Ploof v. State

¶1dissenting.

¶2We concur with the Majority Opinion’s conclusion that the postconviction judge’s decision that Ploof had not been deprived of his constitutional right to effective assistance of counsel under the standard of Strickland v. Washington125 was erroneous. We write separately, however, because we respectfully disagree with the Majority Opinion’s decision to uphold the postconviction judge’s conclusion that the Strickland violation did not prejudice Ploof.

¶3Under Strickland, in deciding whether Ploof was prejudiced by a deprivation of his constitutional right to effective assistance of counsel, the only determination that we are charged with making is whether there is a reasonable probability that a *869sentencing judge at a sentencing hearing would have, after hearing all of the evidence, including the testimony given by Ploofs foster sisters and Dr. Stewart at the postconviction hearing (the “Child Abuse Evidence”), given Ploof a life rather than death sentence.126 Our role under Strickland is not to perform a resentenc-ing on the appellate record. The postcon-viction judge went beyond the consideration of the evidence that is required by Strickland and instead drew factual inferences that might be appropriate for a sentencing judge to make after a sentencing hearing, but which are inappropriate under and irrelevant to the more constrained factual analysis required to determine whether prejudice under Strickland exists.

¶4In his decision, the postconviction judge concluded that Trial Counsel’s failure to develop the mitigating Child Abuse Evidence did not fall short of the Strickland standard. He further concluded that regardless of whether counsel had been ineffective, the Child Abuse Evidence was of such insufficient weight that it would “probably [not] have made any impact” at the original sentencing.127 The postconviction judge’s determination that the Child Abuse Evidence’s omission caused no prejudice within the meaning of Strickland is not supported by the record and resulted from an incorrect application of the proper legal standard. In both his original and remand decision, the postconviction judge misapplied the prejudice standard by determining that there was no prejudice because he, in his capacity as the judge handling the petition, did not personally believe any mitigating weight should be given to evidence that a defendant (i) was raised by a father who was a sexual predator of his foster sisters; (ii) had to comfort those foster sisters and live in a house with them when he knew his father was preying on them; (iii) suffered physical and emotional abuse at the hands of his father; (iv) suffered physical and emotional abuse at the hands of his mother; and (v) was raised by a mother who did not protect him or his foster sisters from or even acknowledge the rampant sexual and physical abuse within their household.

¶5In other words, the postconviction judge did not consider whether, when considered along with the other mitigating evidence, the Child Abuse Evidence could have led a reasonable sentencing judge to conclude that Ploof should receive a sentence of life in prison rather than death. Under the applicable standard, the test of prejudice is simply that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”128 Although this does not mean that every omission of mitigating evidence in a capital case will cause prejudice, it does mean that a new sentencing hearing is required when the omitted evidence is of sufficient weight that there is a reasonable probability — i.e., a meaningful chance or substantial likelihood — that it would cause a reasonable sentencing judge to come to a different *870result.129 If that is the case, confidence in the original outcome is sufficiently undermined that a finding of prejudice must be made.130Strickland does not require a defendant to show that the outcome “more likely than not” would have been different.131

¶6Here, we conclude, after considering the undisputed evidence in the postconviction hearing record, that the Child Abuse Evidence was of sufficient weight that a reasonable sentencing judge could have reached a different balance and concluded that the mitigating evidence outweighed the aggravating. The record does not support a conclusion that a reasonable trial judge would have had no option other than to sentence Ploof to death despite the serious child abuse he suffered and its possible effects on his character and capacity to make moral decisions. A reasonable sentencing judge could choose to give Ploof a life sentence because the Child Abuse Evidence, along with the evidence regarding Ploof s lengthy history of military service, could have mitigated the punishment he should receive for the indisputably unjustified and pre-meditated murder of his wife for pecuniary and other personal gain. In other words, a reasonable judge could find that the Child Abuse Evidence was an important explanatory and mitigating factor that, when added to the evidentiary record, weighed in favor of a life sentence. That would especially be the case if the jury advised in favor of life or only rendered a non-unanimous recommendation in favor of death.

¶7We explain these conclusions more fully in the rest of this opinion. First, we describe the relevant factual and procedural background of the case. Then we explain why we believe the postconviction judge’s decision — that Ploof did not suffer prejudice as a result of his trial counsel’s failure to investigate and present the mitigating Child Abuse Evidence — was erroneous. Finally, we address the Majority Opinion’s affirmance of the postconviction judge’s determination that Ploof did not suffer prejudice. Because the postconviction record of new mitigating evidence is of sufficient strength that there is reasonable probability a reasonable sentencing judge would have given Ploof a life rather than death sentence if he had had a chance to consider all of the evidence, we respectfully dissent.

¶8I. BACKGROUND132

¶9On November 3, 2001, Ploof shot and killed his wife Heidi with a single bullet to *871her head in the parking lot of the Dover Wal-Mart. Ploof planned to take the money from a life insurance policy on Heidi that had just gone into effect and start a new life with his mistress. After murdering his wife, Ploof hid the murder weapon and attempted to mislead the police by making phone calls pretending that he did not know why his wife was home late from work. Police arrested Ploof the following day and he was indicted by a grand jury on the charges of Murder in the First Degree133 and Possession of a Firearm During the Commission of a Felony.134

¶10Ploof pled not guilty, and he claimed that his wife had committed suicide in his presence in the parking lot. The jury did not credit this theory and convicted Ploof on both charges. The trial then proceeded to a sentencing hearing under 11 Del. C. § 4209(b). The jury in a sentencing hearing of an adult convicted of first-degree murder must first decide whether the evidence shows the existence of at least one statutory aggravating factor beyond a reasonable doubt, and second, make a recommendation regarding whether all the aggravating evidence outweighs the mitigating evidence.135 If the jury unanimously finds that one statutory aggravating factor exists, the judge shall consider the jury’s recommendation and shall impose the death penalty if she decides for herself that the aggravating evidence outweighs the mitigating evidence.136

¶11At Ploofs sentencing hearing, the jury unanimously found that Ploof had murdered his wife for pecuniary gain, which is a statutory aggravating factor.137 The judge also found that the state had proven the existence of the following non-statutory aggravating circumstances: the murder was without provocation; the victim was helpless; Ploof had been disciplined in prison for several minor offenses and a major offense involving possession of a shank, which Ploof claimed was an etching device; Ploof had been disciplined by the military for having an affair;138 Ploof had a criminal record for theft of a tractor and was arrested but not prosecuted for conduct that would have amounted to assault in the third degree of a prior girlfriend;139 and Heidi’s death had a significant effect upon her surviving relatives who loved her and missed her dearly.140

¶12Ploofs mother, Shirley, was the only witness to testify regarding his childhood or family history and Trial Counsel did not offer any other evidence related to Ploofs upbringing at the sentencing hearing. Shirley testified that Ploof has a brother, Kevin, who has cerebral palsy and is physically and mentally handicapped.141 Shirley also testified that, during a period of around eight years during Ploofs childhood, over thirty foster children, many of whom had behavioral problems, lived with the Ploof family.142 When asked about the manner in which she disciplined her children, Shirley stated that “if [Ploof or Kevin] asked for a slap, they got it.”143 When asked whether she disciplined the foster children by giving them “a whack on the *872butt,” Shirley indicated that she did discipline them in that manner, but affirmatively stated “I didn’t hit them.”144 From this testimony, the sentencing judge found that the only mitigating circumstance related to Ploofs family history was the following:

The defendant grew up in difficult family circumstances with a physically handicapped and mentally retarded brother, Kevin. His parents devoted much of their time to Kevin and to thirty foster children they took into their home. The defendant has a good relationship with his family members and can be a positive influence for them, particularly his brother.145

¶13One gets the impression after reading Shirley’s testimony and the sentencing judge’s findings that, while Ploofs family circumstances might have been difficult because of his “physically handicapped and mentally retarded brother” and the constant stream of foster children cycling through his home, his parents were generally loving and nurturing individuals and his childhood was otherwise normal. And, although Shirley’s disciplinary methods might have seemed outdated, there was nothing to indicate to the sentencing jury or judge that Shirley abused her children. Rather, Shirley portrayed herself as a loving mother of the old school, strict variety. Furthermore, there was no testimony at the sentencing hearing regarding Ploofs father’s relationship or interactions with his children. Shirley only briefly mentioned Ploofs father during her testimony. She testified that he was employed as a “tractor trailer truck driver” and that- he also had jobs in “building” during Ploofs childhood.146

¶14In addition to the mitigating circumstances related to Ploofs family, the sentencing judge found that Trial Counsel had established the following additional mitigating circumstances: Ploof served almost twenty years in the U.S. Air Force and had been awarded numerous commendations and service medals, Ploof lacked a substantial criminal record and had no pri- or felony convictions, Ploof was capable of following rules and regulations and had the potential to do well in a structured prison environment, Ploofs family and loved ones would be seriously affected by his execution, and Ploof had expressed remorse for killing Heidi.147

¶15The jury unanimously found that the aggravating circumstances outweighed the mitigating circumstances. The sentencing judge recognized that he was not bound by the jury’s recommendation, but nevertheless believed that he should give it “great weight,” and imposed the death sentence.148

¶16At the postconviction hearing, the court heard testimony that painted a drastically different portrait of the Ploof family home than that depicted by Shirley at the sentencing hearing. The evidence developed by Ploofs postconviction counsel and presented at the postconviction hearing, if accepted as true, shows that Ploof was raised in an appalling environment that a reasonable mind could conclude seriously affected his moral development and character.

¶17Ploofs parents had raised thirty-three female foster children in their home in Poughkeepsie, New York, until the home was forcibly shut down by New York authorities in response to allegations that Ploofs father, Gerald, was sexually abus*873ing the foster children. Ploofs postconviction counsel contacted six of the foster children who had lived with Ploofs family and they agreed to testify. The court heard testimony from Ploofs foster sisters that Gerald had beaten Ploof when he was a child, that Shirley had abused Ploofs “physically handicapped and mentally retarded brother” and on one occasion had broken his arm by twisting it behind his back, that Gerald sexually abused the foster girls living with the Ploof family while Shirley looked the other way, and that Ploof had witnessed Gerald’s sexual abuse of his foster sisters. There was also testimony that Ploof took steps to protect his foster sisters from Gerald’s physical and sexual abuse149 and tried to comfort them when they were victimized.150 According to their testimony at the postconviction hearing, the Ploof home was a “sterile and cold”151 place of “fear” 152 that the girls were “scared to death” 153 to be in. Ploofs expert witness testified that this abusive upbringing likely had a negative effect on Ploofs character and moral development.154

¶18Three of the foster sisters described the physical abuse that Gerald would inflict on Ploof. One foster sister testified that when Gerald was in a “mood,” Ploof would try to protect the girls by telling them to get out of the house and go on walks and that when they would return from these walks they would hear Gerald yelling loudly while Ploof cried and that they “could hear the hands hitting the flesh.”155 When asked how often Gerald hit Ploof, she testified that it happened three or four times a week.156 A second foster sister described the relationship between Gerald and Ploof as “abusive” and testified that she would see Gerald go down to the basement where Ploofs bedroom was located carrying a belt and then she would “hear the belt hitting him” and that it sounded like a “snap across his body.”157 Another foster sister testified that Gerald hit Ploof on a “regular basis” and that Gerald would punch Ploof with a closed fist and push him; she also testified that she once saw Gerald throw Ploof down the stairs.158 She testified that Gerald physically abused Shirley as well, stating that he would “punch her in the face, hit her, pull her arms, slap her, [and] push her into walls.”159

¶19Ploofs foster sisters also testified that while they lived in the Ploof house they were sexually abused by Gerald. Their testimony described the ways in which Gerald exposed himself to,160 groped,161*874and sodomized his foster daughters.162 One foster sister testified that “[Gerald] would force [her] to have anal sex and perform oral sex on him.” 163 She testified that, on one of the dozens of occasions that Gerald raped her, she was “erying because it hurt and Gerald was telling [her] to shut up” when Ploof “came in the house and he saw it.”164 There is also evidence that, on at least one occasion, Ploof imitated his father’s behavior by exposing himself to one of his foster sisters.165

¶20Shirley joined in the abuse by beating the foster children and physically abusing Kevin.166 On one occasion, when Shirley wanted Kevin to take a bath and Kevin didn’t want to, Shirley punished him by twisting his arm so far behind his back that it broke.167 Shirley would also punish Kevin by bending his handicapped hand backwards until he cried out in pain.168 In addition to the physical abuse she inflicted on her own disabled son, and in direct conflict with the testimony that Shirley gave at Ploof s sentencing hearing, the foster sisters testified that Shirley slapped them and hit them.169 They reported that Shirley was aware of both the sexual and physical abuse committed by her husband Gerald, but she did nothing to stop it.170 To the contrary, one foster sister testified that Shirley forced her to lose her virginity to a neighbor with “good standing” on her sixteenth birthday.171

¶21But none of this Child Abuse Evidence was introduced at the sentencing hearing because Ploof s Trial Counsel had failed to discover it. As we shall explain, this powerful evidence that the Ploof household was rife with sexual, physical, verbal, and thus emotional abuse, and parental deceit would have been accepted as substantial mitigating evidence by the jury and judge who ultimately had to determine whether Ploof should receive a life or death sentence.

¶22II. ANALYSIS OF THE POSTCON-VICTION JUDGE’S DETERMINATIONS

¶23a. The Postconviction Judge’s Analysis Did Not Adhere To The Objective Reasonable Probability Standard Applicable Under Strickland

¶24In situations where a Strickland violation has resulted in a failure to present mitigating evidence, the test for prejudice is whether there is a “reasonable probabili*875ty” that the result of the penalty phase would have been different.172 “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 173 Although this standard is not mathematically precise, it clearly does not require that it be more likely than not that a different sentence would have resulted had the missing mitigating evidence been considered. Rather, a finding of prejudice is required if there is a substantial likelihood that a reasonable sentencing authority would have reached a different conclusion if it had the chance to consider the missing mitigating evidence.174 In simple, common sense terms, a reasonable probability means that there is a meaningful chance that the new evidence would have caused a reasonable sentencing authority to give a different sentence. This inquiry is an objective one that focuses on what effect the evidence could have on a reasonable sentencing authority. The United States Supreme Court focused on the objectivity of the prejudice test in Strickland when it stated:

The assessment of prejudice should proceed on the assumption that the deci-sionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel’s selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry.175

¶25The Delaware General Assembly has adopted a statutory regime to handle crimes for which a death sentence may be imposed that invests the ultimate sentencing discretion in the judge, not the jury.176 But the judge’s exercise of discretion comes only after the jury provides her with its own views.177 Therefore, the jury retains an important role in our statutory sentencing regime. In every ■ case, as a pre-requisite to invoking that judicial discretion at all, the jury must find unanimously that one statutory aggravating factor exists.178 If it does so, the jury must make a recommendation whether all the aggravating circumstances outweigh the mitigating circumstances.179 The judge then considers the jury’s recommendation, giving it what weight she deems appropriate,180 and decides for herself whether the aggravating circumstances outweigh the mitigating circumstances.181 In the case where the sentence imposed by the judge differs from the jury’s recommendation, the statute further requires that the judge “state with specificity the reason for its decision not to accept the jury’s recommendations.”182 If the judge ultimately *876finds that the aggravating circumstances outweigh the mitigating circumstances, she must impose a death sentence.183 If she reaches the opposite conclusion, the defendant is sentenced to life without parole.184

¶26The question of whether Ploof has suffered prejudice under Strickland, then, is whether there is a substantial likelihood that a reasonable sentencing judge might have arrived at a different result when weighing the aggravating circumstances of Ploofs crime against the mitigating circumstances.185 To make this determination, the court hearing a petition for postconviction relief must consider all the relevant facts, because “a process that accords no significance to relevant facets of the character and record of the individual offender ... excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.”186 Accordingly, the court must add the missing mitigating evidence to the mix and reweigh the aggravating and mitigating circumstances to determine whether a reasonable judge might have sentenced Ploof to life rather than death.187 This reweighing is not itself a sentencing decision.188 Rather, if the postconviction court’s reweighing supports the conclusion that there is a meaningful chance that a reasonable sentencing judge would have decided that the mitigating evidence outweighed the aggravating evidence and given a life sentence, the sentence should be vacated so that a new sentencing hearing is conducted in conformity with the statute.189

¶27*877The postconviction judge, while purporting to apply the correct standard for prejudice,190 wrote a supplemental decision on remand that seemed to be more a statement of what sentence he personally would have imposed on Ploof if he were assigned to conduct a new sentencing hearing than a determination of whether there was a reasonable probability that a reasonable sentencing judge assigned that responsibility would have given Ploof a life sentence, after considering the Child Abuse Evidence as part of the evidentiary mix.191 That subjective approach was inconsistent with the objective focus in Strickland on what effect the missing evidence would have on a reasonable sentencing authority.192

¶28Although the postconviction judge reviewed much of the Child Abuse Evidence, he focused on the fact that much of the evidence involved Gerald’s serial sexual victimization of Ploof s foster sisters and thus “only sparingly touched upon defendant Ploof.”193 That is, because Ploof was not himself sexually victimized by his father and his crime did not involve sexual abuse, the postconviction judge concluded that it had little or no relevance to a sentencing judge evaluating what punishment to give Ploof.194 Indeed, the postcon-viction judge at one point attempted to curtail questioning of the foster sisters about the abuse they suffered, even though they had voluntarily come to the hearing to testify about their experiences in the Ploof home.195 Despite the foster sisters’ voluntary testimony, the postconviction judge even drew the inference that the sentencing jury would have held it against Ploof that they had to testify about the painful abuse they endured from Ploofs parents.196 The possibility that another reasonable sentencing judge might conclude that having a serial sexual predator as a primary role model and having to witness his father’s repeated victimization of his foster sisters might have a meaningful impact on the defendant’s moral character and capacity to distinguish between good and evil was ruled out categorically by the postconviction judge.197

¶29*878The postconviction judge also slighted the testimony that the defendant had comforted some of his foster sisters after they were victimized by his father.198 Likewise, the postconviction judge gave no consideration of what effect it might have had on Ploofs character and capacity for moral decision-making to have been raised in a household where his mother tolerated the abuse of her foster daughters and no one was permitted to talk about the rampant sexual abuse. The postconviction judge instead focused on whether any of this evidence would “endear” Ploof to the jury and sentencing judge.199 But that has little relevance to the real issue, which is whether being raised in this environment might have an effect on the defendant that a reasonable mind could consider as mitigating toward the imposition of a life, rather than death sentence. Perhaps most importantly, several of the foster sisters testified that Ploof himself was the victim of repeated physical, verbal, and emotional abuse by his father, as well as his mother.200 The postconviction judge did not give any weight to this important evidence, which undermined the reliability of his analysis.201

¶30b. Because the Postconviction Judge Did Not Perform The Required Prejudice Analysis, This Court Must Reweigh The Evidence To Consider How the Child Abuse Evidence Alters The Evidentiary Mix

¶31Because even after remand the postcon-viction judge did not engage in a reweighing of the evidence that took into adequate account the physical, verbal, and emotional abuse Ploof directly suffered at the hands of his parents, and did not consider whether it could have led a reasonable sentencing judge to give a different sentence, this Court must do so itself to consider whether there was prejudice.

¶32Such a reweighing, in our view, starts with an acknowledgment that Ploof planned and carried out the murder of his wife to recover insurance proceeds and spend them on a new life with another woman.202 Ploofs attribution of his wife’s death to a suicide he witnessed and his lack of acceptance of responsibility are legitimate factors that any reasonable jury and sentencing judge could consider in reaching a conclusion that Ploof was not genuinely remorseful for his acts. But, in determining whether those aggravating factors supported the imposition of a death sentence, the jury and the sentencing judge would have to weigh them against the mitigating evidence in the record, to make the ultimate determination of balance the statute requires.203 As the United States Supreme Court has made clear, “[mjitigating evidence is ‘any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ”204

¶33*879In that balance, therefore, the jury and sentencing judge would be required to consider the reality that Ploofs life had not been without value to his nation. Although the original sentencing hearing evidence on even this point was less complete than the circumstances likely called for, the fact that Ploof had served in our nation’s Air Force for 20 years was presented as was the fact that he had been awarded numerous commendations and service medals.205 There were blemishes on Ploofs record,206 but the underlying reality is that Ploof had given two decades of service to his nation in the Air Force. A reasonable sentencing judge charged with making the decision whether to give a life or death sentence ■ could give that service great weight.

¶34The addition of the Child Abuse Evidence to the evidentiary mix becomes potentially important and outcome-influencing in part precisely because it could give a reasonable jury and sentencing judge a better insight into why a veteran airman might commit and lie about such a horrible crime. In this calculus would be the reality that the jury and sentencing judge were not considering whether Child Abuse Evidence should excuse Ploof from punishment at all. Rather, they were considering whether that evidence of serious child abuse should be given important weight in determining whether Ploof should be executed for his horrible crime or spend the rest of his life in prison.207

¶35III. ANALYSIS OF THE AFFIR-MANCE OF THE POSTCONVICTION JUDGE’S DECISION

¶36a. An Appellate Court Must Make A Limited Strickland Prejudice Analysis

¶37The postconviction judge did not give proper consideration to the Child Abuse Evidence in reaching the determination that the addition of that evidence to the sentencing hearing record could have led a reasonable judge to give a life rather than death sentence. The Majority Opinion’s thorough and careful examination of the record relies to no discernible extent on the analysis of the postconviction judge. Instead, the Majority Opinion addresses aspects of the record the postconviction judge ignored or slighted208 In reviewing the postconviction judge’s decision, this Court cannot draw factual inferences and make determinations about the evidentiary weight of the Child Abuse Evidence that go beyond what is proper to determine whether there is prejudice under Strickland. Appellate judges should not make these ultimate decisions solely on factual inferences drawn from a paper record. As this Court acknowledged, a judge who “had the advantage of hearing live testimony” is “in a better position than are we to reweigh the aggravating evidence against the sum of the mitigating evidence presented.” 209

¶38These ultimate inferences and determinations of fact are ones that a reasonable *880sentencing judge might permissibly make after holding a new hearing and receiving the required advisory vote of a jury. But a reasonable sentencing judge and jury would also be within their discretion to reach different ultimate determinations based on the Child Abuse Evidence and its effect on the evidentiary balance relevant to what sentence Ploof should receive. The issue before this Court is only whether the new mitigating evidence tilts the evidentiary mix such that there is a meaningful chance a reasonable judge would choose to give Ploof a life sentence.210

¶39For example, the Majority Opinion implicitly recognizes that the postconviction judge did not give any weight to the evidence that Gerald physically and emotionally abused Ploof and undertakes its own consideration of that Evidence.211 The Majority Opinion then seems to draw the factual inference that the only abuse suffered in the Ploof home was that specifically testified to at the Rule 61 hearing. For example, the Majority Opinion says this about the physical abuse committed on Ploof by Gerald: “[Tjhree of the six former foster girls testified that Gerald beat Ploof — with his hand or a belt. But, there is no testimony or medical record indicating that these beatings led to scars or bruises. Testimony that Gerald once threw Ploof down a flight of stairs is more significant, but there is no evidence that this occurred more than once.”212

¶40A reasonable sentencing judge who heard testimony from Ploof s foster sisters that they witnessed and heard Gerald seriously physically abusing Ploof might conclude that the instances they specifically testified to were not the only instances of abuse committed by Gerald, but were instead indicative of how Ploof was regularly treated throughout his entire childhood. In fact, a reasonable sentencing judge might conclude that, if Ploof s father threw him down the stairs in full view of one of his foster sisters and beat him in front of others, he likely felt even freer to do so when they were not around. Thus, a reasonable sentencing judge could conclude that Gerald regularly subjected Ploof to physical abuse, especially because one of the foster sisters testified that Gerald beat Ploof three to four times a week.213

¶41Even without testimony that Ploof s foster sisters saw bruises on Ploof s body, the mere testimony that they heard the sound of fists hitting flesh and a leather belt snapping across Ploofs body as Gerald beat him could still lead a reasonable sentencing judge to conclude that Gerald’s physical abuse caused Ploof serious and enduring harm. The sadistic are not necessarily without cunning and a reasonable sentencing judge could have inferred that *881the foster sisters did not testify that they saw bruises on Ploofs body because Gerald struck Ploof on parts of his body typically covered by clothing. What is most important, however, is that the record does not support a conclusion that this evidence could not have been given great mitigating weight by a reasonable sentencing judge. A sentencing judge presented with this evidence easily could have concluded that Gerald subjected Ploof to physical abuse on a regular basis, and that this abuse could have affected Ploofs own moral development and character.

¶42The evidence that Gerald was a serial sexual predator who regularly victimized Ploofs foster sisters by raping, sodomizing, groping, and otherwise violating them cannot be discounted simply because Gerald did not sexually molest Ploof himself.214 That does not mean that Gerald’s sexually abusive conduct toward Ploofs foster sisters was not also emotionally abusive of Ploof and seriously injurious to his character development. To have one’s father sexually violate your sisters over and over again, to know that it was going on while your mother looked the other way, to have to comfort them afterwards, and to be helpless to stop it, is not something any child should have to endure. A reasonable sentencing judge could have found this to have harmed Ploof in a substantial way.

¶43A reasonable sentencing judge could also conclude that Ploof was aware of more than the specific instances of abuse which his foster sisters testified that he witnessed.215 The evidence that Shirley broke his brother Kevin’s arm cannot be discounted simply because no one testified that Ploof was aware of the incident216 and the testimony of one of Ploofs foster sisters regarding the sexual abuse that Gerald inflicted on her remains important even though she stated that “Ploof did not witness” the abuse.217 All of this abuse occurred within the close confines of Ploofs childhood home.218 A reasonable sentencing judge could have concluded from the record that Ploof had a general awareness of the pervasive physical, sexual, and emotional abuse that was occurring in his home even if he didn’t actually see everything that happened.

¶44A determination that Ploof was generally aware of the abuse would be supported by testimony given by the foster sisters that Ploof witnessed several instances of Gerald’s sexual misconduct,219 comforted the victims afterward,220 and on other occasions tried to protect them from Gerald having a chance to victimize them.221 This *882is evidence that a reasonable sentencing judge might conclude showed that Ploof was aware that his father was sexually-abusing his foster sisters on a regular basis. A reasonable sentencing judge could also have inferred from the testimony given by Ploof s foster sisters that, even though they didn’t see Gerald hit Ploof, they could “hear” the sounds of Gerald yelling and hitting Ploof with his hands and a belt while Ploof cried that Ploof, who lived in the same home, could also hear the abuse that Shirley and Gerald doled out on his brother and foster sisters. Thus, a reasonable sentencing judge could have concluded that everyone in the Ploof household was aware of the open secret that Gerald frequently sexually abused his foster daughters.

¶45Likewise, the fact that Shirley abused both of her sons and her foster daughters cannot be discounted on the grounds that it simply provides additional details which fill out the portrait of Ploof s mother that had been painted at the original sentencing hearing.222 At that hearing, the jurors and sentencing judge heard evidence that Shirley slapped her children and spanked her foster daughters until she was told not to do so, but “she denied otherwise hitting them.” 223 The record includes the additional testimony that Shirley slapped two foster girls, hit a third in the stomach, and once bent Kevin’s arm back until it broke. Although we acknowledge that none of the foster sisters directly testified that Ploof was aware that Shirley broke Kevin’s arm, a reasonable sentencing judge could still determine that Ploof, who lived in the same house with Shirley, Kevin, and the foster sisters, would have been aware, like they were, that his brother’s arm was broken and, like the foster sisters, would have known that Shirley was responsible.

¶46The evidence regarding Shirley presented at the postconviction hearing is starkly different than the portrayal she gave of herself at Ploof s original sentencing hearing. At that hearing, the jury and sentencing judge were led to believe that Shirley was merely an old school disciplinarian with a stern and sometimes physical parenting style, but one motivated by love. The fact that, while Shirley admitted to spanking the foster girls, she denied otherwise hitting them, contributed to this depiction of Shirley.224 The jury and sentencing judge were not told that Shirley regularly punished Ploofs handicapped brother by bending his hand backwards until he cried out in pain,225 that on one occasion she twisted his arm so far behind his back that it broke,226 or that she was “indifferent,” “unemotional,” and “cold.”227 Furthermore, the depiction of Shirley at the original sentencing hearing would have been considered by the sentencing judge and jury in the context of a home environment that was generally portrayed as ordinary and loving. When the evidence of Shirley’s actions and her stern parenting *883style are combined with the evidence of Gerald’s physical, sexual, and emotional abuse, the overall picture of the Ploof family home is drastically different from that portrayed at the original sentencing hearing.

¶47The portrait of Shirley painted post-trial is not that of an old school disciplinarian who might have used some techniques that are now out of vogue. It is of a mother who compounded the abuse suffered by Ploof at the hands of his father. This mother did not protect Ploof from his father; instead, she turned a blind eye to the abuse he suffered at the hands of his father and piled on abuse of her own, leaving Ploof a victim of the two people who were charged with nurturing and caring for him.

¶48Put simply, the new evidence regarding Shirley was not merely cumulative but could be regarded by a reasonable judge as important and compelling. Taken together with the other new Child Abuse Evidence, it is powerful evidence that a reasonable sentencing judge could have credited in determining that Ploof was raised by two parents who subjected him to severe emotional and physical abuse.

¶49A reasonable sentencing judge could have given this Child Abuse Evidence serious weight even though Ploofs crime was not a model of his father’s or mother’s behavior.228 That conclusion is consistent with the selfish, deceitful, and dishonest nature of Ploofs behavior in murdering his wife for monetary gain and lying about that fact. The household in which Ploof was raised was led by two parents who were, if the Child Abuse Evidence is given weight, role models for deceit, immorality, and selfishness. Those characteristics were all prominent features of Ploofs horrible crime. A reasonable sentencing judge could conclude that a connection existed between Gerald’s abuse of a series of foster daughters who cycled through his house and his dehumanizing use of those daughters for his own sexual gratification and Ploofs later decision to murder his wife for his own personal gain. Some parents teach their children to treat others with respect and to value all human life. A reasonable sentencing judge could conclude that Ploof learned from Gerald to objectify women and treat them as a means to his own personal ends.

¶50The postconviction judge also appears to have made the determination that Ploofs extensive military career shows that his childhood had no serious effect on his capacity for moral judgment as an adult.229 That is not, however, the only possible inference that a reasonable mind involved in the sentencing process could draw. For some reasonable minds, the fact that Ploof held himself together and functioned effectively within the highly structured environment of the Air Force and made a positive contribution to society would not mean that the abuse perpetrated on him by his father and mother did not adversely affect his moral development and character. In fact, a reasonable mind could consider the fact that Ploof had such a horrible childhood and poor role models, but had been *884able to serve his nation in an important way as being mitigating in its totality. If a sentencing judge or jury were to take that position, it would be entirely consistent with our Nation’s “long tradition of according leniency to veterans in recognition of their service.”230

¶51b. Comparison Of The Child Abuse Evidence In This Case To The Mitigating Child Abuse Evidence In Rom-pilla, Wiggins, And Williams

¶52The Majority Opinion attempts to distinguish United States Supreme Court precedent that can be read as supporting a conclusion that Ploof was prejudiced under Strickland and should receive a new sentencing hearing231 by concluding as a factual matter that Ploof s experience in his childhood home does not rise to the level of the houses of horror experienced by the defendants in Rompilla v. Beard,232Wiggins v. Smith,233 and Williams v. Taylor.234Without in any way denigrating the awful conditions that the defendants in those cases allegedly suffered, the qualitative gradations between the abuse allegedly suffered by the defendants in Rompilla, Wiggins, and Williams and that endured by Ploof in a home rife with pervasive sexual, physical, and emotional abuse is a matter upon which reasonable minds could differ. For example, there may be no consensus whether it is worse to be in the same bed with your mother while she is having sex with an adult partner voluntarily,235 or to witness your father sodomize your foster sister against her will. But, we are confident that no child should have to endure either experience. What we also do not think is debatable is that a reasonable sentencing judge could have concluded that Ploof was a victim of serious child abuse by both parents, abuse that involved selfish, deceitful, immoral, and violent behavior that was injurious to the development of his own capacity to make moral decisions.

¶53The Majority Opinion’s emphasis on the distinctions in the levels of abuse suffered by the defendants in Rompilla, Wiggins, and Williams is inconsistent with its own recognition of the inherently case specific nature of sentencing. Even if the home situation in those cases and the abuse suffered by those defendants was somehow worse than Ploof s home situation and the abuse that he suffered or if Ploof s low to average intelligence distinguishes him from the defendants in these cases who were less intellectually capable,236 the aggravating factors in those cases also might have been viewed by a sentencing judge as more severe. In Rompilla, for example, *885the defendant was found guilty of a murder in which he repeatedly stabbed the victim and then set the victim’s body on fire during the course of a robbery.237 In that case, the jury found that there were three aggravating factors present: the murder was committed in the course of another felony; the murder was committed by torture; and Rompilla had a significant history of felony convictions indicating the use or threat of violence.238 In Wiggins, the defendant drowned a seventy-seven year-old woman in her bathtub in the course of a robbery.239 The state medical examiner testified that the injuries on the victim’s body were consistent with a struggle before her death.240

¶54In Williams, the defendant was found guilty of murder and sentenced to death after he killed an elderly man by hitting him in the chest and on the back with a mattock, causing his rib to puncture his lung and his chest cavity to fill with blood, because the man refused to loan him $2.00.241 After taking the man’s wallet, which had $8.00 in it, Williams walked away and left the dying man on his bed, gasping for breath.242 Williams had been previously convicted of armed robbery and grand larceny and after the murder he had been involved in two auto thefts and two separate violent assaults on elderly victims, including the “brutal” assault of an elderly woman that left her in a permanent vegetative state.243 Williams was also convicted of arson for setting a fire while he was in jail awaiting the murder trial.244 At his sentencing hearing, the state employed two expert witnesses who testified that there was a “high probability” that Williams would pose a “serious continuing threat to society.”245

¶55It also does not appear that any of the defendants in Rompilla, Wiggins, or Williams had a record of positive service to the nation comparable to the service that Ploof gave as a member of the Air Force. A reasonable sentencing judge would not look at the Child Abuse Evidence in isolation to determine whether Ploof should receive a life or death sentence; she would instead examine it in the context of all the other mitigating and aggravating evidence. Focusing exclusively on a comparison of the mitigating Child Abuse Evidence in this case with the mitigating abuse evidence that was offered in Rompilla, Wiggins, and Williams, fails to account adequately for the fact that sentencing decisions are not made in a vacuum solely on the basis of the strength of a particular type of mitigating evidence, but instead are the result of a careful balancing of all of the aggravating and mitigating factors that are present in a specific case by a sentencing judge who has considered the entire record.

¶56c. The Original Sentencing Jury’s Unanimous Recommendation In Favor Of The Death Penalty Is Irrelevant To The Current Question

¶57The Majority Opinion also seems to view as being of importance the fact that the *886jury, without considering the Child Abuse Evidence developed by postconviction counsel, unanimously recommended the death penalty.246 But, we do not view this as predictive of how reasonable jurors might cast their vote when deciding whether to recommend a life or death sentence on the basis of a record containing the Child Abuse Evidence. The record reflects that the additional mitigating evidence was strong evidence that could be regarded by a reasonable jury and sentencing judge as compelling.

¶58Therefore, the record does not support the Majority Opinion’s certainty that “[ejven if the new evidence created a reasonable probability that one juror would have switched sides ... the remaining jurors would have still overwhelmingly recommended the death penalty.” 247 Although our statutory regime does not give the same weight to the role of jury as it used to or as other states do,248 the jury is still important in our system. The original sentencing judge placed “great weight” on the jury’s unanimous recommendation.249 We cannot predict how influential in terms of the number of jurors recommending life as opposed to death the Childhood Abuse Evidence would be or what percentage of reasonable sentencing judges would find that evidence supportive of awarding a life, rather than death sentence.

¶59Thus, we have focused on the weight that a reasonable judge or jury could give to that evidence. Because juries are instructed to deliberate on the issues entrusted to them and encouraged to reach a principled consensus if possible,250 it is hazardous to try to identify how many juror minds might have been swayed by serious evidence of child abuse. So long as there is a reasonable probability that a reasonable juror would have reached a different decision because of that evidence’s effect on the overall record, there is no reason to assume that several jurors, a majority of jurors, or even all jurors might not have reached that conclusion after reasoning together at a new sentencing hearing. Likewise, prejudice under Strickland does not turn on a prediction that the sentencing judge would likely have given life if the missing evidence was in the record. Prejudice exists if the new evidence would have provided the sentencing judge with a reasonable basis for doing so.

¶60This is important, because the ultimate determination of sentence is one that our legislature has entrusted to the sentencing judge, not the jury.251 That reality underscores that there is prejudice under Strick*887land so long as there is a meaningful chance that a reasonable sentencing judge would give a life, rather than death, sentence taking into account the Child Abuse Evidence.

¶61That is especially so, of course, if the jury vote was in favor of a life sentence. But experience also shows that sentencing judges use their statutory discretion to make an ultimate decision different from what the jury recommends when a jury renders a non-unanimous vote in favor of a death sentence. In thirteen prior cases in this state, sentencing judges imposed a life sentence even though the jury recommended a death sentence.

• Baker, Meri-Ya, (9-3 vote)

• Cabrera, Luis, (7-5 vote)

• Crowe, James, (6-6 vote)

• Dickerson, Byron, (9-3 vote)

• Flonnory, Freddy, (7-5 vote after second penalty hearing)

• Govan, Arthur, (jury vote on 4 counts 7-5, 6-6, 8^4, 8-4)

• Jones, David, (7-5 vote)

• Keyser, Michael, (10-2 vote)

• Page, Darrel, (8-4 vote)

• Rodriguez, Jose, (9-8 vote)

• Simmons, Donald, (10-2 vote)

• Taylor, Antonio, (6-6 vote)

• Watson, John, (8-4 vote)252

¶62As can be plainly seen, in several of those cases, the sentencing judge did so despite supermajority jury votes in favor of a capital sentence.253

¶63IY. CONCLUSION

¶64This is a classic situation where a reasonable jury and sentencing judge could consider the entire record and reach a reasoned determination to give either a life or a death sentence. In so concluding, we note that it is a sad reality that murder is all too common in our society. The related and important reality is that the crimes for which a death penalty is a possible sentence under our law are categorically awful and unsympathetic, because they all involve the taking of another human life, in circumstances that our General Assembly has concluded are particularly worthy of punishment.254 Murders that could be *888seen as involving more cruelty and evil than the one Ploof committed have resulted in the imposition of a life, rather than a death, sentence.255

¶65We therefore conclude that there is a reasonable probability that a reasonable sentencing judge, considering all the evidence including the Child Abuse Evidence, would decide that a twenty-year member of our military who had served his country in many important operations, had no prior history of serious criminal activity, and who was a victim of serious child abuse should spend his life behind bars rather than be executed for committing a preplanned murder for pecuniary gain. Under Strickland, therefore, the appropriate remedy is to vacate Ploofs sentence in order for him to receive a new sentencing hearing.256