Argued: September 25, 2018
from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Timothy Patrick Kane, FEDERAL COMMUNITY DEFENDER OFFICE FOR
EASTERN DISTRICT OF PENNSYLVANIA, Philadelphia, Pennsylvania,
Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellee.
Adjoian, FEDERAL COMMUNITY DEFENDER OFFICE FOR EASTERN
DISTRICT OF PENNSYLVANIA, Philadelphia, Pennsylvania; Emily
Munn, BISCHOFF MARTINGALE, P.C., Norfolk, Virginia, for
R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF VIRGINIA, Richmond, Virginia, for Appellee.
MOTZ, DUNCAN, and THACKER, Circuit Judges.
THACKER, CIRCUIT JUDGE
Virginia state court sentenced Mark Eric Lawlor to death
after his conviction for the capital murder of Genevieve
Orange. In recommending the death sentence, the sentencing
jury found that there was a probability Lawlor "would
commit criminal acts of violence that would constitute a
continuing serious threat to society." Va. Code Ann.
§ 19.2-264.4.C. Lawlor exhausted state court direct
appeal and post-conviction remedies. He then filed the
instant federal petition for review of his death sentence
pursuant to 28 U.S.C. § 2254, raising 18 claims. The
district court dismissed his petition, and Lawlor appealed.
granted a certificate of appealability on three issues raised
in the federal petition, including whether it was
constitutional error for the trial court to exclude expert
testimony about Lawlor's risk of future violence in
prison. Specifically, the state court excluded specialized
and relevant testimony of a qualified witness who would have
explained that Lawlor "represents a very low risk for
committing acts of violence while incarcerated," J.A.
1070,  where the jury's only choices were
life in prison without parole ("LWOP") or death.
fully explained below, we conclude that the state court's
exclusion of the expert's testimony was an unreasonable
application of clearly established federal law. It is well
established that "evidence that the defendant would not
pose a danger if spared (but incarcerated) must be considered
potentially mitigating," and "such evidence may not
be excluded from the sentencer's consideration."
Skipper v. South Carolina, 476 U.S. 1, 5 (1986).
Because we also conclude the state court's error in this
regard had a substantial and injurious effect, we reverse the
district court's decision and remand with instructions to
2008, Lawlor worked as a leasing consultant at an apartment
complex in Fairfax County, Virginia, and had access to keys
to each apartment. On September 24, 2008, Lawlor consumed
alcohol and a large amount of crack cocaine and sexually
assaulted, bludgeoned, and killed a tenant in that complex,
Genevieve Orange was found on the floor of the living area
of her studio apartment. She was naked from the waist down,
her bra and t-shirt had been pushed up over her breasts, and
semen was smeared on her abdomen and right thigh. Her soiled
and bloodied shorts and underpants had been flung to the
floor nearby. She had been struck 47 times with one or more
A bent metal pot was found near Orange's body. Its wooden
handle had broken off and was found in the kitchen sink, near
a bloody metal frying pan that had been battered out of its
original shape. Some of Orange's wounds were consistent
with having been struck with the frying pan. Subsequent
medical examination established that she had aspirated blood
and sustained defensive wounds, together indicating that she
had been alive and conscious during some part of the beating.
Lawlor v. Commonwealth, 738 S.E.2d 847, 859 (Va.
was indicted on March 16, 2009, in Virginia state court on
two counts of capital murder: (1) premeditated murder in the
commission of, or subsequent to, rape or attempted
rape; and (2) premeditated murder in the
commission of abduction with the intent to
defile. On the eve of trial, Lawlor admitted
"participation" in the murder. Lawlor, 738
S.E.2d at 859. In February 2011, Lawlor was convicted of both
counts. He does not challenge any aspect of the conviction in
Lawlor's conviction at the guilt phase of his trial, the
jury proceeded to the penalty phase. Virginia law provides,
"The penalty of death shall not be imposed unless the
Commonwealth shall prove beyond a reasonable doubt
that": (1) "there is a probability based upon
evidence of the prior history of the defendant or of the
circumstances surrounding the commission of the offense of
which he is accused that he would commit criminal acts of
violence that would constitute a continuing serious threat to
society" (the "future dangerousness
aggravator"); or (2) "that his conduct in
committing the offense was outrageously or wantonly vile,
horrible or inhuman, in that it involved torture, depravity
of mind or aggravated battery to the victim" (the
"vileness aggravator"). Va. Code Ann. §
Commonwealth presented evidence of aggravating factors
supporting a death sentence. Lawlor then presented his
mitigation case, which included around 50 witnesses, in
support of a LWOP sentence. He called witnesses who testified
about his alcohol and drug abuse; family witnesses; social
history witnesses; experts who testified about addiction; and
as discussed in depth below, an expert on prison risk
assessment and adaptation, Dr. Mark Cunningham.
jury found that both the vileness aggravator and future
dangerousness aggravator were present in Lawlor's case,
and it returned a death sentence on each of the two murder
counts. Thereafter, the trial court was charged with
determining "whether the sentence of death is
appropriate and just." Va. Code Ann. § 19.2-264.5.
At sentencing on July 1, 2011, the trial court concluded
there was "no reason to intercede and sentence [Lawlor]
contrary to the recommendations of the jury in either count
one or two," and imposed the death sentence. J.A. 1230.
the most contentious portion of the penalty phase was during
the testimony of retained expert Mark Cunningham, Ph.D., a
clinical psychologist and expert in prison risk assessment
and adaptation. He evaluated Lawlor by interviewing him, his
former probation officer, a friend, and a corrections
supervisor; and by reviewing criminal records, prison
records, mental health and rehabilitation records, school
records, and employment records. Dr. Cunningham used
Lawlor's past behavior, as well as statistical data and
actuarial models, to analyze Lawlor's "potential to
adjust to a life term in prison without serious
violence." J.A. 552.
Cunningham is Permitted to Testify
first issue was whether Dr. Cunningham would be able to
testify at all. Defense counsel proffered:
What he is going to be talking about is, and as set forth in
his report, based upon the particular characteristics of Mr.
Lawlor, the fact of his prior conduct while incarcerated in
jails and prisons in the past, and the lack of write-ups for
lack of violence; Mr. Lawlor's age; Mr. Lawlor's
having connections with members of the community, and other
factors as set forth in the report that, based upon specific
factors that relate to Mr. Lawlor that are different than me
and that are different than other Defendants.
Based upon all that, Dr. Cunningham will opine that Mr.
Lawlor is a low risk to commit serious acts of violence in
prison and he can put some numbers on that as set forth in
the report; a low risk, a very low risk.
That is peculiar to him. That is unique to him.
869-70. The trial court ultimately ruled:
I don't dispute that what you have said so long as it is
particularized to this Defendant and stays with in the
guidelines of Morva [v. Commonwealth, 683
S.E.2d 553 (Va. 2009)], but I think that Dr. Cunningham's
report appears to me to be far in excess of that. . . .
[T]otal exclusion of Dr. Cunningham would be improper under
[Morva and Gray v. Commonwealth, 645 S.E.2d
448 (Va. 2007)] but it's going to have to be limited
under the rules of evidence, in all respects, as well as
limited to the particularized facts of this Defendant as set
forth; his character, his prior record and the circumstances
of his offense, not prison life and not the effect of prison
Id. at 872-73.
Commonwealth objected: "It was mentioned in
Counsel's argument about [Lawlor's] risk of future
dangerousness in prison society. That's not the question,
and the jury is not limited to considering prison society and
that's another danger with this type of testimony."
J.A. 873. The trial court explained, "The Supreme Court
has been very clear; it is the society, it is not the prison
society which he is maybe confined to --it's society,
period." Id. at 874. Defense counsel then
stated, "I would not put [Dr. Cunningham] on to say
[Lawlor is not a risk of future dangerousness, period]."
Id. at 875. The trial court then allowed Dr.
Cunningham to take the stand.
Trial Court's View of "Society"
direct examination, Dr. Cunningham explained his methodology
and the materials he reviewed. Defense counsel stated,
"[S]pecifically regarding the facts and circumstances of
Mr. Lawlor's prior history, and the circumstances of the
offense, [I want to turn to] whether Mr. Lawlor would commit
criminal acts of violence that would constitute a continuing
serious threat to society in the future." J.A. 955. The
Commonwealth objected, and the trial court reiterated that
society "is not the prison. . . . I think [defense
counsel] knows that he can't ask that question, limited
to the prison." Id. at 957.
counsel then asked Dr. Cunningham, "[W]hat is your
opinion as to whether Mr. Lawlor would commit criminal acts
of violence that would constitute a continuing serious threat
to society if he were to be sentenced to life imprisonment
rather than to death?" J.A. 960-61. Dr. Cunningham
answered, "That likelihood is very low," to which
the Commonwealth objected, and the trial court sustained the
objection and struck the answer. Id. at 962. After
several more attempts by defense counsel to elicit testimony
about Lawlor's future dangerousness in prison, the trial
court said, "[I]t's not limited to prison society,
and it's misleading to the jury." Id. at
court repeatedly admonished defense counsel and Dr.
Cunningham not to confine "society" to prison.
See, e.g., J.A. 979 ("We've already
discussed that three times at the bench. The issue is not
life in prison. It's an issue of risk of violence,
period."); id. at 981 ("The issue in this
case that you are here to testify about is the likelihood of
future violence of Mr. Lawlor. It is not the likelihood of
future violence in prison."); id. at 995
("It's future dangerousness, period, not future
dangerousness in prison . . . ."); id. at 1023
("The issue is not violence in prison. . . . [I]f [Dr.
Cunningham] continues to talk about violence in prison
that's not the issue."); id. at 1027
("I have told you over and over the issue is future
dangerousness. It's not future dangerousness in prison .
. . it's future dangerousness of this individual and you
keep trying to back door in the capital sentence . . .
trial court also relied on the Virginia Supreme Court
decision of Porter v. Commonwealth, 661 S.E.2d 415
(Va. 2008), explaining, "[I]n Porter, they . .
. said the argument that . . . prison society, what you call
prison life, is the only society which should be considered
for future dangerousness has been rejected." J.A. 986.
As a result of the trial court's belief that Dr.
Cunningham could not testify about future dangerousness in
prison only, Dr. Cunningham was not able to
sufficiently explain his prediction that Lawlor would present
a very low risk of violence if incarcerated.
Cunningham's Other Testimony
Cunningham was able to testify about some of the
characteristics and history of Lawlor. He stated that there
was an instance of Lawlor being "verbally abusive and
profane towards jail staff," J.A. 1036, and being the
"victim" of two fistfights, for which no
disciplinary action was taken, id. at 1009. But Dr.
Cunningham explained that, overall, Lawlor was not
historically violent in a prison setting. He otherwise
attempted to discuss risk factors such as age and education,
both of which he found to weigh in favor of Lawlor being a
low risk for prison violence. However, when Dr. Cunningham
attempted to cabin his opinion in terms of
"prison," the Commonwealth would object, and the
trial court would admonish the expert or defense counsel. Dr.
Cunningham eventually told the court it would "violate
[his] oath" if he talked about risk of violence
outside of prison because his "risk assessment
is specific to prison," and the trial court responded,
"Then you may not be able to testify." Id.
response to Lawlor's argument on this point, the
Commonwealth contends "the jury actually heard the
opinions that Lawlor [has] asserted in his petition were
missing." Resp't's Br. 24 (citing J.A. 966,
967-72). But the passages cited in the Commonwealth's
brief do not support this contention. In the first passage,
Dr. Cunningham stated, "[T]here is a very low likelihood
of serious violence from being in prison," which was
vague and not at all particularized to Lawlor. J.A. 966. The
other passage cited likewise contains no evidence specific to
Lawlor; rather, it is a list of the factors Dr. Cunningham
considered in his assessment, ending with yet another
objection and bench conference. See id. at 967-72.
In all, Dr. Cunningham's testimony, riddled with
objections and bench conferences, could hardly have given the
jury a firm and clear picture of his predictive expert