delusions or
disorganized thinking which would have led to a misperception of the
reality that he describes.
Kling also stated in the report his
belief that, at the time of the murders, Bloom had the capacity to
form the specific intent to murder and to deliberate and premeditate.
He also opined that Bloom should not be admitted to a mental facility
and would not benefit from treatment in a mental facility.
Kling followed his report with a
letter written August 17, 1983, regarding the murder of Sandra. In
that letter, Kling stated:
[T]here was no indication of any motive for him to
be responsible for [Sandra's] death except for the possibility that
she was a witness.
[I]t would not seem unlikely, considering the
extent of the injuries of Sandra Hughes and the circumstances
surrounding the event, that the defendant was at the time unable to
control his behavior as well as being unable to know what he was doing
in a rational manner. It is not unlikely that the defendant was in a
state of extreme stress, mental disorganization, and anxiety resulting
from the shooting of [his] father so that the subsequent events
resulting from amnesia would be in keeping with his disorganized
mental state at the time.
During trial, Kling interviewed
Bloom for a second time. After this interview, Kling opined Bloom had
a "schizotypal personality disorder" and, as such, could experience "transient
psychotic episodes" when under extreme stress. During such an episode,
Bloom may suffer amnesia and "might not be aware of what it is [he is]
At trial, Kling was the sole defense
expert witness. On direct examination he testified in accord with his
second report--that Bloom suffered from a "schizotypal personality
disorder" and may experience "transient psychotic episodes." Trial
counsel did not refer to Kling's first report or make any effort to
diffuse it. He simply ignored it.
As might have been expected, on
cross-examination the prosecution focused on Kling's first report. The
prosecution brought out Kling's original opinion that Bloom was sane
at the time of the murders, and that he had the capacity to know and
understand what he was doing, to form the specific intent to murder,
to deliberate and premeditate, to harbor malice, and to meaningfully
and maturely reflect upon the gravity of his acts. This cross-examination
not only negated Dr. Kling's testimony for the defense, it turned that
testimony against Bloom with devastating effect. Then, in closing
argument, the prosecutor returned to Kling's first report. The
prosecutor read parts of the report to the jury and emphasized that
Bloom's "own doctor says he was sane and that he could form the malice
and premeditation and deliberation necessary for murder in the first
degree." And that's what the jury convicted Bloom of, on all three
B. Evidence Presented by Current Counsel
After the death penalty was imposed,
new counsel was appointed to represent Bloom in his post-conviction,
post-sentencing proceedings. His new counsel presented significant
evidence relating to Bloom's mental state at the time of the murders.
Although this evidence was readily available to Bloom's trial counsel,
his trial counsel had failed to provide the information to Dr. Kling
or to any other physician who examined Bloom. The information
discloses that Bloom suffered a long history of severe childhood
abuse. He was born into a family plagued by generations of mental
illness and domestic abuse. Both of Bloom's grandfathers physically
abused their wives and Bloom, Sr. was subject to physical abuse from
his father. Bloom's paternal grandfather was hospitalized "for
episodes described as 'nervous breakdowns.' " There was more.
The marriage of Bloom's parents (Bloom,
Sr. and Melanie) also was severely dysfunctional. Bloom, Sr.
physically abused Melanie, and both Bloom, Sr. and Melanie physically
abused Bloom. The physical abuse began when Bloom was very young. On
one occasion, Melanie threw Bloom across the room when he was a baby.
Melanie also held a gun to Bloom's head for forty-five minutes because
Bloom would not reveal the identity of "Tony," Bloom's imaginary
Melanie divorced Bloom, Sr. when
Bloom was six years old. Bloom was then left in Bloom, Sr.'s care.
Bloom, Sr. physically abused Bloom
throughout Bloom's life. The nature of this abuse is summarized as:[Bloom,
Sr.] initiated an almost ritualized sequence in which he would push,
slap, and punch [Bloom], all the while working himself into an
escalating rage. He would then grab [Bloom] by the hair and yank his
head down, throwing him to the floor. He would then pounce on [Bloom],
who would be lying face down, and push his head into the floor or
carpet. [Bloom, Sr.] would then pound [Bloom] with closed fists all
over his back while screaming obscenities. At various other times [Bloom,
Sr.] used a variety of different objects to beat [Bloom]. There are
specific references, from [Bloom] and contemporary witnesses, of a
telephone and a baseball bat being used.
Bloom suffered from illnesses and
was exposed to medications which could affect his mental state. Since
her birth, Melanie, Bloom's mother, had epilepsy and suffered grand
mal seizures. During her pregnancy with Bloom, Melanie took Dilantin,
which is "a powerful anti-epileptic medication now known to cause
physical malformations and central nervous system damage to infants
exposed prenatally to it."
When Bloom was two years old, he
almost drowned in a swimming pool. He was rushed to a hospital and
pronounced dead on arrival. He was revived after a cardiac injection
At age eleven, Bloom became
chronically ill with a nephrotic kidney condition. He was given "prednisone,
a powerful steroid that often causes psychiatric consequences...."
This medication caused him to develop Cushing Syndrome, which "frequently
leads to psychiatric symptoms that include psychosis and agitation."
In addition to the foregoing,
current counsel presented evidence that within five months before the
murders, a psychiatric report had been prepared which stated Bloom was
in need of inpatient psychiatric care. The report was prepared in
connection with an incident which occurred in November 1981. Bloom had
been arrested for robbery after he attempted to steal a purse from a
woman in a bible study class. He was arrested after police officers
observed him acting strangely. After this 1981 arrest, the state court
appointed Dr. Richard Naham, a psychiatrist, to evaluate Bloom. In his
report, Dr. Naham opines:
(1) The defendant is a potential danger to himself
and to others in the community.
(2) He would benefit from inpatient psychiatric
treatment in a state psychiatric hospital.
(3) He is not presently suitable for outpatient
I recommend that he be committed to a state
psychiatric hospital with adequate security precautions, until such
time as he has improved enough to no longer be a danger to the
community, and has obtained sufficient insight to benefit and
participate meaningfully in outpatient psychiatric treatment. There is
no doubt in my mind that without suitable inpatient psychiatric
treatment he will continue to present an inordinate danger to others.
(Emphasis in original).
Jail records during Bloom's pretrial
and trial incarceration on the murder charges in this case also
evidence the possibility that Bloom was suffering from a mental
illness. Prior to trial, Bloom attempted suicide. The jail medical
records show that he was referred for psychiatric observation and
treatment. A jail psychologist reported that Bloom "experienced
auditory and visual hallucinations and could 'see things in the future.'
" Although easily obtainable, Bloom's trial counsel gathered none of
Bloom's current counsel presented
all of the foregoing information to Dr. Kling and the other physicians
who evaluated Bloom. These physicians, including Dr. Kling, submitted
declarations during the post-conviction, post-sentencing proceedings
in which they opine that Bloom's trial counsel provided insufficient
information. They state that, as a result, the initial evaluations
were inaccurate, and they opine that Bloom suffers from a mental
disease which affected his ability to appreciate the nature of his
acts at the time of the murders. The following summarizes these
Dr. Kling states the documents he
received from Bloom's current counsel were "critical to any reliable
assessment of [Bloom's] mental functioning at the time of the offenses...."
He further states:
I had not been briefed on the mental state issues
that would be raised at [Bloom's] trial. I viewed my original report
as an effort to assess, on the basis of a brief interview, [Bloom's]
ability to stand trial and to formulate a psychiatric diagnosis.
After reviewing the information
provided by Bloom's current counsel, Kling opines:
Mr. Bloom's actions were triggered and governed by
a predictable and intense emotional response to years of abuse and
victimization by his father. Mr. Bloom's actions were not the result
of deliberate reflection, thoughtful judgment, or even remote
consideration of the consequences of his deeds.
[A]t the time he shot his stepmother and shot and
stabbed his stepsister, he was very likely in a state of mental
disorganization. These latter two homicides were surely not the
product of careful thought, reflection, or a weighing of consequences....
Dr. Fuenzalida, the doctor who
performed the neurological evaluation for Bloom's trial, states that
when he agreed to conduct the trial evaluation, he "expected to be
further consulted regarding the purpose of the examination and
provided with information regarding Mr. Bloom and the circumstances of
the crime for which he was charged." He, however, "merely received
notice that [he] had been appointed by the court and that Mr. Bloom
was to be transported to [his] offices for the neurological
examination." Fuenzalida was not "informed of the specific charges or
of the nature of the proceedings" against Bloom and "was never told to
what purpose [his] evaluation was to be used." After reviewing the
documents presented by Bloom's current counsel, Fuenzalida opines:
I believe that the
circumstances surrounding Mr. Bloom's referral to me and my
neurological evaluation led to an incomplete and misleading assessment
of Mr. Bloom's mental status at the time that I examined him.
My neurological evaluation and
preliminary diagnosis should not and may not be read to exclude the
possibility that Mr. Bloom may have had brain damage at the time of my
Indeed, unaware of the purpose of my evaluation, I
assumed--incorrectly--that my services were sought to determine
whether Mr. Bloom suffered from a seizure disorder.
The focus of my evaluation was
skewed because [trial counsel] failed to provide me with background
information relevant to Mr. Bloom's mental functioning.
Because I lacked even rudimentary
information about the purpose of my evaluation and Mr. Bloom's history,
I was forced to rely entirely on Mr. Bloom's self-reporting for this
critical information. Thus, I was unable to tailor my evaluation
accordingly or to interpret accurately the information provided me by
[The information provided by current
counsel] would have provided me with further avenues of inquiry, and
more specifically they would have alerted me that Mr. Bloom's
blackouts were not a result of seizure activity, but rather had
During the trial, other physicians
had examined Bloom and reported on his mental status. After Bloom
entered a plea of insanity, the state trial court appointed Dr. Julian
Kivowitz to examine him. Kivowitz was asked to determine whether Bloom
was sane at the time of the murders and whether he had the capacity to
deliberate, premeditate, and meaningfully reflect upon the gravity of
Kivowitz states that, for his
initial evaluation, he was given only the order of appointment, and at
the time of the initial evaluation he was not even aware that Bloom
had been charged with the murders of his stepmother and stepsister or
that Bloom had entered a plea of not guilty by reason of insanity. He
states the information provided by current counsel was "critically
relevant" to an accurate evaluation. He opines his original evaluation
"was not only irrelevant but also drastically misleading." After
reviewing the information provided by current counsel, Kivowitz
Mr. Bloom's actions on the day of the offense
resulted from overwhelming terror that any reasonable person would
experience if subjected to years of similar abuse as a child.
[F]ollowing the firing of the first shot at his
father, Mr. Bloom was in a transitory dissociative state, and
experiencing an episode of intermittent altered mental state. Thus,
due to his mental impairments and dissociative disorder, Mr. Bloom did
not have the mental capacity to deliberate, to premeditate, to harbor
malice, nor did Mr. Bloom have the mental capacity to meaningfully and
maturely reflect upon the gravity of his contemplated acts.
The state trial court also had
appointed Dr. William Vicary to examine Bloom. After the jury returned
the death sentence, the state trial court appointed Vicary to
determine whether Bloom was competent to be sentenced. At that time,
Vicary opined Bloom was competent.
Prior to his examination of Bloom,
Vicary was given only a copy of the transcript of the preliminary
hearing. In a declaration submitted during the post-conviction
proceedings, Vicary explains he and his staff tried to contact trial
counsel prior to the examination to gain "relevant background
information" on Bloom. Vicary states:
After I informed [trial counsel's] office that the
clerk of the court had contacted my office and had informed me that
the court desired Mr. Bloom to be examined regardless of whether I
received any information about the case, I received a copy of the
preliminary hearing. [Trial counsel's] office provided me with no
other documents or records or any information regarding the
relationship that [trial counsel] had with his client or accounts of
his client's behavior.
Vicary reviewed the information
provided by Bloom's current counsel and states this information "is
material that I should have been provided prior to my evaluation of Mr.
Bloom in 1984." After reviewing this information, Vicary opines: "Mr.
Bloom's family, social, and medical history offers compelling evidence
that he suffers from serious mental disorders and brain damage."
Vicary states that, had he been provided with this information at the
time of his original evaluation, he would have altered his conclusions.
In his most recent declaration, Vicary opines:
At the time of the offenses for which Mr. Bloom has
been convicted, sufficient data existed to show that his actions were
the result of an explosive outburst that was precipitated by his deep
terror and resentment of his father. Any reasonable person in a
similar situation would react similarly. He had no plan to harm his
stepmother or stepsister.
Also, during the post-conviction
proceedings, Dr. Dale Watson, a psychologist, evaluated Bloom with a
comprehensive neuropsychological test battery. Watson describes
Bloom's abnormal behavior and opines: "The neuropsychological battery
gave striking, consistent and clear evidence of cognitive sensori-motor
deficits, brain dysfunction and brain damage." (Emphasis in original).
He further opines "this brain damage is long-standing and pre-dates
the instant offenses."
Finally, Esther Horney, a social
worker, submitted a declaration during the post-conviction proceedings.
Horney worked with Bloom when he was awaiting trial. Based on Bloom's
"erratic behavior," Horney believed Bloom had been subject to "severe
trauma." Horney states she became aware of Bloom's "clinical mental
instability" after the first few sessions. She states that on "several
occasions ... [Bloom] had incredibly intense outbursts.... He lost
control of his body, became contorted, and screamed at the top of his
lungs." Horney tried to get psychiatric help or a psychiatric
evaluation to no avail. She also attempted to contact Bloom's trial
counsel but was unable to. She states:
I was appalled by [trial counsel's] behavior in
this case. Soon after my first visit with [Bloom], I began to try to
get in touch with [trial counsel] to inform him about [Bloom's] mental
problems. I continued to try to contact [trial counsel] on a weekly
basis until I retired.
The complete lack of effort by
Bloom's trial counsel to obtain a psychiatric expert until days before
trial, combined with counsel's failure to adequately prepare his
expert and then present him as a trial witness, was constitutionally
deficient performance. Counsel left the responsibility of obtaining
and preparing this key witness to a third-year law student who, due to
counsel's lack of diligence, had no idea what defense theory counsel
intended to pursue. Because counsel did not acquire the services of
this key witness until days before trial, a hurried and inaccurate
report resulted. Presenting the witness at trial was a disaster. "Describing
[counsel's] conduct as 'strategic' strips that term of all substance."
Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994).
The district court found that the
defense expert, Dr. Kling, had not requested any background
information on Bloom and determined that, in the absence of a request,
counsel was under no obligation to provide the expert with background
It is true that counsel does not
have a duty "to acquire sufficient background material on which an
expert can base reliable psychiatric conclusions, independent of any
request for information from an expert...." Hendricks v. Calderon, 70
F.3d 1032, 1038 (9th Cir.1995), cert. denied, 488 U.S. 900, 109 S.Ct.
247, 102 L.Ed.2d 236 (1988). The record, however, does not support the
district court's finding that Kling did not request background
information on Bloom.
For its finding, the district court
relied on the testimony of Bloom's counsel. During the evidentiary
hearing, counsel consistently responded that he could not recall
details about his representation of Bloom. When asked whether Kling
had requested any materials, counsel responded, "I can't remember."
Counsel did not testify that Kling did not request information.
Rather than supporting a finding
that Kling did not request information, the testimony of Bloom's trial
counsel supports a finding that such a request was made. When asked
during the evidentiary hearing whether his "office" provided Kling
with any materials prior to Kling's first examination, counsel
responded that he believed a first-year law student
who was working in his office gave Kling some documents. During his
deposition, counsel also testified:
Q: When Doctor Kling received his order appointing
him to examine Bloom, did he ask for some specific materials?
A: I think he asked for prelim., some preliminary
materials, and I can't recall what it was, sir....
Q: At that time did he ask you for that materials
Q: At some point he conveyed to you a desire to
have some certain materials?
Kling and Drury, the law student who
drafted the appointment order, testified that Kling requested
background information. Drury testified Kling told her he "wanted a
copy of the preliminary hearing, he wanted a copy of the police report,
and he wanted a copy of all relevant data, psychiatric and social." A
copy of a note written by Drury after this conversation confirms that
Kling asked for "relevant data (psychiatric & social)." Kling
testified that he requested "[n]europsychological tests" and "any
additional information that might be available from the social history,
family history, medical history."
The district court's finding that
Kling did not request any information or documents is clearly
erroneous. Kling requested information and a number of relevant
documents, all of which were available and could have been provided,
but were not. Bloom's trial counsel either had significant evidence
relating to Bloom's mental state at the time of the murders, or he
easily could have obtained that evidence. He had evidence that Bloom
had suffered systematic abuse from childhood. He easily could have
obtained the Naham report which stated Bloom was in need of inpatient
psychiatric care. That report was prepared only months before the
murders. Further, trial counsel never consulted Bloom's jail medical
records, which were readily available. These records indicated Bloom
had attempted suicide and was suffering from hallucinations.
We recognize that counsel should not
be faulted for failing " 'to track down every record that might
possibly relate to [the defendant's] mental health.' " Hendricks, 70
F.3d at 1038 (quoting Card v. Dugger, 911 F.2d 1494, 1512 (11th
Cir.1990)). However, when the defense's only expert requests relevant
information which is readily available, counsel inexplicably does not
even attempt to provide it, and counsel then presents the expert's
flawed testimony at trial, counsel's performance is deficient.
Trial counsel's deficient
performance prejudiced Bloom during the trial phase of his case.
Prejudice in this context is prejudice which "undermine[s] confidence
in the outcome" of the trial. See Strickland, 466 U.S. at 694, 104
S.Ct. at 2068.
Counsel's theory of defense rested,
at least in part, on a psychiatric defense. Indeed, during closing
argument, trial counsel emphasized to the jury that Bloom suffered
from a mental defect. Even the third-year law student knew the defense
needed a psychiatric expert witness. That witness was to be Dr. Kling.
As a result of trial counsel's woefully deficient performance, however,
Dr. Kling was not provided with sufficient information and, as a
result, his testimony not only failed to help the defense, it
significantly hindered it. Kling's report (which he now acknowledges
was inaccurate) permitted the prosecution to turn Kling's trial
testimony against Bloom, and it gave the prosecution the ammunition it
needed to secure guilty verdicts of first degree murder with special
circumstances on all three counts.
The state contends that given the
fanciful story Bloom told, and to which he testified at trial,
evidence of Bloom's mental capacity would have undercut the theory of
defense his trial counsel was stuck with. Thus, trial counsel's
failure to provide his expert, Dr. Kling, with available relevant
information made no difference because at best Dr. Kling would have
testified to Bloom's lack of mental capacity which would have
suggested to the jury that Bloom's testimony was not credible. The
district court accepted this argument. We reject it.
Although trial counsel presented the
defense which Bloom apparently wanted, and to which he testified at
trial, trial counsel put in issue Bloom's mental capacity to
premeditate, to intend to kill, and to act with malice. Trial counsel
did this through the testimony of the defense expert, Dr. Kling. Once
counsel presented that expert testimony, the case then focused on
Bloom's mental state at the time of the murders. Kling provided this
focus. What evolved was expert testimony based on Kling's ill-prepared
report which the prosecution was then able to use against Bloom.
We are satisfied that had it not
been for the deficient performance of Bloom's trial counsel, there is
a "reasonable probability" that the verdicts "would have been
different." See id. Bloom has demonstrated he received ineffective
assistance of trial counsel to his prejudice in violation of the Sixth
Because we reverse on the ground of
constitutionally ineffective assistance of trial counsel, we do not
reach the merits of Bloom's other arguments.
We reverse the district court's
denial of Bloom's habeas petition and remand this case to the district
court with instructions to grant the writ unless the State retries
Bloom within a reasonable time.