PLEASE NOTE - The following is an excerpt from the petition filed in Federal District Court on behalf of Christopher Simmons.

Petitioner retained attorney Arthur Margulis to represent him at trial. When it became apparent that Christopher was not going to enter a guilty plea, Mr. Margulis handed the case to two of his associates, David Crosby and Michael Burton. Mr. Crosby was responsible for the guilt phase of the trial, and Mr. Burton handled the penalty phase.

Trial counsel's ineffectiveness includes, but is not limited to, the following:

(1) Counsel failed to adequately investigate and preserve evidence which would have demonstrated that the mitigating factors in this case far outweighed the aggravating circumstances. Counsel never developed a social history of Christopher's life before making their decision as to what evidence to present in the penalty phase (H.Tr. 357-358, 693-694, 751, 756, 772). Instead, counsel hired Dr. Daniel Cuneo, a psychologist, to do a mental status evaluation of Christopher and develop any other mitigating circumstances that may exist (H.Tr. 751-752). However, Dr. Cuneo was not aware that he was expected to develop a social history, and instead relied on the attorneys to provide him any background information (H.Tr. 700-713, 722-723, 745-746). The result of this apparent miscommunication was that each party thought the other was developing the social history and no social history was ever prepared (H.Tr. 357-358, 693-694, 751, 756, 772). It was impossible for counsel to make an informed decision as to the theory of the penalty phase without even knowing what information existed for counsel to choose from to present.

(2) Counsel failed to enlist the services of a mitigation investigator who was trained in doing in depth interviewing and in developing a list of potential mitigation witnesses. In proceeding without a social history or the benefit of a trained interviewer, counsel was forced to rely on what little information they personally gathered through very superficial interviews with what should have been only the starting point on a list of witnesses. Counsel received some information that Christopher had been raised by an alcoholic stepfather who constantly abused Chris both physically and mentally (H.Tr. 371, 375, 436, 689, 754). Counsel's reaction was to ask Chris (the abused), his mother, Cheryl Hayes (wife of the abuser), and Bob Hayes (the abuser) about these allegations. Not surprisingly, these parties denied the abuse (H.Tr. 372, 387, 769, 772-773). Counsel's reaction was to rely on the information from Chris and his mother, to not do any further investigation on these claims, and to shut out anyone who wanted to talk about such information (H.Tr. 43, 46, 48, 365-366, 375-376, 385-386, 414, 436, M.L.F. 249-251, 272-273).

(3) The testimony of Marie Clark, who holds a master's degree in clinical psychology, at the state post-conviction hearing confirms the flaw in counsel's failure to do further investigation. Ms. Clark completed a social history of Christopher, which included a review of all available records and interviews of Chris, his friends, associates, neighbors, and relatives (H.Tr. 584-58). Based on her experience, she did not believe Cheryl Hayes when Cheryl initially denied that Chris was abused (H.Tr. 588). Her persistency in interviewing the Hayes family, and motivation in going outside of the family to obtain more information, confirmed her hunch. She learned that the abuse had in fact occurred and that Chris had significant alcohol and drug problems (H.Tr. 588-590, 593-595). Marie Clark admitted that there were several friends of Chris' that, due to their unavailability under her time constraints, she was not able to interview, evidencing that even a somewhat limited social history was quick to reveal the abuse Chris endured and the effect that drugs and alcohol had on his life (H.Tr. 632-633).

(4) Counsel failed to present any substantial evidence in mitigation on Christopher's behalf at the sentencing hearing, despite a wealth of available witnesses and information that would have become apparent with minimal investigation. As demonstrated at the state post-conviction hearing, there are numerous witnesses who knew about Chris' traumatic childhood and who would have been willing to appear at the trial and provide the jury with an intimate look at this child who had grown up for the first three years of his life under the care of an alcoholic grandmother and mentally disturbed aunt; was taken into bars with his stepfather and given alcohol as a toddler; was tied to a tree, kicked, beaten and threatened by his stepfather; was emotionally abused by his stepfather; and who himself abused drugs and alcohol and suffered from mental illness. The jury never heard this evidence because trial counsel never interviewed these witnesses sufficiently enough to gain this information and in many cases, didn't identify or interview the witnesses at all.

(5) Specifically, the evidence which was available and presented at the state post-conviction relief hearing painted a drastically different and more complete picture of who Christopher Simmons was and is than the jury saw. Theresa Vining, a long time neighbor of Chris', testified that when Chris was between four and six years old she heard Bob Hayes yelling inside the Hayes house. She then heard a loud smack and a painful scream come from Chris. She witnessed Chris running down the street, looking scared, and saw Bob Hayes screaming for him to come back (H.Tr. 225-226, 242). She witnessed a similar event when Christopher was ten or eleven, and had heard several other stories of abuse from her mother and others (H.Tr. 227, 237). Theresa also testified that she had observed Chris drinking when he was fourteen or fifteen and had seen him drunk on at least two occasions. She saw Chris smoking marijuana several times (H.Tr. 228-229). Chris' trial attorneys never interviewed Ms. Vining, who would have willingly testified at trial (H.Tr. 229-230).

(6) Christina Koehler is Theresa Vining's sister, and a former neighbor of Chris' for sixteen years (H.Tr. 245). Ms. Koehler testified that she would hang out with Chris in the circle in front of her house and observe Chris drinking Jack Daniels and Southern Comfort and smoking marijuana at the age of thirteen to fourteen years old. She observed him drunk a number of times (H.Tr. 247-248). She also observed several interactions between Chris and his stepfather beginning when Chris was approximately fourteen. On several occasions she observed Bob Hayes pulling Chris by the ear very roughly into the car or the house (H.Tr. 249-250). She also observed Bob screaming and yelling at Chris. Chris appeared frightened at these times and told Christina that he was afraid of Bob (H.Tr. 250). No one for the defense ever contacted Ms. Koehler, who was willing to testify at trial (H.Tr. 252).

(7) Christie Brooks testified during the penalty phase of Chris' trial. Her testimony took up four pages of the trial transcript (T.Tr. 1108-1111). She stated that she turned to Chris when her boyfriend was abusing her. She also told of a time that she, Chris and Charlie decorated an older woman's house for Christmas and brought her food and presents because she was alone. What she was not asked to tell the jury was that Chris had these good characteristics despite his tumultuous upbringing and drug and alcohol abuse. Ms. Brooks relayed this information at the state post-conviction relief hearing. She testified that she drank alcohol with Chris two to three times per week, at least, and that Chris was intoxicated two to three times per week (H.Tr. 262-266). There were times that Chris would skip school one to three times per week to drink alcohol (H.Tr. 268-269). Christie also observed Chris smoking marijuana four to five times a week, often on the way to school (H.Tr. 268). Christie also observed the relationship Chris had with his stepfather. She testified that he yelled and screamed at Chris on a daily basis. He called Chris all kinds of names, including son of a bitch, stupid and worthless, he told Chris he could never do anything right. Christie could hear these things from inside the Hayes' house (H.Tr. 270-271, 276). Chris reacted by getting very upset and embarrassed, crying, and sobbing (H.Tr. 271). Christie also witnessed that Mr. Hayes treated his biological children very different than Chris. They were never punished, yelled at, or made to do chores like Chris was (H.Tr. 275-277). Christie also witnessed the physical abuse. She saw Mr. Hayes hit Chris in the ear so hard that the blood from his ear was running down his neck. She later learned his eardrum had been broken (H.Tr. 272, 291). Ms. Brooks also witnessed a rusty, three to four inch long, nail go deep into Chris' foot while he was scraping paint off of the house. Chris was clearly in pain. In response to his yelling, Bob Hayes came out of the house and told Chris to put a band-aid on it and go back to work (H.Tr. 278, 305). During the four to six times that Christie talked to trial counsel, she was never asked about physical or mental abuse that Chris had suffered from his parents or about Chris' drug and alcohol use. She would have been willing to testify about these things at trial had she been asked (H.Tr. 279-280).

(8) Corey Brown "hung out" with Chris frequently for only a year and witnessed plenty of the abuse Chris suffered at home. Every time Corey was at the Hayes' house he witnessed Bob Hayes threatening Chris, screaming and yelling at him, telling Chris he was irresponsible. He once observed Bob get out of his chair and try to kick Chris (H.Tr. 311-312). Chris was scared of his stepfather. He would often run away from home and stay at Corey's house due to his family problems. Corey's mom called the Hayes' house on one of these occasions, but the Hayeses never called back or came to check on Chris (H.Tr. 312-315). Corey drank alcohol and did drugs with Chris on almost a daily basis. They often skipped school to do this. They smoked pot every day. Corey has seen Chris drunk about a hundred times (H.Tr. 316-317, 320). They also did cocaine together on one occasion and took acid and mushrooms a couple of times (H.Tr. 319). Corey was never contacted by trial counsel. In fact, Corey called David Crosby to volunteer what information he had and indicate his willingness to testify. Mr. Crosby never returned his call (H.Tr. 323-324).

(9) Christina Brown is Corey Brown's mother. Ms. Brown testified for five pages during the penalty phase of the trial (H.Tr. 1104-1108). In response to defense counsel's questioning, she began by telling the jury what a good neighbor the victim, Mrs. Crook, had been (H.Tr. 1105). She then testified that she had a close relationship with Chris and she considered him more special than most of the kids because he would always keep her house clean and help calm Corey down when Corey and his mother argued (H.Tr. 1105-1108). Ms. Brown was not asked for the rest of the story until the state post-conviction hearing. There she testified that Chris stayed at her house a lot when he ran away from home, which was two to three times per month. She would contact Bob and Cheryl Hayes when Chris stayed with her, but they never contacted her or came to see about Chris in response to her calls (H.Tr. 343-344). Chris was very, very upset, angry, and crying when he ran away from home. He was worried what would happen if he went back. Chris did not feel safe in his own home (H.Tr. 344-345, 354). Ms. Brown was never asked about Chris' situation at home by the trial attorneys. She was willing to testify to this information had she been asked (H.Tr. 346-347).

(10) Christopher's natural father, Dennis Simmons, testified during the sentencing phase of the trial. Mr. Simmons' testimony went on for four pages of transcript (T.Tr. 1112-1115). He testified that he and Chris' mom were separated at the time of Chris' birth but that he has maintained contact with Chris over the years and since Chris has been in jail. Mr. Simmons' two sons by his current wife look up to Chris and he believes Chris is a good influence on them. In reality, Dennis Simmons has a much greater insight into his son's life and upbringing than he was asked about at trial or at any time prior to trial. If he had been thoroughly interviewed by a member of the defense team, trial counsel would have discovered an extremely strained relationship between the Simmonses and the Hayeses that undoubtedly affected Chris deeply. Cheryl Hayes made it very difficult for Dennis to be involved in his son's life by not telling him where Chris' sporting events were that Dennis wanted to attend. Dennis would have screaming matches with Bob Hayes over Hayes' obsession with constantly squeezing Chris' acne until it bled. Dennis would buy clothing for Chris when he came for weekend visits but quickly learned not to let Chris take the clothing home or he would come back for the next visit with the new clothes being dirty and unpresentable. Recognizing the problems in the Hayes' household, Dennis had tried to get Chris to come live with him shortly before the offense. However, Chris, not wanting to leave his mother alone with Bob Hayes, refused. Trial counsel essentially failed to investigate their client's own father. This is not a case where counsel had this information and elected not to use it; in fact, Mr. Simmons was interviewed only over the phone and only on one occasion.

(11) Christopher's natural mother, Cheryl Hayes, also testified briefly at the penalty phase of Chris' trial (T.Tr. 1099-1104). She testified that she and Chris have a loving relationship and that Chris loved his brothers. She talked about Chris caring for his sick grandmother. Ms. Hayes stated that the family visits Chris every week and will continue to have as much contact as possible with him. Obviously, Cheryl Hayes has much more insight into her son's life than was ever portrayed to the jury. No member of the defense team took the time to develop Cheryl's trust and interview her on these issues. Cheryl admits openly that she was intimidated and fearful of Bob Hayes. She questions why she was never able to step in to stop Bob's rages against Chris. Instead, she stood by passively and did nothing when Mr. Hayes would chase Chris outside of the home, when he would hit Chris, and when he would hold him on the floor and squeeze his acne until it bled (H.Tr. 79). She recognizes Bob did not treat Chris right. What better person to give a recounting of this than the mother that lived under the same roof as the abuse? Trial counsel claims that Ms. Hayes denied the abuse (H.Tr. 372-373, 773). Interestingly, she consented to psychological testing and admitted the abuse to trained investigators working on behalf of state post-conviction counsel and those working on behalf of Chris' current attorneys (H.Tr. 78-80).

(12) Trial counsel failed to investigate witness Maria Osborn, Chris' maternal aunt, despite her attempts to force them to talk with her. Maria Osborn brought many of the family skeletons to the attention of trial counsel. However, her concerns about Chris' family situation and in particular Mr. Hayes' abuse, were ignored and not pursued by trial counsel because they didn't fit in with counsel's uninformed decision to present Chris as nothing more than "a good kid" (H.Tr. 370-371, 774). Ms. Osborn, who has suffered from mental illness throughout her life, essentially raised Chris, along with Ms. Osborn's alcoholic mother, for the first two years of his life (M.L.F. 319, H.Tr. 596-597). Counsel failed to obtain Ms. Osborn's mental health records, despite her willingness to provide them. While these records would not show that Ms. Osborn was incompetent or psychotic, they are very important in light of Chris' diagnosis of schzotypal personality disorder, which can have some hereditary origins (H.Tr. 187-189, 592). Ms. Osborne could have testified at trial as to the conditions of Chris' childhood. She witnessed the Hayeses give Chris alcohol at their wedding when Chris was a young child. Maria had to take Chris home early because the alcohol made him sleepy and unable to walk. She views Chris' role in the Hayes' family as a "slave." Maria lived with the Hayeses when Chris was a small child. Chris lived in the basement, which Maria noted had mice. She has witnessed the family setting inappropriate priorities, such as buying movies and excessive Christmas lights but not paying their utility bills. At the age of fifteen, Chris talked to Maria about not having a reason to live. All of this information corroborated the picture of this family that other friends and relatives would have painted. Trial counsel's failure to take this information seriously and investigate Maria's allegations deprived Chris of even the possibility of presenting pertinent mitigating factors.

(13) Trial counsel failed to investigate Chris' stepfather, Bob Hayes. While it is unlikely that counsel themselves would have gotten far with a man like Bob Hayes, if they had allowed Dr. Cuneo to keep his plan to interview Bob (H.Tr. 741), the results would have been those obtained by Dr. Smith and Marie Clark at the post-conviction stage, and the jury could have heard much of this compelling evidence from the horse's mouth. Dr. Smith describes Bob Hayes as "extremely candid" (H.Tr. 111). Bob admits his heavy drinking and quick temper. He acknowledges that his relationship with Cheryl had not been good for years and that he was not a responsible father to Chris. He admits

"that he did inappropriate things by taking [Chris] to the bar, by tying him to a tree, by yelling and screaming at him, by chasing him out of the house, by threatening him to the point that he would go and stay with his friends, by physically abusing him by holding him down and the obsession with the acne."

(H.Tr. 111-112). Bob Hayes admitted this same information to Marie Clark after several months of interviewing him (H.Tr. 589-590). Again, trial counsel did not have this information and elect not to use it, they never investigated to obtain the information.

(14) Trial counsel failed to investigate Chris' stepmom, Beth Simmons. Beth tried to be a part of Chris' life and was able to make several observations on Chris' childhood, yet she was never interviewed. When Chris would come to spend time with the Simmons' family she would take him to the doctor because she felt the Hayeses did not do this regularly. She also attended parent/teacher conferences that the Hayeses would not attend. Beth was concerned because Chris would be left alone to babysit his half-brothers at a very young age. She would call the house at ten o'clock at night when Chris was a teenager and the Hayeses would not know where Chris was. To remedy this unacceptable home environment, the Simmonses offered to have Chris come live with them and volunteered to continue to pay Cheryl the child support. The Hayeses rejected this offer.

(15) Trial counsel failed to conduct an adequate investigation into Christopher's psychological makeup and mental illness, despite being aware that Chris most likely suffered from a mental illness. Trial counsel failed to put on any evidence of the mental illness or any of the effects that Chris' traumatic childhood had on his development and personality. Although counsel hired Dr. Daniel Cuneo to do an evaluation, the evaluation was abandoned before any real conclusions could be drawn. Dr. Cuneo had not uncovered any evidence about the physical abuse Chris suffered and was unaware of the frequency of Chris' drug and alcohol abuse (H.Tr. 700-701, 703-704, 705-708). The only parent he had talked to was Chris' mom, and that interview took place over the phone (H.Tr. 729). Even in the absence of any social history, Dr. Cuneo suspected that Chris had been abused and that he suffered from a mental illness (H.Tr. 759-60). After his initial oral report to counsel, further efforts on Chris' behalf were abandoned. Dr. Cuneo admits that his evaluation was incomplete and that information regarding childhood abuse, drug and alcohol use, and threats towards Chris by Brian Moomey was important and necessary for his evaluation (H.Tr. 700-701, 703-704, 712-713, 722, 745-746, 747). He testified at the post-conviction hearing that "after exploring Mr. Simmons' relationship with such significant others, [he] would need to reanalyze [his] test results and in all likelihood conduct further tests" (H.Tr. 50, 394-396, 677; M.L.F. 296).

(16) Had trial counsel continued with Dr. Cuneo's evaluation, they would have discovered compelling evidence for use in mitigation. This became apparent at the state post-conviction relief hearing. Dr. Robert Smith, a clinical psychologist, testified that he did a thorough evaluation of Christopher and concluded that Chris suffered from schizotypal personality disorder and from drug and alcohol abuse. Dr. Smith reviewed school records, the presentence investigation, trial attorney's notes with potential witnesses, the trial judge report, affidavits and memoranda of interviews of family, friends, and neighbors who provided background information about Christopher, a social history prepared by Marie Clark, police records, and jail records (H.Tr. 40-42, 42-55). Dr. Smith also interviewed Christopher and his mother and stepfather, and conducted personality testing on the mother and stepfather (H.Tr. 55-56). He reviewed psychological tests performed on Chris by Dr. Cuneo and Dr. Cowan and conducted his own evaluation on the issue of alcohol and drug abuse (H.Tr. 55-56).

(17) Through his extensive evaluation, Dr. Smith was able to develop a picture of Chris the jury never saw. Chris was cautious, suspicious and unable to trust others (H.Tr. 128). He learned to be distant and appeared cold as a defense to being hurt and threatened (H.Tr. 128). He was insecure and depressed and felt hopeless (H.Tr. 129-130). In his abusive environment, Christopher was unable to express anger, instead he kept it inside and resentment built (H.Tr. 134-135). He was not taught how to control his impulses, and in fact, he learned the opposite from Bob Hayes (H.Tr. 136-38). He expressed odd beliefs and magical thinking and used these fantasies, along with drugs and alcohol, to escape (H.Tr. 181-182). The psychological effects of growing up in this alcoholic and abusive environment provide compelling mitigating factors when a jury is asked to consider why a seventeen year old would commit this murder.

(18) Trial counsel failed to uncover the adverse psychological effects of the Hayes' inadequate parenting. Dr. Smith was able to testify extensively as to how Cheryl Hayes' passive and dependent personality interacted with the maladjusted, immature, self-indulgent and hostile personality exhibited by her husband Bob Hayes. This prevented Cheryl from protecting Chris when Bob Hayes abused him, and produced a child who felt unloved, not worthwhile and not valuable (H.Tr. 98-99). Bob Hayes was so consumed by his own needs and views that he could not nurture or support others (H.Tr. 108). Chris was simply an extra burden for Hayes and became the outlet for his anger and frustration (H.Tr. 109-110). This abuse and neglect by Hayes was exacerbated by his alcoholism, which caused him to be unpredictable, irresponsible, and more threatening to Chris (H.Tr. 115-116).

(19) trial counsel was ineffective for failing to investigate state's witness Brian Moomey, his involvement in this offense, and the threats he made to Christopher and his family after the offense. Several sources suggested that Moomey was involved in the offense (H.Tr. 50). Following Chris' arrest and during his trial, Chris and the Hayeses were aware that Moomey had threatened the family. He began sitting in the car across from the Hayes' home, stalking the family. The Hayeses heard rumors that Moomey would hurt the family if Chris implicated him in the murder (M.L.F. 336, H.Tr. 50-51, 323, 522, 556). Bob Hayes would start his wife's car in the morning for fear that it would explode (M.L.F. 336). The Hayeses had neighbors, including Corey Brown, take the Hayes children, Kenny and Billy, to the bus stop and keep an eye on them until they were safely on the bus (H.Tr. 322-323, 345). The family feared that Moomey might hurt any of them to silence Chris. Although the entire Hayes family, as well as Corey and Christine Brown, was aware of these threats, trial counsel never investigated the rumors and information or put on any witness to testify about the threats or about Moomey's potential involvement in the crime. Such evidence, combined with the psychological assessment that Chris was vulnerable, impressionable, and easily led by others (H.Tr. 183), would have supported the statutory mitigating circumstance in Missouri for acts committed under duress.

(20) Counsel were ineffective for failing to conduct any meaningful mitigation investigation. This is not a case where counsel had the information and chose not to use it. This is a case where counsel was put on notice of the information and chose not to investigate it and in fact to ignore it (H.Tr. 371, 375, 436, 689, 754). Several witnesses called or visited trial counsel, volunteering information about the abuse (H.Tr. 43, 48, 365-366, 385-386, 436, M.L.F. 249-251, 272-273). Six months before the trial, Pat Cates called counsel with evidence that Chris had been beaten (H.Tr. 4, 385-386, 436, M.L.F. 272-273). Counsel ignored her. Three months later, Dawn Smith called and volunteered that Bob Hayes did not like Chris, that he mistreated Chris, and that he treated his biological children much better (H.Tr. 43, 365-366, M.L.F. 249-251). Trial counsel David Crosby testified that if he had known about the childhood abuse he would have considered presenting that evidence as mitigation (H.Tr. 377, 690). He also admitted that he wanted to present evidence of alcohol and drug abuse (H.Tr. 425). Clearly, the overwhelming amount of evidence presented at the state post-conviction relief hearing shows that had counsel done an adequate investigation, the amount of mitigation evidence presented would have outweighed the aggravating factors in the mind of any reasonable juror.

(21) Counsel failed to make an opening statement to the jury at the guilt /innocence stage or at the sentencing hearing (T.Tr. 677, 1071, 1095). In contrast, the state's opening statement in the guilt /innocence stage outlined with specificity the facts the state believed supported a guilty verdict, including Chris' confession. Defense counsel offered no explanation or theory to rebut what the state put forth. At the sentencing phase, the state set out the aggravating circumstances and how they would be proved. The prosecutor told the jury they would hear about this loss and its impact on the victim's family. Defense counsel did not counter with an offer of any mitigating circumstances or any explanation of how the evidence might show that Chris deserved a punishment other than death. Chris was prejudiced by his counsel's failure to ever put forth a theory that may exculpate him or mitigate the punishment in that this omission allowed the jury to accept the state's version of things at the beginning of each stage of the trial as being uncontroverted.

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