Brian Dorsey Rule 91 Petition Re: Conflict of Interest

IN THE SUPREME COURT OF MISSOURI
_______________________________________________________
No. _______
_______________________________________________________
In re BRIAN DORSEY,
Petitioner
v.
DAVID VANDERGRIFF, Warden, Potosi Correctional Center,

Respondent
_______________________________________________________
PETITION FOR WRIT OF HABEAS CORPUS

PURSUANT TO MISSOURI SUPREME COURT RULE 91
_______________________________________________________
Megan G. Crane
MacArthur Justice Center
906 Olive Street
Suite 420
St. Louis, MO 63101
314-254-8540
megan.crane@macarthurjustice.org
ATTORNEY FOR BRIAN DORSEY
THIS IS A CAPITAL CASE
Pending Execution Date:

April 9, 2024 @ 6:00 PM CST
TABLE OF CONTENTS
INTRODUCTORY STATEMENT………………………………………………...1
PROCEDURAL HISTORY………………………………………………...……...6
STATEMENT OF FACTS………………………………………………...……….9
ARGUMENT………………………………………………...……………………11
GOVERNING LAW…...…………………………...…………………………….14
I. MR. DORSEY’S CLAIMS OF CONFLICT OF INTEREST AND
RESULTING INEFFECTIVE ASSISTANCE HAVE NEVER
BEEN ADJUDICATED ON THE MERITS IN MISSOURI
COURTS…………………………….....….……………...…………15
A. United States v Cronic demands more than determining
effective assistance by inference, particularly given Missouri’s
lack of compliance with governing professional norms for
capital representation…………….………………...…………15
B. “Credibility” is not a measure of effective assistance, and
counsel fell well below an objective standard of reasonableness
under prevailing professional norms.……………...…………20
II. MR. DORSEY’S COUNSEL HAD A FUNDAMENTAL
CONFLICT OF INTEREST THAT ADVERSELY AFFECTED
THEIR REPRESENTATION, RESULTING IN INEFFECTIVE
ASSISTANCE…………………….……………………...…………22
A. Representation in this Case Fell Well Below the Prevailing
Professional Norms from the Beginning.……….....…………27
B. Counsel’s Conflict of Interest Resulted in a Guilty Plea,
Given in Exchange for Nothing, for a Crime Mr. Dorsey
Could Not Have Committed..……………………...…………32
1. Had Counsel Conducted Even Minimal Investigation,
They Would Have Known Mr. Dorsey was Not Guilty
of First-Degree Murder……………………...…………37
C. Any Alleged Strategy by Counsel was Not Reasonable
Because It Was Not Informed by Investigation………………44
i
D. Adverse Effect and Ineffective Assistance Meant There
Was No Counter to the Government’s Misleading Narrative
and Erroneous Allegations in the Sentencing Phase……….…45
III. MR. DORSEY WAS INCAPABLE OF THE REQUISITE MENS
REA REQUIRED FOR FIRST DEGREE MURDER…....…………53
A. Facts That Trial Counsel Could and Should Have Presented
in a Guilt-phase Proceeding……………………......…………56
1. Mr. Dorsey’s Background…………………...……...…56
2. The Night of the Murders…………………...…………59
B. Mr. Dorsey’s counsel’s conflict of interest led them to deny
Mr. Dorsey a reasonable investigation and a defense to first-
degree murder; Mr. Dorsey’s death sentence was an adverse
effect of their refusal to effectively represent him....…………64
IV. BRIAN DORSEY IS INNOCENT OF CAPITAL MURDER AND
IT WOULD BE A MANFIEST INJUSTICE TO EXECUTE HIM...69
CONCLUSION………………………………...…………...…………………….71
EXHIBITS
1. Trial Transcript
2. 29.15 Hearing Transcript
3. Dorsey v. State, 448 S.W.3d 276, 300 (Mo. 2014)
4. Affidavit of James L. Miller
5. Report from Dr. Edward D. French, PhD
6. Report from Dr. John Matthew Fabian, PhD
7. Declaration of Kayla Brandt
8. Declaration of Janet Thompson
ii
TABLE OF CITATIONS
CASES
Anderson v. Johnson, 338 F.3d 382 (5th Cir. 2003) ......................................... 34, 55
Andrus v. Texas, 140 S. Ct. 1875 (2020) .................................................................27
Berry v. United States, 293 F.3d 501 (8th Cir. 2002) ..............................................15
Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam)...............................................18
Clay v. Dormire, 37 S.W.3d 214 (Mo. banc 2000) .......................................... 69, 71
Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001) .................................................36
Conger v. State, 398 S.W.3d 915 (Mo. App. Ct. 2013) ...........................................53
Cuyler v. Sullivan, 446 U.S. 335 (1980) ... 3, 4, 14, 16, 22, 23, 24, 43, 68, 69, 71, 72
Darden v. Wainwright, 477 U.S. 168 (1986) ...........................................................50
Doe v. Ayers, 782 F.3d 425 (9th Cir. 2015) .............................................................33
Dorsey v. Missouri, 562 U.S. 1067 (2010) ................................................................7
Dorsey v. State, 448 S.W.3d 276 (Mo. 2014) ................... 4, 7, 16, 20, 21, 31, 32, 33
Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995)..........................................................44
Elmore v. Ozmint, 661 F.3d 783 (4th Cir. 2011) .....................................................35
Garcia v. Bunnell, 33 F.3d 1193 (9th Cir. 1994) .............................................. 14, 22
Glasser v. United States, 315 U.S. 60 (1942) ................................................... 14, 15
Herring v. New York, 422 U.S. 853 (1975) .............................................................52
Hutchison v. State, 150 S.W.3d 292 (Mo. 2004) .....................................................54
Kimmelman v. Morrison, 477 U.S. 365 (1986) .......................................... 33, 35, 37
Knighton v. Maggio, 740 F.2d 1344 (5th Cir. 1984) ...............................................66
Martinez v. Ryan, 566 U.S. 1 (2012) .........................................................................2
Mickens v. Taylor, 535 U.S. 162 (2002) ..................................................................45
Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985).....................................................36
Padilla v. Kentucky, 559 U.S. 356 (2010) ...............................................................18
Plunk v. Hobbs, 766 F.3d 760 (8th Cir. 2014) (en banc)...................... 24, 53, 54, 64
Porter v. McCollum, 558 U.S. 30 (2009) (per curiam)............................................31
Powell v. Alabama, 287 U.S. 45 (1932) ..................................................................13
iii
Rompilla v. Beard, 545 U.S. 374 (2005) .................................................................52
Schlup v. Delo, 513 U.S. 298 (1995) .......................................................................71
Sears v. Upton, 561 U. S. 945 (2010) ........................................................... 5, 21, 38
Shinn v. Ramirez, 596 U.S. ___, 142 S. Ct. 1718 (2022) ..........................................3
State ex rel. Amrine v. Roper, 102 S.W.3d 541 (Mo. banc 2003) .................... 69, 71
State ex rel. Koster v. McElwain, 340 S.W.3d 221 (Mo. App. 2011) .....................71
State ex rel. Middleton v. Pash, No. SC95005 ..........................................................2
State ex rel. Ray v. Cassady, No. SC94327 ...............................................................2
State ex rel. Verweire v. Moore, 211 S.W.3d 89 (Mo. 2006) ........................... 69, 70
State v. Cheatham, 296 Kan. 417, 292 P.3d 318 (2013)................................... 16, 23
State v. Dorsey, 318 S.W.3d 648 (Mo. 2010) ............................................................7
State v. Gomez, 672 S.W.3d 113 (Mo. Ct. App. 2023)............................... 50, 55, 60
State v. Roll, 942 S.W.2d 370 (Mo. banc 1997) ........................................................4
State v. Strong, 142 S.W.3d 702 (Mo. banc 2004) ........................................... 55, 59
Strickland v. Washington, 466 U.S. 668 (1984) ... 4, 5, 6, 13, 15, 21, 22, 28, 32, 34,
46, 48, 69, 71, 72
Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015) .................................................36
United States v. Cronic, 466 U.S. 648 (1984) .... 3, 4, 6, 12, 16, 17, 20, 27, 33, 45,
46, 48, 67, 69, 71, 72
United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996) .......................................26
United States v. Gray, 878 F.2d 702 (3d Cir. 1989) ................................................66
United States v. Horton, 845 F.2d 1414 (7th Cir. 1988) .........................................23
United States v. Levy, 25 F.3d 146 (2d Cir. 1994)...................................................23
United States v. Reed, 179 F.3d 622 (8th Cir.1999) ................................................26
United States v. Stantini, 85 F.3d 9 (2d Cir. 1996) ..................................................24
United States v. Tatum, 943 F.2d 370 (4th Cir. 1991) .............................................23
United States v. Tucker, 716 F.2d 576 (9th Cir. 1983) ............................................66
Webb v. Webb, 451 U.S. 493 (1981) ................................................................. 14, 72
Weeden v. Johnson, 854 F.3d 1063 (9th Cir. 2017) ......................................... 33, 41
Wiggins v. Smith, 539 U.S. 510 (2003) ......... 5, 21, 22, 33, 34, 37, 43, 44, 47, 54, 55
iv
Williams v. Taylor, 529 U.S. 362 (2000) .................................................................32
Wilson v. Mintzes, 761 F.2d 275 (6th Cir. 1985) .....................................................24
Wood v. Georgia, 450 U.S. 261 (1981) ............................................................ 14, 22
STATUTES
28 U.S.C. §2254(e) ....................................................................................................3

Mo. Rev. § 552.010........................................................................................... 54, 59
Mo. Rev. § 552.030........................................................................................... 53, 54
Mo. Rev. St. § 565.002(5)................................................................................. 50, 53
Mo. Rev. St. § 565.020 ............................................................................................53
RULES
Mo. R. Prof. Resp. 4-1.7 ................................................................................................23
Rules of the Tennessee Supreme Court, Rule 13, Section 3..........................................19
OTHER AUTHORITIES
ABA Standards for Criminal Justice—Defense Function (3d ed. 1993) ................36
American Bar Association, State Standards For Appointment Of Counsel In
Death Penalty Cases, available at: https://www.americanbar.org/content/dam/
aba/administrative/death_penalty _representation/state-standards-memo.pdf
(last up-dated May 2023) ............................................................................ 17, 18
Death Penalty Cases, Guideline 1.1 cmt............................................................31
Death Penalty Cases, Guideline 10.4(B)(2).......................................................27
Death Penalty Cases, Guideline 10.5(A) ...........................................................40
Death Penalty Cases, Guideline 10.7 .................................................... 36, 38, 66
Death Penalty Cases, Guideline 10.9.1 cmt................................................ 65, 66
v
Death Penalty Cases, Guideline 10.9.1(B)(2)....................................................66
Death Penalty Cases, Guideline 10.9.2 cmt................................................ 32, 67
Death Penalty Cases, Guideline 2.1 ...................................................................18
Death Penalty Cases, Guideline 3.1(E)..............................................................19
Death Penalty Cases, Guideline 4.1(A) .............................................................28
Death Penalty Cases, Guideline 9.1(B) .............................................................26
Death Penalty Cases, Guideline American Bar Association, State Standards For
Appointment Of Counsel In Death Penalty Cases, Guideline 8.1.....................19
Dinn, H., Cocaine Psychosis: Interpretation difficulties, Canadian Society
Forensic Sciences Journal 27: 81-85, 1994 .......................................................51
Manschreck, T.C., et al, Characteristics of freebase cocaine psychosis,
The Yale Journal of Biology and Medicine 61: 115-122, 1988 ........................51
Oregon Public Defense Services Commission Qualification Standards for
Court-Appionted Counsel to Represent Financially Eligible Persons at
State Expense, available at https://www.oregon.gov/opds/provider/
StandardsBP/AttorneyQualification.docx .........................................................19
vi
IN THE SUPREME COURT OF MISSOURI
In re BRIAN DORSEY )
)
Petitioner, )
)
v. ) Case No.
)
DAVID VANDERGRIFF, ) THIS IS A CAPITAL CASE
Warden, Potosi )
Correctional Center, )
)
Respondent. )
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO

MISSOURI SUPREME COURT RULE 91
INTRODUCTORY STATEMENT
Brian Dorsey would not have been sentenced to death, and he would not be
awaiting his April 9, 2024, execution, if he had not been denied his Sixth
Amendment right to unconflicted, effective representation. Having been denied that
constitutional right, Mr. Dorsey was advised to plead guilty to a capital offense, with
the death penalty still on the table, based on no investigation or expert opinion
regarding whether there were viable defenses available. Had counsel investigated
and completed an expert evaluation of their client, they would have learned that Mr.
Dorsey was not guilty of first-degree murder, as he was neurologically incapable of
deliberation. Missouri law provides a defense in circumstances such as this, where
Mr. Dorsey had diminished capacity based on mental disease or defect. Yet, Brian
1
Dorsey was sentenced to death because counsel was laboring under a financial
conflict-of-interest, and pressuring Mr. Dorsey to plead guilty to a crime he could
not have committed was a sound financial strategy for counsel. This was a
fundamental corruption of the adversarial process of the criminal justice system and
manifest injustice this Court must correct.
This petition is the first time this Court, or any court, has been presented with
Mr. Dorsey’s actual innocence of capital murder. Moreover, this is the first time any
Court has been presented with compelling evidence, from independent, consistent
experts, that Mr. Dorsey was experiencing drug psychosis the night of the crime and
thus incapable of deliberation – the requisite intent for capital murder. Not only did
Mr. Dorsey’s trial counsel fail to present this evidence and argument, so did his post-
conviction counsel during 29.15 proceedings. This Court may review Mr. Dorsey’s
claims pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).1 In any event, because Mr.
1
Virtually all state courts have adopted a rule similar to Martinez, allowing a
prisoner to receive plenary state post-conviction review of ineffectiveness assistance
of trial counsel claims that were defaulted due to the incompetence of state post-
conviction counsel. It is an open and unresolved question as to whether this Court
should adopt Martinez and allow an ineffectiveness of trial counsel claim to be
reviewed by way of habeas corpus under Rule 91 if the claim is defaulted due to the
ineffectiveness of 29.15 motion court counsel. This Court in prior Rule 91 actions,
has declined to address this important question despite the fact the Court has
consistently adopted other procedural default rules crafted by the Supreme Court in
federal habeas corpus cases. See State ex rel. Ray v. Cassady, No. SC94327; State
ex rel. Middleton v. Pash, No. SC95005.
2
Dorsey is actually innocent of capital murder, this Court must review his Sixth
Amendment claims on the merits regardless of any procedural bars that may be
alleged by Respondent.
This Court has never reviewed this claim on the merits. When presented with
this claim in Mr. Dorsey’s postconviction proceedings, this Court failed to heed
United States Supreme Court guidance on determining whether counsel was
conflicted and acted adversely to Mr. Dorsey’s interests under Cuyler v. Sullivan,
446 U.S. 335 (1980) and United States v. Cronic, 466 U.S. 648 (1984). Moreover,
in reviewing Mr. Dorsey’s convictions, this Court’s opinion failed to mention the
Fifth or Sixth Amendment or the Supreme Court case law delineating the rights
granted by each in dismissing the claim without any analysis on the merits. The
federal Constitution demands more.
Rather than determine Mr. Dorsey’s claims on the merits, this Court held (1)
that the mechanism of appointment did not constitute conflict of ineffective
assistance by inference, and (2) that counsel’s performance was not deficient because
the circuit court, applying the incorrect test, found Mr. Dorsey’s counsel in a
While 28 U.S.C. §2254(e) generally precludes presentation of evidence in federal

court to establish a claim of constitutional error at trial in federal habeas corpus
proceedings, see Shinn v. Ramirez, 596 U.S. ___, 142 S. Ct. 1718 (2022), there is no
similar statutory provision under Missouri law to preclude presentation of evidence
of ineffective assistance of post-conviction counsel to establish cause for the
procedural default of a claim of ineffective assistance of trial counsel.
3
postconviction hearing subjectively “credible.” Dorsey v. State, 448 S.W.3d 276,
300 (Mo. 2014), attached hereto as Exhibit 3. This ignores Supreme Court guidance
in two ways. First, looking to the mechanism of appointment rather than the
substance of the representation contravenes Cronic and is an improper test for
determining whether Mr. Dorsey was adversely affected as a result of a conflict of
interest and ineffective assistance. See Cronic, 466 U.S. at 652 (holding that an
inferential approach to determining whether a petitioner’s right to effective
assistance of counsel was violated is error). Second, the Supreme Court is clear that
courts must apply an objective, not subjective, standard for evaluating Sixth
Amendment claims, and that the barometer is prevailing professional norms, not a
matter of personal persuasion. See Cuyler, 466 U.S. at 346; Strickland v.
Washington, 466 U.S. 668, 687–88 (1984) (“When a convicted defendant complains
of the ineffectiveness of counsel’s assistance, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness.”)
(emphasis added).
Moreover, because this Court ran afoul of Cronic by denying the Cuyler
conflict claim by inference, this Court instead applied the incorrect test, the
Strickland standard for ineffective assistance. Cuyler asks a court to evaluate
whether counsel’s conflict adversely affected the client. See Cuyler, 466 U.S. at 346;
State v. Roll, 942 S.W.2d 370, 377 (Mo. banc 1997). Unlike a Strickland challenge
4
to counsel’s representation, which requires ineffective assistance a petitioner to
show ineffective assistance and prejudice, prejudice is presumed if the defendant
shows that both a conflict and adverse effect have been met. Strickland, 466 U.S. at
692. Of course, under either test, counsel’s representation fell far below what the
Sixth Amendment requires. In evaluating whether counsel’s actions adversely
affected Mr. Dorsey, counsel should not have been afforded Strickland deference
after counsel explicitly admitted their strategy in Mr. Dorsey’s case was uninformed
by any investigation. See 466 U.S. at 689–90; Sears v. Upton, 561 U. S. 945, 953-
54 (2010) (holding that the objective reasonableness of trial counsel’s tactical
decisions must be viewed in the context of the objective reasonableness of counsel’s
investigation). This is not a matter of credibility, and the appropriate analysis rejects
such credulousness. Wiggins v. Smith, 539 U.S. 510, 521 (2003) (holding that the
“deference owed such strategic judgments” of trial counsel is “defined … in terms
of the adequacy of the investigations supporting those judgments”). This petition is
an opportunity for this Court to rectify the error and fully consider the rights afforded
to Mr. Dorsey under Fifth and Sixth Amendments to the United States Constitution.
When this Court evaluates this claim on the merits, it will find Mr. Dorsey’s
appointed counsel, laboring under a conflict of interest due to a flat fee compensation
arrangement, adversely affected their client by pressuring him to plead guilty to a
capital crime he could not have committed. They also failed to meet any objective
5
test for reasonableness, especially given that without any fact or mitigation
investigation, there could have been none of the informed, strategic decision-making
to which Strickland gives deference. See Cronic, 466 U.S. at 468; Strickland, 466
U.S. at 681. Without even consultation with their client, let alone the appropriate
experts, counsel failed to: (1) Learn that their client could not have committed first-
degree murder; (2) Engage in and effectively represent Mr. Dorsey in plea
negotiations with that information; (3) Effectively represent Mr. Dorsey during the
sentencing proceedings by investigating mitigating evidence; and (4) Counter the
government’s misleading and inaccurate representations to the jury during the
sentencing phase, directly resulting in a death sentence. Because of the conflict of
interest with their client, Mr. Dorsey’s trial counsel failed “to require the
prosecution’s case to survive the crucible of meaningful adversarial testing.” Cronic,
466 U.S. at 656. The adverse effect of the conflict of interest is glaring – Mr. Dorsey
was sentenced to death for a crime he was incapable of admitting. This Court must
either overturn Mr. Dorsey’s unconstitutional death sentence or refer this claim for
further evidentiary development to ensure Mr. Dorsey’s federal constitutional rights
are upheld.
PROCEDURAL HISTORY
On March 10, 2008, Brian Dorsey, on the advice of counsel, and without any
plea agreement, entered two pleas of guilty to first-degree murder for the deaths of
6
Ben and Sarah Bonnie. Jury selection for his capital sentencing hearing commenced
before the Thirteenth Circuit Court for the State of Missouri on August 26, 2008.
Two days later, on August 28, 2008, the jury returned a verdict recommending that
Mr. Dorsey be sentenced to death. The sentence was formally imposed on December
1, 2008.
This Court affirmed Mr. Dorsey’s death sentences on direct appeal on July 16,
2010. State v. Dorsey, 318 S.W.3d 648 (Mo. 2010). The United States Supreme
Court denied certiorari on November 29, 2010. Dorsey v. Missouri, 562 U.S. 1067
(2010).
On March 7, 2011, Mr. Dorsey filed an Amended Motion to Vacate, Set
Aside, or Correct the Judgment and Sentences pursuant to Mo.S.Ct.R. 29.15. An
evidentiary hearing was held in the Circuit Court on December 7-9, 2011. On
December 31, 2012, that court denied the motion. Mr. Dorsey appealed to this Court,
which affirmed on November 12, 2014. Ex. 3, Dorsey v. State, 448 S.W.3d 276
(Mo. 2014) as modified on denial of reh'g (Dec. 23, 2014).
On December 22, 2015, Mr. Dorsey filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. §2254 in the Western District of Missouri, challenging his
convictions and death sentences. On July 26, 2018, the district court entered an order
denying as procedurally defaulted one of the claims, and on September 27, 2019, the
district court denied all remaining claims in the petition, denied an evidentiary
7
hearing, denied expansion of the record, and denied a certificate of appealability on
any issue.
Mr. Dorsey filed his Application for a Certificate of Appealability on July 30,
2020, and on February 1, 2021, the United States Court of Appeals for the Eighth
Circuit issued an order granting a certificate of appealability in part. Oral argument
was held remotely on January 12, 2022, and the Eighth Circuit issued its opinion
denying Mr. Dorsey relief on April 7, 2022. A petition for rehearing was denied on
June 16, 2022, and the Court’s mandate issued on June 23, 2022.
Mr. Dorsey filed his petition for a writ of certiorari on November 14, 2022.
The Supreme Court of the United States denied certiorari, and, on that same date,
the State of Missouri moved this Court to set an execution date for Mr. Dorsey. After
Mr. Dorsey’s Missouri attorney declined to continue to represent Mr. Dorsey in state
court proceedings, undersigned counsel entered her appearance and sought an
extension from this Court to respond to the State’s motion on March 15, 2023. This
Court granted Mr. Dorsey’s extension motion. Another extension was sought on
May 15, 2023, and this Court granted another extension to respond to June 21, 2023.
Mr. Dorsey’s response to the State’s motion to set an execution date was filed on
June 21, 2023. On June 22, 2023, the State filed a Reply in Support of its Motion to
Set an Execution Date. On June 27, 2023, Mr. Dorsey sought and obtained leave to
file a Sur-response and filed said Sur-response.
8
The Missouri Supreme Court issued an order and a warrant for execution on
December 13, 2023, setting the execution date for April 9, 2024.
STATEMENT OF FACTS
Brian Dorsey turned himself in to the police on December 26, 2006, and
during custodial interrogation, acknowledged that he was “the right guy” for the
police to be talking to concerning the deaths of the Bonnies. Ex. 1, Trial Tr. at 900.
Due to his days’ long insomnia, extreme level of intoxication from his crack cocaine
binge, and drinking large quantities of both beer and vodka, however, he did not
recall the events of the night of the murders and was unable to specifically confess
to either of the murders.
Mr. Dorsey was appointed counsel by the Missouri Public Defender Office.
Counsel were paid a low, flat fee for their representation; thus, counsel were paid
the same amount whether they did nothing for their client or worked the thousands
of hours that is typical in a capital trial. Pressured by conflicted counsel, Mr. Dorsey
was persuaded to plead guilty to two counts of first-degree murder on March 10,
2008. This was despite, as discussed further below and supported by the expert
reports attached, his inability to have committed capital murder, see Section III,
infra, a fact counsel could have learned had they asked Mr. Dorsey the basic
questions that counsel are required to ask in order to be effective. See ABA Guideline
10.5 (“Counsel at all stages of the case should engage in a continuing interactive
9
dialogue with the client concerning all matters that might reasonably be expected to
have a material impact on the case”).
The plea was offered in exchange for nothing, leaving Mr. Dorsey vulnerable
to a death sentence. Counsel was advised by colleagues that this was “a really bad
idea, that every time anybody had done that kind of procedure, the result had been
abominable.” See Ex. 2, 29.15 Tr., at 541. See also Ex. 8, Affidavit of Janet
Thompson. But Slusher and McBride proceeded with their ill-advised, albeit
financially sound, plan regardless.
Counsel did not talk to Mr. Dorsey about the possibility of pleading guilty or
provide him any such advice until the morning of March 10 – the morning of the
plea hearing. At that time, counsel spoke to Mr. Dorsey briefly, while Mr. Dorsey
was in the holding cell at the court. Mr. Dorsey was not able to consult with his
parents or anyone else, and counsel told him he had only the time before the hearing
to think over this life-changing decision. Relying on his attorneys to have his best
interests at heart, Mr. Dorsey pleaded guilty.
Despite a supposed strategy of relying on the jury at a sentencing proceeding
to prevent a capital sentence, conflicted counsel failed to conduct any mitigation
investigation to advocate for Mr. Dorsey’s life at that sentencing proceeding. After
a sentencing trial that lasted only two days and, of course, failed in any meaningfully
way to be adversarial, a jury sentenced Mr. Dorsey to death on August 28, 2008.
10
When given the opportunity to explain and defend his performance and
representation of Mr. Dorsey, Mr. Slusher’s comments only proved his fundamental
failure to abide by professional norms and abject ineffectiveness. He admitted that
he did not hire an investigator or a mitigation specialist – despite the fact that both
are required by ABA Guidelines governing capital representation and professional
norms – because it was not “personally convenient” for him, and despite the fact that
$4,800 was provided for an investigator by the Public Defender Office. Ultimately,
this meant the jury was never presented with an alternative narrative – much less the
truth: that Brian Dorsey was experiencing drug psychosis and not guilty of first-
degree murder.
ARGUMENT
At closing, one of Mr. Dorsey’s appointed attorneys, Chris Slusher, said to
the jury, “[Brian Dorsey] got up here today and told you about what happened and
about himself. But there’s no real explanation. There just isn’t. Some things—some
things are unexplainable.” Ex. 1, Trial Tr. at 1014 (emphasis added).
But that simply is not true here. There is an explanation, the details of which
are set forth below. Things are only unexplainable where an attorney has failed to
conduct any, let alone a reasonable, investigation. Things are only unexplainable
where an attorney fails to consult their own client, their own expert, or other
appropriate experts, or otherwise provide effective assistance as unconflicted
11
advocates on behalf of their client as required by the Sixth Amendment. There is an
explanation for what likely occurred the night of December 23, 2006; if his attorneys
had acted as advocates on behalf of their client, Mr. Dorsey would have been able
to present a viable and compelling defense to first-degree murder under Missouri
law—diminished capacity due to mental disease or defect—to the jury in a guilt-
phase trial rather than plead to a crime of which he was innocent.2 The only thing
still awaiting explanation is why the Missouri courts have failed to evaluate this
compelling claim on the merits and a man innocent of first-degree murder remains
on death row. This case is an opportunity to follow the dictates of the United States
Supreme Court and the mandates of the United States Constitution and review Mr.
Dorsey’s petition on the merits.
Mr. Dorsey’s attorneys, Chris Slusher and Scott McBride, as well the
Missouri Public Defender Office that appointed them, fell well below the prevailing
professional norms for capital appointment and representation. But on Mr. Dorsey’s
first opportunity to raise such claims, the Missouri courts made the same error as the
Sixth Circuit in United States v. Cronic, 466 U.S. 648 (1984). In Cronic, the Sixth
Circuit looked to the manner of appointment, rather than the representation in that
specific case, to determine by inference that there had been ineffective assistance on
2
Even if Mr. Dorsey had still been convicted of the same charge, the truth of Mr.
Dorsey’s drug psychosis and diminished capacity would have been available to the
jury as a mitigator at the penalty phase.
12
counsel. The other criteria used by the circuit court and cited by this Court, the
“credibility” of Mr. Dorsey’s attorneys, is not a relevant factor, as adverse effect and
ineffectiveness is an objective test based on the actions of the attorneys against
prevailing professional norms. See Strickland, 466 U.S. at 688. Had this court heard
the claim on the merits, it would have been clear that Mr. Dorsey’s attorneys, by
their own admission, did not make informed, reasoned strategy decisions based on
investigation and appropriate expert consultation, and thus did not deserve the
deference reserved for effective attorneys under Strickland.
If effective attorneys had represented Mr. Dorsey, they would have not made
the tragic error of convincing Mr. Dorsey to plead guilty to first degree murder,
which he was cognitively incapable of committing, in exchange for nothing from
prosecutors. Mr. Dorsey’s trial proceedings failed to meet the bar of a meaningful
adversarial process. See Powell v. Alabama, 287 U.S. 45, 68–69 (1932); Strickland,
466 U.S. at 685 (“[C]ounsel’s skill and knowledge is necessary to accord defendants
the ‘ample opportunity to meet the case of the prosecution to which they are
entitled.’”) (quoting Adams v. United States ex rel. McCann, 317 U.S. at 275, 276
(1942)).
This Court has thus far failed to analyze whether counsel’s conflict of interest
led to adverse effects or ineffective assistance based on their representation rather
than the manner of appointment. “Principles of comity in our federal system require
13
that the state courts be afforded the opportunity to perform their duty.” Webb v.
Webb, 451 U.S. 493, 499 (1981). Therefore, this Court should take this opportunity
to apply the appropriate standards required by the Fifth and Sixth Amendments to
the Constitution and overturn the death sentence, or appoint a Special Master
pursuant to Supreme Court Rule 68.03 to conduct an evidentiary hearing on the
merits applying the appropriate constitutional analysis.
GOVERNING LAW
“The right to counsel guaranteed by the Sixth Amendment is a fundamental
right.” Cuyler v. Sullivan, 446 U.S. 335, 343 (1980) (citing Argersinger v. Hamlin,
407 U.S. 25, 29–33 (1972)). Because the “‘Assistance of Counsel’ guaranteed by the
Sixth Amendment contemplates that such assistance be untrammeled and
unimpaired,” the effective assistance of an attorney “has two components:
competence and conflict-free representation.” Glasser v. United States, 315 U.S. 60,
70 (1942); Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994) (citing Wood v.
Georgia, 450 U.S. 261, 271 (1981)). The right to conflict-free representation is a
right to counsel’s undivided loyalty, and it is evaluated by a different standard than
one measuring competence. See Cuyler v. Sullivan, 446 U.S. at 348–49; Wood, 450
U.S. at 271. The Supreme Court has stated that to establish a Sixth Amendment
violation based on a conflict of interest, a defendant must make two showings: (1)
that counsel actively represented conflicting interests, and (2) that the actual conflict
14
of interest adversely affected the lawyer’s performance. Berry v. United States, 293
F.3d 501, 503 (8th Cir. 2002). Unlike a challenge to counsel’s competency, prejudice
is presumed if the defendant shows both prongs have been met. See Glasser v. United
States, 315 U.S. 60, 76 (1942) (“The right to have the assistance of counsel is too
fundamental and absolute to allow courts to indulge in nice calculations as to the
amount of prejudice arising from its denial.”); Strickland, 466 U.S. at 692.
I. MR. DORSEY’S CLAIMS OF CONFLICT OF INTEREST AND

RESULTING INEFFECTIVE ASSISTANCE HAVE NEVER BEEN
ADJUDICATED ON THE MERITS IN MISSOURI COURTS
A. United States v Cronic demands more than determining effective

assistance by inference, particularly given Missouri’s lack of
compliance with governing professional norms for capital
representation.
Mr. Dorsey’s conflict of interest and ineffective assistance of counsel have
never received a ruling on the merits, in violation of his Fifth and Sixth Amendment
rights. While these claims were before this Court previously, on review of Mr.
Dorsey’s state post-conviction petition, this Court conducted only a cursory review
and dismissed them without evaluating them on the merits and without abiding by
the controlling U.S. Supreme Court precedent. This petition presents this Court the
opportunity to properly hear these claims on the merits for the first time, and to
prevent a manifest injustice. See Claim IV, infra.
This Court held:
15
“To prevail on a claim that a conflict of interest violates a movant’s
right to counsel, the movant ‘must demonstrate that an actual conflict
of interest adversely affected counsel’s performance.’ State v. Roll, 942
S.W.2d 370, 377 (Mo. banc 1997). No Missouri court has found that a
flat fee arrangement creates a conflict of interest, and Mr. Dorsey does
not demonstrate an actual conflict that adversely affected counsel’s
performance.”
Ex. 3, Dorsey v. State, 448 S.W.3d 276, 300 (Mo. 2014). In other words, rather than
looking to the facts of this case and U.S. Supreme Court precedent, this Court relied
on what other Missouri courts, including this one, had held in other cases. This
rationale ignores the first prong of the test for a conflict of interest under Cuyler v.
Sullivan via inference; if other Missouri courts have not held so, there could not have
been a conflict here.
It should be noted that other state supreme courts, after squarely addressing
the constitutional rights at stake and the facts before it, have held the opposite. See
e.g., State v. Cheatham, 296 Kan. 417, 452–53, 292 P.3d 318, 340 (2013). Only by
this Court refusing to evaluate the merits, consider the federal constitutional
protections, follow United States Supreme Court guidance, or analyze whether this
was indeed a conflict of interest on the facts before it, could this Court have
concluded that there was no adverse effect.
United States v. Cronic is explicit that courts may not, except in the most
extreme cases, look to the mechanism of appointment and the surrounding
circumstances and determine whether there was a conflict and counsel was
16
ineffective. See Cronic, 466 U.S. at 666 (discussing Powell v. Alabama as an
archetypal per se denial of the Sixth Amendment right to counsel). The Court notes
that the decision prohibiting courts from deciding ineffectiveness by inference rests
on the assumption that “[t]his case is not one in which the surrounding circumstances
make it unlikely that the defendant could have received the effective assistance of
counsel.” Id.
That assumption, for numerous reasons, is inapplicable in this case, as the
circumstances of appointment here make it extremely unlikely that Mr. Dorsey
would have received effective assistance. First, Missouri is an extreme outlier in
maintaining absolutely no standards or qualifications for counsel to be appointed in
a capital case. See American Bar Association, State Standards For Appointment Of
Counsel In Death Penalty Cases, available at: https://www.americanbar.org/
content/dam/aba/administrative/death_penalty_representation/state-standards-
memo.pdf (last up-dated May 2023).
Second, the State of Missouri, at the time of Mr. Dorsey’s trial, and presently,
has no policies, statutes, or regulations in place to ensure the Sixth Amendment
rights of capital defendants, making the state wildly out of compliance with the
professional norms governing capital representation. In 2003, the American Bar
Association (ABA) updated its Guidelines for the Appointment and Performance in
Death Penalty Cases, which it had drafted and revised over the course of several
17
decades and which reflected a national consensus among capital defense
practitioners as to the obligations of counsel for capital cases. See ABA Guidelines
for the Appointment and Performance in Death Penalty Cases (2003) (hereinafter
“ABA Guideline(s)”). The Supreme Court has consistently relied upon guidelines
from the ABA to inform the inquiry into reasonable professional conduct. See e.g.,
Padilla v. Kentucky, 559 U.S. 356, 366–67 (2010) (“We long have recognized that
the ‘[p]revailing norms of practice as reflected in American Bar Association
standards and the like . . . are guides to determining what is reasonable. . . .’”
(omissions in original) (quoting Strickland, 466 U.S. at 688)); see also, e.g., Bobby
v. Van Hook, 558 U.S. 4 (2009) (per curiam).
The State of Missouri fails to meet the ABA Guidelines and protect
constitutional rights in multiple ways. First, there is a violation of Guideline 2.1 –
Adoption and Implementation of a Plan to Provide High Quality Legal
Representation in Death Penalty Cases, which requires “a plan formalizing the
means by which high quality legal representation in death penalty cases” that should
be structured “to ensure that counsel defending death penalty cases are able to do so
[ ] under conditions that enable them to provide zealous advocacy in accordance with
professional standards.” While Missouri does designate the Missouri Public
Defender Office to be the “Responsible Agency” which appoints counsel, the Public
18
Defender Office does none of the tasks required by a Responsible Agency, which,
among others, includes:
1. recruit and certify attorneys as qualified to be appointed to represent

defendants in death penalty cases;
2. draft and periodically publish rosters of certified attorneys; [ ]
5. monitor the performance of all attorneys providing representation in
capital proceedings;
6. periodically review the roster of qualified attorneys and withdraw
certification from any attorney who fails to provide high quality legal
representation consistent with these Guidelines;
7. conduct, sponsor, or approve specialized training programs for
attorneys representing defendants in death penalty cases;
ABA Guideline 3.1(E).
Third, Missouri maintains no standards for the qualification or appointment
of counsel in a capital case, nor does it require any specialized training on ongoing
legal education, all in violation of prevailing professional norms, as codified in ABA
Guidelines 5.1 and 8.1. The Responsible Agency “should develop and publish
qualification standards for defense counsel in capital cases. These standards should
be construed and applied in such a way as to further the overriding goal of providing
each client with high quality legal representation.” 5.1(A). In many states, the
qualifications are codified by the Supreme Court, see e.g., Rule 13, Section 3 of the
Rules of the Tennessee Supreme Court; in other states, the Responsible Agency
maintains these qualifications, see e.g., the standards, revised in 2019, promulgated
by the Oregon Public Defense Services Commission, available at
https://www.oregon.gov/opds/provider/ StandardsBP/AttorneyQualification.docx.
19
Missouri has neither. Nor does it have a mechanism to remove ineffective
attorneys, as described in ABA Guideline 7.1. Because the Missouri Public Defender
Office additionally fails to “monitor the performance of all defense counsel to ensure
that the client is receiving high quality legal representation,” ineffective attorneys in
Missouri are free to continue being appointed to capital cases. Id. at 7.1(A).
Thus, this Court’s reliance on no Missouri courts having found a flat fee to be
a conflict of interest is an inferential determination that is wholly insupportable.
There can be no assumption that capital cases in Missouri are not ones “in which the
surrounding circumstances make it unlikely that the defendant could have received
the effective assistance of counsel.” Cronic, 466 U.S. at 666. This Court must hear
Mr. Dorsey’ claims on the merits, in order to determine whether, “based on the
actual conduct of the trial, [ ] there was a breakdown in the adversarial process that
would justify a presumption that respondent’s conviction was insufficiently reliable
to satisfy the Constitution.” Cronic, 466 at 662 (emphasis added).
B. “Credibility” is not a measure of effective assistance, and counsel

fell well below an objective standard of reasonableness under
prevailing professional norms.
In denying Mr. Dorsey’s post-conviction petition claim that trial counsel was
conflicted and ineffective, this Court stated, “The motion court found their testimony
credible and stated that both attorneys expressed a sincere desire to provide an
effective defense.” Ex. 3, Dorsey v. State, 448 S.W.3d 276, 300 (Mo. 2014).
20
This is not the Sixth Amendment test for determining whether there was an
adverse effect based on a conflict of interest or whether counsel provided ineffective
assistance. The Supreme Court has been exceptionally clear that “[t]he proper
measure of attorney performance remains simply reasonableness under prevailing
professional norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland
at 688). Moreover, it is an objective test, not a subjective matter of credibility.
Strickland at 688. And the Supreme Court has cautioned post-conviction courts from
placing undue reliance on the assumed reasonableness of counsels’ defense theories
where counsels’ constitutionally deficient investigation should have called into
question the reasonableness of those theories. Sears v. Upton, 561 U.S. 945, 953–54
(2010).
In addition, “a sincere desire” is not a substitute for effective representation
or subjecting the government’s case to adversarial testing. The proper analysis is a
fact-based one, where “the deference owed such strategic judgments [is based] in
terms of the adequacy of the investigations supporting those judgments.” Wiggins,
539 U.S. at 521 (evaluating whether counsel’s decision “was itself reasonable” in
light of the supporting investigation, not counsel’s intent) (emphases in the original).
This Court’s opinion in Dorsey v. State was contrary to clear controlling
holdings from the United States Supreme Court. Counsels’ decision to not staff Mr.
Dorsey’s case as required by prevailing professional norms with an investigator and
21
mitigation specialist because it was personally convenient not to do so deserves no
deference under Strickland; further, this complete professional lapse undergirded
every ill-fated and uninformed decision made afterwards, resulting in an
unconstitutional capital sentence for Mr. Dorsey. 3 Ex. 2, 29.15 Tr. at 571; see
Wiggins 539 U.S. at 521. This Court should take this opportunity to ensure that a
citizen of the State of Missouri is not executed before his meritorious Fifth and Sixth
Amendment claims have been adequately adjudicated.
II. MR. DORSEY’S COUNSEL HAD A FUNDAMENTAL CONFLICT

OF INTEREST THAT ADVERSELY AFFECTED THEIR
REPRESENTATION, RESULTING IN INEFFECTIVE
ASSISTANCE
“The Sixth Amendment right to counsel requires effective assistance by an
attorney, which has two components: competence and conflict-free representation.”
Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994) (citing Wood v. Georgia, 450
U.S. 261, 271 (1981)). The right to conflict-free representation is a right to counsel’s
undivided loyalty. See Cuyler v. Sullivan, 446 U.S. 335, 348–49 (1980); Wood, 450
U.S. at 271.
Although the test articulated in Cuyler involved an attorney representing two
clients with conflicting interests, the presumption of prejudice extends to conflicts
3
This testimony also should have destroyed any notions of counsels’ credibility or
sincerity to provide effective representation.
22
between a client and his lawyer’s personal, professional, or financial interests. See
e.g., United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994); United States v. Tatum,
943 F.2d 370, 375 (4th Cir. 1991). Missouri’s state rules governing professional
responsibilities state that a lawyer “shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent conflict of interest exists if
there is a significant risk that the representation will be materially limited by [ ] a
personal interest of the lawyer.” See Rule 4-1.7.
While flat fee and contingency fee contracts may not always result in
violations of the Sixth Amendment, if a “defense attorney was required to make a
choice advancing his own interests to the detriment of his client’s interests,” an
actual conflict of interest exists, meeting the first prong of the Cuyler test. United
States v. Horton, 845 F.2d 1414, 1419 (7th Cir. 1988). The Kansas Supreme Court
has held a flat fee compensation system, such as in Mr. Dorsey’s case, sets up an
actual conflict of interest in violation of the right to effective representation. See
State v. Cheatham, 296 Kan. 417, 453, 292 P.3d 318, 340 (2013) (holding that
“[ABA] Guidelines unequivocally disapprove of flat fees in death penalty cases
precisely because such fee arrangements pit the client’s interests against the lawyer’s
interest in doing no more than what is minimally necessary to qualify for the flat
payment.”).
23
Cuyler’s second prong, requiring an adverse effect, is satisfied where an
attorney’s conflict of interest causes a “lapse in representation contrary to the
defendant’s interests.” Wilson v. Mintzes, 761 F.2d 275, 286 (6th Cir. 1985) (quoting
Sullivan v. Cuyler, 723 F.2d 1077, 1086 (3d Cir. 1983)). Had this Court heard Mr.
Dorsey’s claim on the merits, there is simply no question that adverse effect was
demonstrated on the record. Indeed, the lapse in representation and adverse effects
were so egregious that Mr. Dorsey can easily “identify a plausible alternative
defense strategy or tactic that [his] defense counsel might have pursued, show that
the alternative strategy was objectively reasonable under the facts of the case, and
establish that the defense counsel’s failure to pursue that strategy or tactic was linked
to the actual conflict.” Plunk v. Hobbs, 766 F.3d 760, 764 (8th Cir. 2014) (en banc)
(quotations omitted); see also United States v. Stantini, 85 F.3d 9, 16 (2d Cir. 1996)
(holding that after an actual conflict is established, a petitioner need not show
prejudice, rather ‘that some plausible alternative defense strategy or tactic might
have been pursued but was not and that the alternative defense was inherently in
conflict with or not undertaken” due to the attorney’s financial interests). See Section
III, infra.
The contract structure under which Slusher and McBride were appointed
created clear conflicts of interest and clearly affected their representation of Mr.
Dorsey’s interests. That defense counsel stood to benefit financially if Mr. Dorsey
24
pleaded guilty rather than use attorney hours and resources on a guilt phase
proceeding is indisputable. This reality undoubtedly led to counsel’s failure to
effectively act as an advocate for Mr. Dorsey in any way. Slusher and McBride did
not meet with their client to substantively discuss the night of the offense or ask
necessary, and basic, questions before convincing Mr. Dorsey to plead guilty, as that
may have uncovered facts which necessitated a guilt-phase trial. They never
discussed a possible plea, or provided Mr. Dorsey any advice about a plea, before
the morning of the plea hearing, when Mr. Dorsey was left with no time to think it
over, consider any questions he should ask and what consequences he needed to be
aware of, or consult with his family. On top of extreme professional dereliction,
deciding to gamble with Mr. Dorsey’s life on a penalty phase proceeding and then
refusing to request funds to staff the team or do any mitigation investigation is
clearly ineffective and a violation of professional norms.
Both of these actions, as adverse as they were to Mr. Dorsey, were sound fiscal
decisions under the terms of counsels’ contracts. The flat fee contract in this case
created a conflict of interest between Mr. Dorsey’s right to effective representation
and his attorneys’ financial welfare; this is especially so as both Slusher and
McBride were starting their own private practices just as they were appointed to Mr.
Dorsey’s case. This case is the object lesson for why the ABA Guideline has stated
25
that “Flat fees, caps on compensation, and lump-sum contracts are improper in death
penalty cases.” See ABA Guideline 9.1(B)(1).
Given the financial and personal conflicts of interest under which Slusher and
McBride represented Mr. Dorsey, denying Mr. Dorsey a guilt-phase proceeding, “it
is virtually impossible for a reviewing court to determine what evidence would have
been presented [ ] or how the presentation of testimony might have been affected by
trial counsel’s conflicting interest.” United States v. Del Muro, 87 F.3d 1078, 1080
(9th Cir. 1996). Indeed, as discussed below, trial counsel failed to investigate and
present a wealth of guilt-phase evidence that supported a lesser-degree charge, not
eligible for the death penalty, that has since been uncovered (and was so easily
discoverable at the time of Mr. Dorsey’s trial, if counsel could have just asked their
client a few simple questions). See section III, infra.
“The Sixth Amendment right to counsel has been interpreted to provide for
representation that is ‘free from conflicts of interest or divided loyalties.’” United
States v. Reed, 179 F.3d 622, 624 (8th Cir.1999) (quoting United States v. Acty, 77
F.3d 1054, 1056 (8th Cir.1996)). Mr. Dorsey was denied his right to un-conflicted,
effective representation. The perverse incentives of the contract and the adverse
effect on representation resulted in divided loyalties and the subsequent denial of
any advocacy on Mr. Dorsey’s behalf.
26
Because the fee arrangement with Mr. Dorsey’s counsel created a conflict of
interest adversely affecting their representation, first in having Mr. Dorsey plead
guilty to a crime he could not have committed, and then failing to mount any defense
in the sentencing phase proceeding, Mr. Dorsey’s conviction and sentence are
unreliable and in violation of his constitutional right to effective assistance. And, as
this Court has failed to hear this claim on the merits and instead dismissed it in a
cursory opinion that squarely violates United States v. Cronic, this Court must act to
ensure Mr. Dorsey is not executed without having his Sixth Amendment rights
vindicated. See 466 U.S. at 662.
A. Representation in this Case Fell Well Below the Prevailing

Professional Norms from the Beginning.
“While a criminal trial is not a game in which the participants are expected to
enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners
to gladiators.” United States v. Cronic, 466 U.S. 648, 656–57 (1984) (quoting United
States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975)).
The ABA Guidelines are clear about what is required of capital counsel after
appointment. As soon as possible after counsel is appointed and/or capital charges
are brought, counsel must meet with their client and should seek to appoint an
investigator and mitigation specialist to effectively advocate for the client and
present all relevant facts and mitigation to jurors. ABA Guidelines cmt. 10.4(B)(2);
Andrus v. Texas, 140 S. Ct. 1875, 1881 (2020).
27
However, Mr. Dorsey’s counsel testified that the funding structure meant that
they did not use investigative services or have an investigator or mitigation specialist
on the team, despite prevailing professional guidelines. Moreover, that decision
deserves no deference; while the flat fee prevented them from using investigative or
mitigation services by those in their offices, Slusher testified that he chose not to
appoint an investigator or mitigation specialist because it would have been
personally inconvenient. While unclear how this lends to counsels’ credibility and
personal intent, more importantly, these decisions are not remotely objectively
reasonable given prevailing professional norms and were not based on any strategic,
informed decisions, as required by Strickland.
ABA Guideline 4.1(A), which governs the defense team, states:
1. The defense team should consist of no fewer than two attorneys

qualified in accordance with Guideline 5.1, an investigator, and a
mitigation specialist.
2. The defense team should contain at least one member qualified by

training and experience to screen individuals for the presence of mental
or psychological disorders or impairments.
In this case, neither of Mr. Dorsey’s trial attorneys were qualified, as there
were no qualifications. There was no investigator or mitigation specialist. The failure
to appoint either were counsel’s choice, as the Missouri Public Defender would have
paid for the appointment and case work of a mitigation specialist and an experienced
capital investigator. Counsel chose not to use any investigative or mitigation
28
assistance, even when it was provided for them. See Ex. 4, Affidavit of James L.
Miller. Thus, all decisions Mr. Dorsey’s trial counsel made must be evaluated in
light of counsels’ failure to adequately conduct a factual or mitigation investigation.
This egregious professional neglect resulted in every subsequent decision counsel
made being uninformed by fact or strategy.4
The unconstitutional denial of adverse effect and effective assistance was
apparent from the testimony from the evidentiary hearing. There was no strategy
behind failing to investigate and advocate for Mr. Dorsey; there were merely
concerns about the personal finances and ease of defense counsel. Slusher stated that
an investigator, Rollin Thompson was working for him:
4
Unless, of course, all decisions are viewed in light of the financial conflict of
interest plaguing counsel, in which case the decisions make clear fiscal sense.
29
Ex. 2, 29.15 Tr. at 571.
When Mr. Slusher was asked further about Mr. Thompson’s role, he stated:
Ex. 2, 29.15 Tr. at 574.
The investigator who he employed in his office, Mr. Rollins, confirmed he did
no meaningful investigation work, other than speaking to handful of witnesses for
mitigation.
Ex. 2, 29.15 Tr. at 558.
30
This Court stated that, “there is no evidence that any instructions to Mr.
Thompson concerning his work on Mr. Dorsey’s case were based on finances.” Ex.
3, Dorsey, 448 S.W.3d at 300. However, the lack of instructions and lack of actions
are the clear evidence of the conflict-of-interest and adverse effect of that conflict.
What happened, or significantly did not happen, in Mr. Dorsey’s case is a far cry
from the “obligation to conduct a thorough investigation of the defendant’s
background,” Porter v. McCollum, 558 U.S. 30, 39 (2009) (per curiam), and the
requirement under prevailing professional norms that, “[w]ith respect to the
guilt/innocence phase, defense counsel must independently investigate the
circumstances of the crime and all evidence—whether testimonial, forensic, or
otherwise—purporting to inculpate the client.” ABA Guideline 1.1 cmt.
Ultimately, Slusher had an investigator working for him, who would have
been convenient for him to work with. Slusher claimed he did not work with him
because he could not afford to pay him. However, Slusher also refused investigative
assistance when it would have been provided without charge to him; an investigator
with capital experience would have worked on Mr. Dorsey’s case, had Slusher ever
allowed him to. See Ex. 4, Aff. James L Miller. But working with an outside
investigator who knew what capital work entailed, presumably, would have been
less “convenient,” as investigating this case would have required more hours of
work, and less pay. This is not a strategic decision; it is a failure at the most basic
31
level of representation. Thus, this Court erroneously concluded that counsel testified
that the flat fee payment in this case did not alter their representation; counsel
themselves testified that it did. Ex. 3, Dorsey, 448 S.W.3d at 300.
Failure to hire an investigator or put together a team, as required by prevailing
professional norms, to ensure that Mr. Dorsey could meet the government’s
allegations against him cannot be considered a strategic judgment, as that judgment
was not and could not have been based on a reasonable investigation. Williams v.
Taylor, 529 U.S. 362, 390 (2000). This Court should hear this claim on the merits,
as Mr. Dorsey was denied his constitutional right to effective representation under
the Sixth Amendment. See Strickland, 466 U.S. at 688.
B. Counsel’s Conflict of Interest Resulted in a Guilty Plea, Given in

Exchange for Nothing, for a Crime Mr. Dorsey Could Not Have
Committed.
Slusher and McBride’s advising Mr. Dorsey to plead guilty with death still on
the table violated best practices (ABA Guideline 10.9.2 cmt at 1045: “If no written
guarantee can be obtained that death will not be imposed following a plea of guilty,
counsel should be extremely reluctant to participate in a waiver of the client’s trial
rights.”) and the advice of more experienced capital practitioners. Ex. 2, 29.15 Tr. at
541. Further, their decision in this case is indefensible – and cannot be considered a
reasonable strategic decision pursuant to Strickland – because it was not informed
by any investigation.
32
The adversarial process “will not function properly unless defense counsel has
done some investigation into the prosecution’s case and into various defense
strategies.” See Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). The complete
failure of Mr. Dorsey’s trial counsel “to require the prosecution’s case to survive the
crucible of meaningful adversarial testing” could not have been reasonable; counsel
was operating entirely uninformed by any independent investigation of his client’s
background or the circumstances of the crime. See Cronic at 656; Ex. 3, Dorsey, 448
S.W.3d at 292 (“Instead of pursuing a defense he believed would not work, Mr.
Slusher recommended that Mr. Dorsey plead guilty.”)
Counsel must “conduct a prompt investigation of the circumstances of the
case and . . . explore all avenues leading to facts relevant to the merits of the case.”
Doe v. Ayers, 782 F.3d 425, 434 (9th Cir. 2015) (alteration and internal quotation
marks omitted); see also, e.g., Weeden v. Johnson, 854 F.3d 1063, 1070 (9th Cir.
2017) (faulting counsel for failing to investigate psychological guilt-phase defense
with assistance of expert).Then, once counsel has conducted a reasonable
investigation, counsel may make strategic decisions based upon the information
gathered—including the decision to curtail further investigation. Simply put,
investigation must precede and inform strategy. See Wiggins, 539 U.S. at 521–22.
Counsel’s decisions warrant deference only when those decisions follow a “thorough
investigation of law and facts relevant to plausible options[.]” Strickland, 466 at
33
689–90. Such is not the case when counsel (1) adopts a strategy after an inadequate
investigation, and then (2) limits further investigation based on that ill-conceived
strategy. See Wiggins, 539 U.S. at 521–22.
The Supreme Court has determined that “[i]n assessing the reasonableness of
an attorney’s investigation . . . a court must consider not only the quantum of
evidence already known to counsel, but also whether the known evidence would lead
a reasonable attorney to investigate further.” Id. at 527. Failing to do any
investigation cannot be described as a reasonable exercise of professional judgment
or as “part of a calculated trial strategy, but is likely the result of either indolence or
incompetence.” Anderson v. Johnson, 338 F.3d 382, 393 (5th Cir. 2003) (internal
quotation marks and citation omitted). Slusher admitted as much himself, stating,
after failing to conduct any independent investigation, “I mean, I think it’s fair to
say it didn’t take me long to review the case and feel like the guilt phase of the case
was going to be difficult.” Ex. 2, 29.15 Tr. at 579.
34
...
Ex. 2, 29.15 Tr. at 662.
This is grossly ineffective. One of the primary duties of trial counsel is to
conduct a reasonable and independent investigation before determining strategy. See
Kimmelman, 477 U.S. at 384 (concluding that the adversarial process “will not
function properly unless defense counsel has done some investigation into the
prosecution’s case”). See also Elmore v. Ozmint, 661 F.3d 783, 786, 859 (4th Cir.
2011) (holding that counsel were ineffective for failing to conduct an independent
examination of the State’s evidence, when such evidence was central to conviction);
35
Thomas v. Clements, 789 F.3d 760, 769–71 (7th Cir. 2015) (finding counsel
ineffective when decision was made to accept State’s findings “without challenge
and basically doom the defense’s theory of the case”); Nealy v. Cabana, 764 F.2d
1173, 1177 (5th Cir. 1985) (“[T]his circuit has recognized that, at a minimum,
counsel has the duty to interview potential witnesses and to make an independent
investigation of the facts and circumstances of the case.”); Coleman v. Mitchell, 268
F.3d 417, 449 (6th Cir. 2001) (holding that “the independent obligation of defense
counsel to investigate” is required under the Sixth Amendment); ABA Guidelines
10.7 (“Counsel at every stage have an obligation to conduct thorough and
independent investigations relating to the issues of both guilt and penalty” including
investigation of guilt “regardless of any admission or statement by the client
concerning the facts of the alleged crime, or overwhelming evidence of guilt.”). See
also, e.g., ABA Standards for Criminal Justice—Defense Function (3d ed. 1993)
(“Defense counsel should conduct a prompt investigation of the circumstances of
the case and explore all avenues leading to facts relevant to the merits of the case. .
. .”).
Slusher was only able to quickly determine a strategy because he failed to
conduct the independent investigation required by the Sixth Amendment and chose
to leave unchallenged the allegations made by the State. This strategy, of course,
was the most fiscally sound, but left Mr. Dorsey without an advocate and
36
undermined the adversarial nature of the proceedings. See Kimmelman, 477 U.S. at
384.
1. Had Counsel Conducted Even Minimal Investigation, They Would

Have Known Mr. Dorsey was Not Guilty of First-Degree Murder
Though Slusher testified that he had received some records from the MSPD
and had initial impressions from a neuropsychologist,5 counsel cannot “abandon[]
their investigation of petitioner’s background after having acquired only
rudimentary knowledge of his history from a narrow set of sources.” Wiggins, 539
U.S. at 524. Nor should counsel have relied upon Mr. Dorsey’s statement to police
and the evidence provided to the defense from the government alone, without
independent investigation, as sufficient basis on which to determine defense
strategy. Sixth Amendment precedent and professional guidelines require capital
5
Notably, Slusher never testified as to what the referral question to the
neuropsychologist was. Neuropsychologists can do a range of different testing, and
if Slusher failed to ask the right referral questions, having done no investigation to
generate any questions, the neuropsychologist would not have been able to give
meaningful answers. Or at least not ones that Slusher would have understood.
Slusher testified that the neuropsychologist “indicated to me that there was no -- he
didn’t see any organic issues and no evidence of what he, I guess, would say would
be a serious mental disease or defect.” Ex. 2, 29.15 Tr. at 592. Slusher was aware
that Mr. Dorsey suffered from Major Depressive Disorder but was unaware that
Missouri law defines Major Depressive Disorder as a “serious mental disease or
defect.” Ex. 2, 29.15 Tr. at 665. Any resulting decisions based upon this uninformed
neuropsychologist consultation (especially considering Slusher hadn’t even
interviewed his own client to inform a referral question) deserve no Strickland
deference.
37
defense attorneys to expeditiously investigate all guilt/innocence issues, even if the
client admits or concedes guilt. See ABA Guidelines 10.7(A)(1):
“With respect to the guilt/innocence phase, defense counsel must

independently investigate the circumstances of the crime and all
evidence—whether testimonial, forensic, or otherwise—purporting to
inculpate the client. To assume the accuracy of whatever information
the client may initially offer or the prosecutor may choose or be
compelled to disclose is to render ineffective assistance of counsel.”
This is the standard against which reasonable decision by counsel can be
made; as such, Slusher’s decisions were not reasonable or justified. The Supreme
Court has repeatedly made clear that courts should “reject[] any suggestion that a
decision to focus on one potentially reasonable trial strategy” is “justified by a
tactical decision” when “counsel did not fulfill their obligation to conduct a thorough
investigation of the defendant’s background.” Sears, 561 U.S. at 954 (quoting
Williams, 529 U.S. at 396) (cleaned up). Had counsel done any basic investigation,
including simply asking their client some questions, they would have discovered
what trial counsel themselves recognized would have provided a defense: Mr.
Dorsey was suffering from drug psychosis at the time of the murders.
Ironically, Slusher was aware that psychosis would have been a defense. He
testified at the post-conviction hearing that, when asked about Major Depressive
Disorder as a mental disease or defect:
38
Ex. 2, 29.15 Tr. at 665. Then again, when asked about the dual diagnosis of Major
Depressive Disorder and Substance Abuse Disorder, Slusher stated:
39
Ex. 2, 29.15 Tr. at 666.
Counsel are required to investigate all reasonably available evidence. That
Mr. Dorsey suffered drug psychosis during withdrawal was reasonably available to
counsel; they could have simply asked him. Mr. Dorsey could have told counsel, had
they met with him to discuss his case before trying to convince him to plead guilty,
that he routinely suffered auditory and visual hallucinations and paranoid delusions
during withdrawal from crack cocaine. He experienced psychosis during withdrawal
from crack regularly. Not experiencing psychosis on the night of the murders, after
having binged crack for several days straight, would have been aberrant (as stated in
more detail below in Section III, and in Exhibits 5, 6, and 7). Slusher was aware of
the defense, and it was a single question to his client away. If Slusher had spoken
even once with his client to gather basic information, let alone, as the ABA
Guidelines require, “make every appropriate effort to establish a relationship of trust
with the client, and [] maintain close contact with the client,” he would have been
aware that Mr. Dorsey should not plead to a crime that he could not have committed.
ABA Guideline 10.5(A).
While the expert reports attached to this petition make this clear, even if
Slusher and McBride were indisposed to speak to or believe their client, they were
on notice from their own expert that Mr. Dorsey could not have committed first-
degree murder. In light of their own expert’s findings, the strategy of Brian “taking
40
accountability” is profoundly unreasonable and ineffective. See e.g., Weeden v. 854
F.3d at 1070.
Ex. 2, 29.15 Tr. at 591.
Not only did Slusher fail to speak to his own client about a possible defense
to first-degree murder, but he also failed to speak to his own expert before
convincing Mr. Dorsey to plead guilty. While counsel had hired an expert, the expert
had not completed his evaluation nor interviewed Mr. Dorsey about the crime
because a snowstorm had prevented his return to Missouri. Instead of postponing
Mr. Dorsey’s next hearing date to provide time for the expert to complete his
evaluation, counsel changed the hearing to a plea hearing and convinced Mr. Dorsey
41
to plead guilty. At trial, that same expert, Dr. Smith, testified that Mr. Dorsey was
suffering from diminished capacity at the time of the murders. The government
objected and moved to strike, pointing out Mr. Dorsey had pleaded to not having
diminished capacity, precluding Dr. Smith from testifying as to his findings.
Under questioning by the prosecutor, Dr. Smith was clear that Brian was
suffering from diminished capacity:
[]
42
Ex. 1, Trial Tr. at 971-72.
Capital defense counsel that fail to do any independent investigation, fail to
speak to their client about guilt-phase issues, and fail to speak to their own expert
about guilt-phase issues, are defense counsel that do not want to find any guilt-phase
issues. This falls far below the prevailing professional norms and is wholly
unreasonable. See Wiggins, 539 U.S. at 521–22. The perverse financial incentives in
this case resulted in counsel making an uninformed strategy decision that served
only their own financial wellbeing, not their client’s Sixth Amendment right to
effective advocacy. See Cuyler, 446 U.S. at 348.
43
C. Any Alleged Strategy by Counsel was Not Reasonable Because It
Was Not Informed by Investigation
To be clear, counsel alleged a strategy: have Mr. Dorsey plead guilty, in
exchange for nothing, and gamble everything on the sentencing phase. This Court
credited that, despite counsel having admitted to doing no investigation in order to
inform that strategy. That was a failure to apply bedrock Sixth Amendment
jurisprudence.
Yet that strategy should be given exactly as much credit as counsel themselves
reasonably put it into action:
Ex. 2, 29.15 Tr. at 573.
Just because counsel allege a strategy that does not render the strategy
decision reasonable. See Wiggins, 539 U.S. at 52 (stating that “Strickland does not
establish that a cursory investigation automatically justifies a tactical decision”);
Driscoll v. Delo, 71 F.3d 701, 709 (8th Cir. 1995) (even when defense counsel
elicited a concession from the state expert, counsel was deficient for having failed
to take measures to understand the testing performed and the meaning of the results).
Counsel again took the path of least financial resistance, failing to put in the
44
uncompensated hours to conduct any independent investigation and then, despite
their alleged strategy, similarly undertook no mitigation investigation for the
sentencing proceeding. “[I]f counsel entirely fails to subject the prosecution’s case
to meaningful adversarial testing, then there has been a denial of Sixth Amendment
rights that makes the adversary process itself presumptively unreliable.” Cronic, 466
U.S. at 659.
Because Mr. Dorsey’s counsel failed to render effective assistance and make
a reasonable decision based on an independent investigation regarding his guilty
plea, Mr. Dorsey’s proceedings did not rise to the level of an adversarial process.
Rather, this was “a sacrifice of unarmed prisoners to gladiators.” United States v.
Cronic, 466 U.S. at 656–57 (quoting United States ex rel. Williams v. Twomey, 510
F.2d 634, 640 (7th Cir. 1975)). Such a sacrifice is clear evidence of the adverse effect
of the conflict-of-interest. Mickens v. Taylor, 535 U.S. 162, 171 (2002). This Court
should hear this claim on the merits, to prevent the execution of a man who pleaded
guilty to the first-degree murders he was unable to commit.
D. Adverse Effect and Ineffective Assistance Meant There Was No

Counter to the Government’s Misleading Narrative and
Erroneous Allegations in the Sentencing Phase
“The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Strickland, 466
45
U.S. at 686. Because Mr. Dorsey’s counsel failed to investigate in any way the crime
or their client’s background, they were unable to counter the government’s false
narrative about why Mr. Dorsey should be sentenced to death.
At the sentencing-phase proceeding, on which Mr. Dorsey’s life depended,
the government presented to the jury a picture of Mr. Dorsey as having coolly and
deliberately murdered his cousin and her husband, alleging he was “fully aware of
his surroundings” and insinuating Mr. Dorsey was sober and unaffected because it
had been “hours” since his last drug use. See Ex. 1, Trial Tr. at 899; 1006. The jury
was never presented with an alternate narrative. Instead, they were told by Slusher,
“[T]here’s no real explanation. There just isn’t. Some things—some things are
unexplainable.” Ex. 1, Trial Tr. at 1014.
Thus, rather than directly addressing and undermining the capital charge, Mr.
Dorsey’s trial counsel chose a “strategy” which could fit neatly within the State’s
narrative of events at the sentencing phase without disrupting it, leaving them
without the basis to object to misleading statements of fact alleged by the prosecutor.
The state’s “evidence” was never put to the crucible of adversarial testing. Cronic,
466 at 656–57.
Moreover, rather than undertaking an investigation to inform strategic
decisions about a defense, counsel chose a theory of the crime as “unexplainable”
for which they could not offer evidence or testimony. Trial counsel had scant hope
46
of success without any supportable strategy, leaving them—and Mr. Dorsey—ill-
equipped for a sentencing proceeding when the time came.
“The ABA Guidelines provide that investigations into mitigating evidence
‘should comprise efforts to discover all reasonably available mitigating evidence
and evidence to rebut any aggravating evidence that may be introduced by the
prosecutor.’ Wiggins v. Smith, 539 U.S. at 524 (holding that the ABA Guidelines are
“guides to determining what is reasonable;” quoting ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93
(1989)) (emphasis in the original). Mr. Dorsey and his history with drug abuse was
reasonably available to Slusher and McBride; that they chose not to meet with their
client and ask basic questions, or have a mitigation specialist investigate Mr.
Dorsey’s background and ask those questions, was not reasonable. It was grossly
ineffective.
The government argued at sentencing that because Mr. Dorsey was no longer
under the effects of drugs at the time of the crime, he was both a liar, for not telling
the jury what happened, and a cold, calculated murderer with the ability to reflect on
his actions and undertake them anyway. Because Slusher and McBride did not look
into the readily available information at their disposal, they had no counter to this
narrative, and failed to effectively act as advocates at the sentencing phase
proceeding and allowed the government to continually allege scientifically unsound
47
and incorrect information to the jury without any objection. Despite defense
counsels’ supposed strategy of putting all their eggs into the sentencing phase basket,
they made no effort to counter the government’s erroneous assumptions and
allegations. Cronic, 466 U.S. at 659; Strickland, 466 U.S. at 685 (“[C]ounsel’s skill
and knowledge is necessary to accord defendants the ‘ample opportunity to meet the
case of the prosecution to which they are entitled.’”)
The government set up this argument in questioning Mr. Dorsey about his
drug and alcohol consumption, underlining that he had not had drugs in a number of
hours, as if, once a person comes down from the high, the drugs are no longer
affecting them. As discussed further below and in attachments, this is scientifically
insupportable, but Mr. Dorsey’s counsel had not prepared for the sentencing phase
and thus was too ignorant and unprepared to counter this mistaken assumption.
Ex. 1, Trial Tr. at 897.
48
Ex. 1, Trial Tr. at 899.
In closing, the government inaccurately argues to the jury that Brian Dorsey
was stone-cold sober and thus fully responsible for the crimes. “Now by the time he
gets there, it had been hours since he stopped using drugs, by his own statement in
the courtroom,” Ex. 1, Trial Tr. at 1001. “So by this time we’re talking eight to ten
hours since the defendant has last has any drugs, at least by this statement. And who
knows how long ago it had been. The only evidence we have that he was drinking
anything more than a few beers is his own statement that somehow he got into the
vodka.” Ex. 1, Trial Tr. at 1002. And finally, the prosecutor told the jury that, “But
what…
49
Ex. 1, Trial Tr. 1005-06.6
As a preliminary matter, because this was not evidence elicited from witnesses
and rested on unproven assumptions about how drugs work on the brain, it was
improper for prosecutors to allege it. See Darden v. Wainwright, 477 U.S. 168, 180–
81 (1986) (explaining that a prosecutor commits misconduct when he manipulates
or misstates the evidence at trial). But because defense counsel was so ill-prepared,
6
Prosecutors conflated the common usage of “deliberate” with the legal definition.
While each of Brian’s actions may have been deliberate, in that he took individual
steps to complete an action, given that these were in response to psychotic delusions
precludes them from meeting the legal definition of “deliberation.” See Ex. 5,
French at 4, fn 2, at 5 (stating that psychosis from cocaine toxicity involves
“incorrect judgments about external reality” and “the creation of a new reality.”);
Mo. Rev. St. § 565.002(5); State v. Gomez, 672 S.W.3d 113, 119–20 (Mo. Ct. App.
2023).
50
they never objected, despite it being both prosecutorial misconduct and scientifically
unfounded.7 Counsel’s failure to invest any time or effort into advocacy for Mr.
Dorsey was undoubtedly a result of the financial incentives under which they were
placed.
While “sobriety” was a central factor in the government’s argument to jurors
for death, Slusher readily admitted that he was not prepared to counter that narrative.
He stated, “Overall, it’s my feeling that voluntary drug use, even if it leads to real
extreme behavior and you can explain it with an expert and a mental health expert,
I don’t think they -- that [jurors] care that much and that it’s a big factor.” Ex. 2,
29.15 Tr. at 597. This allowed the government to argue it was not a factor at all,
and that Mr. Dorsey, with no history of violence, was in his perfectly right mind
when he murdered people he cared about and who had just helped him. Moreover, a
mitigation investigation should not be narrowly construed as to only what counsel
may present at the exclusion of meeting the government’s case. Slusher and McBride
7
Research was readily available at the time that would have indicated that Brian
Dorsey was almost certainly suffering under drug psychosis, as the effects of
psychosis can last not only hours, but days. See Ex. 5 at 6; see e.g; Manschreck, T.C.,
et al, Characteristics of freebase cocaine psychosis, The Yale Journal of Biology and
Medicine 61: 115-122, 1988; Dinn, H., Cocaine Psychosis: Interpretation
difficulties, Canadian Society Forensic Sci6ences Journal 27: 81-85, 1994 (“Cocaine
psychosis may remain long after cocaine has disappeared from the body, i.e. loss of
cocaine from its metabolism. One study of 31 individuals with cocaine-induced
psychosis found the duration of the psychotic episode averaged 16 days (range 1-60
days), with persecutory delusions lasting for a week or longer.”)
51
“had a duty to make all reasonable efforts to learn what they could about the offense”
as well as “anticipate the details of the aggravating evidence the [State] would
emphasize.” Rompilla v. Beard, 545 U.S. 374, 385–86 (2005).
Instead of embracing a deficient defense strategy early on, trial counsel could
have conducted an adequate investigation—one that involved exploring alternative
narratives for the crime, speaking with one or more experts who could have helped
explore viable defenses to the charges, and cultivating relationships with witnesses
familiar with details regarding Mr. Dorsey’s history with and experience on drugs.
Armed with that information, counsel would then have been able to prepare a legally
and factually defensible challenge to the charge of first-degree murder and the
government’s allegations of being sober and considered deliberation before the
murders. “The very premise of our adversary system of criminal justice is that
partisan advocacy on both sides of a case will best promote the ultimate objective”
of producing the truth and resulting in justice. Herring v. New York, 422 U.S. 853,
862 (1975). This was an abject failure on the part of trial counsel to advocate for
their client, and Mr. Dorsey was denied his Sixth Amendment rights.
Because counsel was laboring under a financial conflict of interest that
adversely affected Mr. Dorsey’s representation, denying him a guilt phase and an
adversarial proceeding in the sentencing phase, this Court should not make another
Cronic error and must hear this claim on the merits.
52
III. MR. DORSEY WAS INCAPABLE OF THE REQUISITE MENS
REA REQUIRED FOR FIRST DEGREE MURDER
To prevail on a claim of ineffective assistance due to a conflict of interest, a
petitioner must show that: 1) an actual conflict existed (as opposed to a possible or
hypothetical one), and 2) it adversely affected the petitioner’s representation by
counsel. Conger v. State, 398 S.W.3d 915, 919 (Mo. App. Ct. 2013). To demonstrate
adverse effect, Mr. Dorsey must “identify a plausible alternative defense strategy or
tactic that [his] defense counsel might have pursued, show that the alternative
strategy was objectively reasonable under the facts of the case, and establish that the
defense counsel's failure to pursue that strategy or tactic was linked to the actual
conflict.” Plunk v. Hobbs, 766 F.3d 760, 764 (8th Cir. 2014) (en banc) (quotations
omitted).
Brian Dorsey is innocent of first-degree murder because he did not deliberate
or coolly reflect on the homicides. See Mo. Rev. St. § 565.020 (“A person commits
the offense of murder in the first degree if he or she knowingly causes the death of
another person after deliberation upon the matter”); Mo. Rev. St. § 565.002(5)
(“Deliberation” means “cool reflection for any length of time no matter how
brief[.]”). Mr. Dorsey can establish that there was a readily available and “plausible
alternative defense strategy” to first-degree murder—diminished capacity due to
mental disease or defect under Mo. Rev. § 552.030—but because counsel did not
want to take this case to trial, Mr. Dorsey was instead convinced to plead guilty to a
53
crime he was cognitively incapable of committing. Plunk, 766 F.3d at 764; Mo. Rev.
§ 552.030 (“A person is not responsible for criminal conduct if, at the time of such
conduct, as a result of mental disease or defect such person was incapable of
knowing and appreciating the nature, quality, or wrongfulness of such person's
conduct.”).
That Mr. Dorsey could not have committed first degree murder was
discoverable had Chris Slusher or Scott McBride merely asked their client a single
question about his history with drug use before the plea. Wiggins, 539 U.S. 524
(2003) (holding that counsel is required to investigate into all reasonably available
evidence). Psychosis was not only a plausible defense strategy (as was major
depressive disorder, both of which are recognized as mental diseases or defects that
can produce diminished capacity, see Mo. Rev. § 552.010), it was one trial counsel
was well-aware of, as stated in the post-conviction evidentiary hearing. See Ex. 2,
29.15 Tr. at 665, 666; see Hutchison v. State, 150 S.W.3d 292, 307 (Mo. 2004)
(holding that “counsel’s failure to do any follow-up cannot, under these
circumstances, satisfy Wiggins’ mandate to discover all “’reasonably available
mitigating evidence.’”) (emphasis in the original). Failing to pursue a defense to
capital murder, and indeed failing to attempt in any way to remove the death penalty
as a possible sentence, was pure indolence by Slusher and McBride, driven by the
financial conflict of interest counsel was laboring under. See Ex. 2, 29.15 Tr. at 666,
54
885; Anderson v. Johnson, 338 F.3d 382, 393 (5th Cir. 2003) (holding that failing to
do any investigation is not “part of a calculated trial strategy, but is likely the result
of either indolence or incompetence.”)
At the time of the murders, Brian Dorsey was a poster child for drug
psychosis; even without any investigation, there were numerous red flags that Mr.
Dorsey was not acting and could not have acted rationally, let alone with
deliberation. Rather than simply suffering from “voluntary intoxication,” Mr.
Dorsey, already predisposed genetically, neurologically, and psychosocially to
neurological impairment and emotional dysregulation, was acting purely reflexively
on the night of the murders, and without reflection, pursuant to persecutorial
delusions; unable to conform his actions to reality, Mr. Dorsey was thus unable to
commit first-degree murder. See State v. Strong, 142 S.W.3d 702, 717 (Mo. banc
2004) (holding that deliberation requires “that the killer had ample opportunity to
terminate the attack once it began.”); State v. Gomez, 672 S.W.3d 113, 119–20 (Mo.
Ct. App. 2023) (holding that “[t]he element of deliberation ensures that the trier of
fact believes the defendant acted consciously and not reflexively.”). However,
having already been paid a flat fee, Slusher and McBride made the fiscally sound
decision to do no investigation and instead gamble with Mr. Dorsey’s life. This falls
far short of prevailing professional norms and the requirements of the Sixth
Amendment. Wiggins, 539 U.S. at 524.
55
Because counsels’ flat fee payment incentivized doing as little advocacy as
possible, Mr. Dorsey’s trial counsel wanted to avoid a guilt-phase proceeding, and
therefore simply refused to look for a defense theory they didn’t want to find. The
readily available defense that effective, unconflicted counsel would have presented
is discussed below. That Mr. Dorsey’s attorneys convinced him to plead guilty to a
crime he could not have committed, and that he may be executed despite his
innocence of capital murder, is anathema to constitutional due process and
Missouri’s criminal justice system. As his execution would be a manifest injustice,
this Court must overturn the death sentence or refer this case for further evidentiary
development.
A. Facts That Trial Counsel Could and Should Have Presented in a

Guilt-phase Proceeding
1. Mr. Dorsey’s Background
Had trial counsel provided Mr. Dorsey his Sixth Amendment right to effective
counsel and done any investigation, they would have been well-aware that Mr.
Dorsey was almost certainly suffering from diminished capacity and psychosis on
the night of the murders. Indeed, the expert retained by Slusher and McBride testified
as such in sentencing, but the testimony was struck because trial counsel had
56
successfully avoided a guilt-phase proceeding by having their client plead guilty to
a crime he could not have committed. Ex. 1, Trial Tr. at 971-72.8
Mr. Dorsey’s psychosis was, in many ways, predetermined by factors well
outside Mr. Dorsey’s control. First, at the time of the murders, Mr. Dorsey was
struggling with cognitive deficiencies that started during early childhood. Mr.
Dorsey was genetically predisposed to addiction and mental illness, inherited from
both his father, whose addiction caused abuse and trauma in Mr. Dorsey’s
childhood home, and from Mr. Dorsey’s mother, whose own family suffered from
mental illness and addiction issues. See Report from Dr. Edward D. French, PhD,
Ex. 5. at 3 (hereafter “French”); Report from Dr. John Matthew Fabian, PhD, Ex. 6
at 12 (hereafter “Fabian”). Mr. Dorsey was raised in a home that revolved around
his father’s alcoholism and the subsequent abuse that accompanied it. Ex. 5, French
at 3. Excessive drinking was not only normalized, it was encouraged; adults would
slip Mr. Dorsey alcohol as a child during parties and social gatherings. Ex. 7, Brandt
Dec at 3.
While he was able to focus on football for periods of time, Mr. Dorsey started
binge drinking in high school. Ex. 5, French at 3. His binge drinking became
necessary to self-medicate, and from the age of 19, Mr. Dorsey drank every single
8
The expert was also unable to advise counsel of this conclusion before the plea
hearing because counsel did not permit the expert time to complete his evaluation
before he advised and pled Mr. Dorsey guilty.
57
day until the day he turned himself into the police. Ex. 5, French at 3; Ex. 7, Brandt
Dec. at 4. Given the degree and consistency of drinking starting in childhood, at the
time of the murders Mr. Dorsey was undoubtedly suffering from alcohol
neurotoxicity, which impaired his brain development and neuro-processing
abilities. Ex. 5, French at 8.
Mr. Dorsey also inherited mental illness from both sides of his family. Ex. 6,
Fabian at 2. He first started becoming depressed around age 14, and was suicidal
from age 21. Id. He was later diagnosed with major depressive disorder (MDD).
Ex. 6, Fabian at 2. His depression and subsequent early adoption of alcohol and
crack-cocaine as a teenager to obviate the symptoms of that depression led to a dual
diagnosis of major depression and substance abuse disorder. Id.
Mr. Dorsey’s dual diagnosis could not be separated out as individual illnesses;
his major depressive disorder, despite his efforts towards receiving help and
treatment, proved medication resistant. Ex. 6, Fabian at 5-9. As a result, he was
forced to resort to self-medicating with cocaine and alcohol, which ultimately
contributed to the worsening depression. Id. at 5, 8. The cycle was brutal and
unrelenting. Mr. Dorsey was often suicidal and attempted suicide twice; both times
he ended up in the hospital. Id. at 2. Feeding on each other, the dual diagnosis also
uniquely set Mr. Dorsey up for psychosis, as people with depression are more likely
to experience psychosis when using cocaine. Id. at 13.
58
In addition, one of Mr. Dorsey’s suicide attempts via drug overdose resulted
in a loss of consciousness that likely caused a toxic brain injury. Such an injury has
a detrimental impact on brain structure and function and can worsen already
significant major depression and psychosis. Ex. 6, Fabian at 11.
2. The Night of the Murders
Like major depressive disorder, psychosis can constitute “mental disease or
defect” under Missouri law. See Mo. Rev. § 552.010 (stating that “mental disease
or defect” do not include alcoholism or drug abuse unless they include psychosis).
Psychosis is not simply voluntary intoxication, but a unique neurological response
to the withdrawal of, in Mr. Dorsey’s case, cocaine, that is neurologically
indistinguishable from schizophrenia. Ex. 5, French at 5. A person cannot stop
psychosis, as they cannot end their schizophrenic delusions, once they begin. Ex. 5,
French at 5, 9 fn 6; see Strong, 142 S.W.3d at 717 (holding that deliberation includes
“the opportunity to terminate the attack once it began”). And contrary to the
inaccurate and improper assertions by prosecutors during the sentencing phase,
psychosis begins during withdrawal from cocaine, and may begin and linger for
hours or days after the body has metabolized cocaine. Ex. 5, French at 6; Ex. 1,
Trial Tr. at 897, 899, 1001-02.
In fact, had trial counsel done any investigation or consulted the appropriate
experts, they would have learned that Mr. Dorsey was genetically, physiologically,
59
and neurologically more likely to experience psychosis during cocaine withdrawal.
His major depression made cocaine psychosis more likely, as did his toxic brain
injury from a prior suicide attempt. Ex. 6, Fabian at 7, 11. Moreover, at the time of
the offense, Mr. Dorsey had not slept for over 72 hours, and sleep deprivation of
that duration alone can cause psychosis. Ex. 5, French at 5; Ex. 6, Fabian at 7.
Mr. Dorsey’s history of psychosis, had his attorneys simply asked, evidenced
someone who lost any contact with reality for extended periods of time, involving
both visual and auditory hallucinations, and paranoid delusions that were
persecutory in nature. Ex. 5, French at 5; Ex. 7, Brandt Dec. at 2-3; see State v.
Gomez, 672 S.W.3d 113, 119–20 (Mo. Ct. App. 2023) (“[t]he element of
deliberation ensures that the trier of fact believes the defendant acted consciously
and not reflexively”).9 Mr. Dorsey had historically, because of the nature of the
delusions, avoided other people during his cocaine binges. Ex. 7, Brandt Dec. at 1.
He often locked himself in spaces during such binges to ride out the delusions alone,
9
Compare the definition of deliberation from State v. Gomez with the language of
Dr. Fabian’s report:
I have concerns that Mr. Dorsey’s combination and interaction of
immediate psychosocial stressors; psychiatric symptoms; and effects of
substances on brain functioning impaired his cognitive, emotional, and
behavioral capacity and overall mental state at the time of the offenses.
From a forensic mental health perspective, these factors potentially
compromised his capacity to be consciously aware of his actions and
their consequences.
Ex. 6 at 14.
60
as he frequently hallucinated that people were coming after him, including his own
family. Ex. 7, Brandt Dec. at 3. Once these psychotic delusions began, Mr. Dorsey
could not stop them nor alter their trajectory; they were wholly resistant to will or
reality. Ex. 5, French at 4, 9-10, fn6.
Additionally, the psychosocial stressors of the day and night of the murders
made it extremely likely he was suffering from severe neurological dysregulation
and psychosis when he committed the murders. Ex. 6, Fabian at 14; Ex. 5, French
at 10. Mr. Dorsey was experiencing considerable emotional distress, distress which
he was not neurologically equipped to handle. Ex. 6, Fabian at 4, 8, 9-10, 11, 12.
That evening, Mr. Dorsey was held captive in his apartment by two drug dealers,
who forced him to call his family members and beg for money to pay back his drug
debts. Ex. 1, Trial Tr. at 862, 887. This was catastrophic to Mr. Dorsey. Mr. Dorsey
tried to keep his drug use away from his family, and so his shame and
embarrassment were overwhelming. Id. His parents, and especially his mother, for
the first time in his life, refused to step in and save him from the consequences of
his addiction, telling him they had no money to give him to gain his freedom. Ex.
1, Trial Tr. at 862, 888; Ex. 7, Brandt dec. at 4. Mr. Dorsey had to be rescued by his
cousin Sarah and her husband, at a time when he already felt like his life was falling
apart. Ex. 7, Brandt dec at 4. He was extremely depressed and suicidal the night of
the offense, and, rather than being isolated as he usually was when coming down
61
from a cocaine binge, he was experiencing extreme fear, shame, and persecutory
delusions around his family members. Ex. 6, Fabian at 4; Ex. 7, Brandt at 4.
Mr. Dorsey was neurologically ill-equipped to cope with these overwhelming
emotions. Indeed, there were considerable neurological factors that would have
contributed to the dysregulation and disorder of Mr. Dorsey’s thought processes in
times of stress or threat. Ex. 6, Fabian at 12. First, Mr. Dorsey has significant
impairments from both aspects of his dual diagnosis, each of which then
exacerbated the symptoms of the other. Ex. 6, Fabian at 5-7, 12; Ex. 5, French at 5-
7. Second, major depressive disorder fundamentally alters the brain’s ability to
adapt to stressful situations. MDD causes dysregulation in the prefrontal cortex,
which controls executive functioning and the processing of emotion, as well as the
amygdala, which also processes emotion and, crucially, fear. Ex. 6, Fabian at 3.
Dysregulation of these areas of the brain causes a person faced with stressors to
have dysregulated responses. Id. at 3-4.
So while Mr. Dorsey was unlikely to have been able to functionally manage
his feelings of shame, regret, depression, and suicidality, his already existing
neurological deficiencies were then heightened by the fact that Mr. Dorsey was
intoxicated, sleep deprived, and having paranoid delusions due to withdrawal
psychosis. He would have been having dysregulated, purely reactive responses to
things that he believed he saw and heard, but were not in fact there. Mr. Dorsey’s
62
dysregulated responses were obvious, even in the State’s narrative of the crime,
which highlighted how, among other items that he would have been able to sell for
money, Mr. Dorsey had stolen a Bambi DVD from Ben and Sarah’s house. Ex. 1,
Trial Tr. at 624-25; Trial Ex. 59. This was not a depraved act; it was a nonsensical
one. It was one more red flag about Mr. Dorsey that his trial counsel ignored
because of their financial conflict of interest. Indeed, while Mr. Dorsey was under
the effects of psychosis from cocaine toxicity, he was unable to correctly perceive
reality as it was, his brain instead creating one that he was responding to that could
not adapt when faced with new or changing facts. Ex. 5, French at 4 fn. 2; 5; 9 fn.
6 (stating that until the brain can recover normal function, and individual is “at the
mercy of the deranged mental processes causing the cocaine-induced psychosis.”).
Further, Mr. Dorsey was suicidal at the time of the murders; he was often
suicidal because of his major depressive disorder and had attempted suicide before.
However, the withdrawal from cocaine would have made that suicidality even more
intense. Ex. 6, Fabian at 4, 5, 7 The same areas of the brain that are activated in
those who are suicidal are active in those who are homicidal. Ex. 6, Fabian at 4.
Rather than being able to coolly reflect, Mr. Dorsey would have been primed to lash
out at himself or others in response to his paranoid delusions.
Thus, Mr. Dorsey would have been incapable of the “cool deliberation”
required of first-degree murder under Missouri. If counsel had investigated, they
63
would have uncovered how Mr. Dorsey’s genetic predisposition, major depressive
disorder, toxic brain damage, and drug psychosis led to severely disordered thought
processes at the time of the offense.
B. Mr. Dorsey’s counsel’s conflict of interest led them to deny Mr.

Dorsey a reasonable investigation and a defense to first-degree
murder; Mr. Dorsey’s death sentence was an adverse effect of their
refusal to effectively represent him.
As stated, to prevail on a conflict-of-interest claim, Mr. Dorsey must identify
an objectively reasonable defense strategy or tactic that his defense counsel failed to
pursue because of their conflict of interest. Plunk v. Hobbs, 766 F.3d 760, 764 (8th
Cir. 2014).
Counsel had a well-established duty under prevailing professional norms to
conduct an investigation before determining strategy. In Rompilla v. Beard, 545 U.S.
374, 387 (2005) the Supreme Court held that ABA Guideline 10.7 dictated
prevailing professional norms:
Counsel at every stage have an obligation to conduct thorough and

independent investigations relating to the issues of both guilt and
penalty. [ ] The investigation regarding guilt should be conducted
regardless of any admission or statement by the client concerning the
facts of the alleged crime, or overwhelming evidence of guilt.
If counsel had armed themselves with the information that could have been
gathered by interviewing their client in any depth, they could have made informed,
strategic decisions to: (1) contend persuasively that Mr. Dorsey was suffering from
drug psychosis at the time of the murders, and (2) ground that information in genetic,
64
psychological, neuropsychological, and neuroimaging evidence making clear that
this was not an offense of calm reflection or rational thought, but the result of severe
brain dysfunction. Had counsel made this showing to State prosecutors, then death
may have been taken off the table, at least in exchange for a plea. If not, counsel
would have been armed with this evidence to prove to the jury that Mr. Dorsey was
not guilty of first-degree murder. Expert consultations would have painted for
counsel a picture of an individual whose brain did not work the same way a “normal”
adult brain is expected to work, even one under the effects of voluntary intoxication.
Counsel, in turn, could have painted that picture for state prosecutors and a jury to
help demonstrate why Mr. Dorsey could not reflect or premeditate during the
commission of the crime.
“Death is different because avoiding execution is, in many capital cases, the
best and only realistic result possible”; as a result, plea bargains in capital cases are
not usually “offered” but instead must be “pursued and won.” ABA Guideline 10.9.1
cmt. (quoting Kevin McNally, Death Is Different: Your Approach to a Capital Case
Must be Different, Too, The Champion, Mar. 1984, at 8, 15). As such, under the
ABA Guidelines, “before entering into plea discussions, counsel does need to have
thoroughly examined the quality of the prosecution’s case and investigated possible
first-phase defenses and mitigation.” Id. Because of counsels’ financial conflict-of-
interest, that did not happen here. Mr. Dorsey’s attorneys did not conduct any
65
investigation, because they were not looking for defenses; rather, they were looking
to save money by obviating a guilt-phase proceeding.
Counsel with undivided loyalty to Mr. Dorsey and his interests, rather than
their own financial outcome, would have engaged in pretrial negotiations with State
prosecutors in an attempt to take the death penalty off the table 10, explaining that
because of the extent to which psychosis disordered Mr. Dorsey’s thought processes,
Mr. Dorsey was experiencing severe paranoid delusions, impaired judgment, and
impaired mental flexibility when he killed Ben and Sarah. Counsel had a duty to
obtain such information before deciding on a strategy, as this obviously dictates the
nature of any pretrial discussions. See United States v. Gray, 878 F.2d 702, 711 (3d
Cir. 1989) (“[C]ounsel can hardly be said to have made a strategic choice against
pursuing a certain line of investigation when s/he has not yet obtained the facts on
which such a decision could be made.”); Knighton v. Maggio, 740 F.2d 1344, 1350
(5th Cir. 1984) (petitioner entitled to relief if record shows that counsel “could not
make a valid strategic choice because he had made no investigation”); ABA
Guideline 10.7; see also United States v. Tucker, 716 F.2d 576, 581 (9th Cir. 1983)
10
The ABA Guidelines do not even contemplate reaching an agreed-upon
disposition that includes the death penalty, directing counsel to fully explain to
clients “any collateral consequences of potential penalties less than death.” ABA
Guideline 10.9.1(B)(2). Further, “In many capital cases, however, the prosecution’s
evidence of guilt is strong, and there is little or no chance of charge bargaining. In
these cases, a guilty plea in exchange for life imprisonment is the best available
outcome.” ABA Guideline 10.9.1 cmt.
66
(“Pretrial investigation and preparation are the keys to effective representation of
counsel.”). Ultimately, as the ABA Guidelines make explicitly clear: “If no written
guarantee can be obtained that death will not be imposed following a plea of guilty,
counsel should be extremely reluctant to participate in a waiver of the client’s trial
rights.” ABA Guideline 10.9.2 cmt.
Chris Slusher and Scott McBride failed to adhere to any professional norms
or make objectively reasonable decisions on behalf of their client, laboring as they
were under a flat fee contract which pit their client’s interest against their own. Even
if state prosecutors failed to agree to take death off the table, no objectively
reasonable attorney would then, under that condition, have their client plead to a
capital murder charge that their client could not have even committed. “While a
criminal trial is not a game in which the participants are expected to enter the ring
with a near match in skills, neither is it a sacrifice of unarmed prisoners to
gladiators.” United States v. Cronic, 466 U.S. 648, 656–57 (1984) (quoting United
States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975)).
Finally, had Slusher and McBride failed to save their client from a guilty
verdict after a guilt-phase proceeding, a Sixth-Amendment-mandated investigation
would have allowed counsel to present a coherent mitigation narrative to the jury
and meet the State’s allegations during the penalty-phase proceeding. Slusher and
McBride could have explained the numerous factors which led to that night, many
67
of which were out of Mr. Dorsey’s control, including his inheritance of addiction
and mental illness and the evidence of psychosis. Ex. 5, French at 9; Ex. 6, Fabian
at 5, 7, 12. They could have countered the State’s unscientific, and improperly
admitted, allegations that Mr. Dorsey was in his right mind at the time of the crime
because his body had metabolized the cocaine; the jury could have been told that
psychosis often begins in withdrawal and can last for days after the high from
cocaine has ended. Ex. 5, French at 6. Slusher and McBride could have helped the
jury understand the depth of the paranoid delusions and visual and auditory
hallucinations Mr. Dorsey was experiencing, and how they did not comport at all
with reality. Information about sleep deprivation, toxic brain injury, alcohol
blackout, significant neurological deficiencies and emotional dysregulation would
have assisted a jury in understanding why Mr. Dorsey’s actions made seemingly no
sense, why he would have hurt the people that had helped him that night, why Mr.
Dorsey was not violent and yet violently lashed out that specific evening. Instead,
counsel failed to follow prevailing professional norms and made decisions about Mr.
Dorsey’s interests based on their financial interests rather than Mr. Dorsey’s Sixth
Amendment ones.
Mr. Dorsey has proven beyond clear and convincing evidence that the
financial conflict of interest adversely affected his counsel’s representation. Cuyler,
446 U.S. at 348. To ensure Mr. Dorsey’s rights under the Fifth and Sixth Amendment
68
and prevent a manifest injustice, this court must overturn the deaths sentence or refer
this case for further evidentiary development congruent with Cronic, Cuyler and
Strickland.
IV. BRIAN DORSEY IS INNOCENT OF CAPITAL MURDER AND IT

WOULD BE A MANFIEST INJUSTICE TO EXECUTE HIM
As Brian Dorsey is innocent of first-degree murder; his death sentences are a
manifest injustice. See State ex rel. Amrine v. Roper, 102 S.W.3d 541, 545 (Mo. banc
2003). See also State ex rel. Verweire v. Moore, 211 S.W.3d 89 (Mo. 2006) (“This
case presents the rare situation in which a criminal defendant pled guilty to a crime
he did not commit.”) Habeas corpus relief is available where the petitioner can
demonstrate “manifest injustice or miscarriage of justice” by showing that a “a
constitutional violation has probably resulted in the conviction of one who is actually
innocent.” Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000). “It is difficult to
imagine a more manifestly unjust and unconstitutional result than permitting the
execution of an innocent person.” Amrine, 102 S.W.3d at 547.
Mr. Dorsey has established by clear and convincing evidence that he is
innocent of first-degree murder because he did not deliberate, and was incapable of
doing so, prior to and during the commission of the homicides to which he pleaded
guilty. He has presented compelling and consistent new evidence from two different
experts that he was experiencing drug psychosis at the time of the crimes and
incapable of deliberation, in other words incapable of the requisite mens rea. See Ex.
69
6 and 7. He pleaded guilty because he relied on advice of conflicted counsel who
had not asked, let alone investigated, whether he had the requisite mens rea for first-
degree murder.
In State ex rel. Verweire v. Moore, this Court granted habeas relief in a “case
present[ing] the rare situation in which a criminal defendant pled guilty to a crime
he did not commit.” 211 S.W.3d at 90. Mr. Verweire, like Mr. Dorsey, did not
dispute his involvement, but he did dispute that he had the requisite mental
state/intent for the crime charged and to which he pled. This Court granted habeas
relief because they held “Verweire is actually innocent of the offense, that there was
no factual basis for the guilty plea, and that his plea was not knowingly and
voluntarily entered.” Id. at 93. 11 Like Verweire, Mr. Dorsey did not have the mens
rea required for the first degree murder charge. And like this Court held in Verweire,
Mr. Dorsey is actually innocent of the offense.
Actual innocence and manifest injustice also provide a procedural gateway
enabling this Court to review procedurally barred claims. Thus, even if this Court
concludes that a claim is procedurally barred, this Court must consider it on the
merits because of Mr. Dorsey’s actual innocence of capital murder. Schlup v. Delo,
11
While Mr. Dorsey has new evidence of his actual innocence of first-degree
murder, the Verweire Court did hold that new evidence is not required “in those rare
and exceptional cases” where a defendant pleaded guilty to a crime he did not
commit. 211 S.W.3d at 93.
70
513 U.S. 298 (1995). Amrine, supra, at 546; Clay v. Dormire, 37 S.W.3d 214 (Mo.
banc 2000); State ex rel. Koster v. McElwain, 340 S.W.3d 221 (Mo. App. 2011).
CONCLUSION
The flat fee structure under which Slusher and McBride were appointed
created a clear conflict of interest and adversely affected their representation of Mr.
Dorsey’s interests. Adequate representation of capital defendants requires extensive
pretrial investigation and mitigation work, continued efforts to remove the death
penalty as a possible sentence, and ensuring a client received due process at every
single possible stage of the criminal justice process. This was all work that conflicted
with the terms of a flat fee payment structure that financially disincentivized
advocacy, investigation, and providing Mr. Dorsey effective representation.
This Court has yet to conduct a Sixth Amendment analysis of Mr. Dorsey’s
conflict of interest claim in violation of the Supreme Court’s direction in Cronic.
“The right to counsel guaranteed by the Sixth Amendment is a fundamental right.”
Cuyler, 446 U.S. at 343.
Had this Court conducted the proper analysis required by the Supreme Court,
it would have found ample evidence that Mr. Dorsey’s proceedings at trial lost their
“character as a confrontation between adversaries,” clear evidence that “the
constitutional guarantee [of counsel] is violated.” Cronic, 466 at 656–57; Strickland,
466 U.S. at 685 (“[C]ounsel’s skill and knowledge is necessary to accord defendants
71
the ‘ample opportunity to meet the case of the prosecution to which they are
entitled.’”).
Mr. Dorsey brings this petition to prevent his execution for a crime he could
not have committed, a manifest injustice this Court must remedy. Webb v. Webb,
451 U.S. 493, 499 (1981). This Court must begin by following Supreme Court
direction in United States v. Cronic, 466 U.S. 648 (1984), Strickland v. Washington,
466 U.S. 668 (1984), and Cuyler v. Sullivan, 446 U.S. 335 (1980), and either
overturn his unconstitutional death sentence or appoint a Special Master pursuant to
Supreme Court Rule 68.03 to conduct an evidentiary hearing and ensure Mr.
Dorsey’s right to effective, unconflicted counsel under the Sixth Amendment.
Respectfully submitted,
/s/Megan G. Crane
Mo. Bar No.71624
MacArthur Justice Center
906 Olive Street, Suite 420
St. Louis, MO 63101
314-254-8540
Megan.crane@macarthurjustice.org
ATTORNEY FOR BRIAN DORSEY
72
CERTIFICATE REGARDING SERVICE
I hereby certify that a true and accurate copy of the Petition for Writ &
Suggestions in Support, Form 16 Writ Summary, Index of Exhibits and Exhibits
were sent via E-Mail to counsel for Respondent, David Vandergriff, and Office of
the Attorney General on December 22, 2023, upon the filing of the foregoing
document.
Warden David Vandergriff Gregory Goodwin

11593 State Hwy O Missouri Attorney General's
Mineral Point, MO 63660 Office
David.Vandergriff@doc.mo.gov Supreme Court Building
207 W. High St.
P.O. Box 899
Jefferson City, MO 65102
Gregory.goodwin@ago.mo.gov
/s/ Megan G. Crane
MEGAN G. CRANE
73

Brian Dorsey Rule 91 Petition Re: Conflict of Interest

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Brian Dorsey Rule 91 Petition Re: Conflict of Interest

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IN THE SUPREME COURT OF MISSOURI

DAVID VANDERGRIFF, Warden, Potosi Correctional Center,

PETITION FOR WRIT OF HABEAS CORPUS

ATTORNEY FOR BRIAN DORSEY

THIS IS A CAPITAL CASE

Pending Execution Date:

28 U.S.C. §2254(e) ....................................................................................................3

PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO

Amendment right to unconflicted, effective representation. Having been denied that

Dorsey was not guilty of first-degree murder, as he was neurologically incapable of

deliberation. Missouri law provides a defense in circumstances such as this, where

conflict-of-interest, and pressuring Mr. Dorsey to plead guilty to a crime he could

manifest injustice this Court must correct.

United States Supreme Court guidance on determining whether counsel was

federal Constitution demands more.

that the mechanism of appointment did not constitute conflict of ineffective

While 28 U.S.C. §2254(e) generally precludes presentation of evidence in federal

substance of the representation contravenes Cronic and is an improper test for

determining whether Mr. Dorsey was adversely affected as a result of a conflict of

inferential approach to determining whether a petitioner’s right to effective

matter of personal persuasion. See Cuyler, 466 U.S. at 346; Strickland v.

of the ineffectiveness of counsel’s assistance, the defendant must show that

counsel’s representation fell below an objective standard of reasonableness.”)

Strickland standard for ineffective assistance. Cuyler asks a court to evaluate

show ineffective assistance and prejudice, prejudice is presumed if the defendant

Sixth Amendment requires. In evaluating whether counsel’s actions adversely

54 (2010) (holding that the objective reasonableness of trial counsel’s tactical

decisions must be viewed in the context of the objective reasonableness of counsel’s

“deference owed such strategic judgments” of trial counsel is “defined … in terms

of the adequacy of the investigations supporting those judgments”). This petition is

arrangement, adversely affected their client by pressuring him to plead guilty to a

sentencing proceedings by investigating mitigating evidence; and (4) Counter the

government’s misleading and inaccurate representations to the jury during the

sentencing phase, directly resulting in a death sentence. Because of the conflict of

prosecution’s case to survive the crucible of meaningful adversarial testing.” Cronic,

further evidentiary development to ensure Mr. Dorsey’s federal constitutional rights

On March 7, 2011, Mr. Dorsey filed an Amended Motion to Vacate, Set

Aside, or Correct the Judgment and Sentences pursuant to Mo.S.Ct.R. 29.15. An

(Mo. 2014) as modified on denial of reh'g (Dec. 23, 2014).

under 28 U.S.C. §2254 in the Western District of Missouri, challenging his

Circuit issued an order granting a certificate of appealability in part. Oral argument

court proceedings, undersigned counsel entered her appearance and sought an

file a Sur-response and filed said Sur-response.

to either of the murders.

have a material impact on the case”).

financially sound, plan regardless.

interests at heart, Mr. Dorsey pleaded guilty.

Despite a supposed strategy of relying on the jury at a sentencing proceeding

to prevent a capital sentence, conflicted counsel failed to conduct any mitigation

failure to abide by professional norms and abject ineffectiveness. He admitted that

are required by ABA Guidelines governing capital representation and professional

At closing, one of Mr. Dorsey’s appointed attorneys, Chris Slusher, said to

things are unexplainable.” Ex. 1, Trial Tr. at 1014 (emphasis added).

appropriate experts, or otherwise provide effective assistance as unconflicted

to present a viable and compelling defense to first-degree murder under Missouri

law—diminished capacity due to mental disease or defect—to the jury in a guilt-

Dorsey’s petition on the merits.

ineffectiveness is an objective test based on the actions of the attorneys against

deference reserved for effective attorneys under Strickland.

which he was cognitively incapable of committing, in exchange for nothing from

led to adverse effects or ineffective assistance based on their representation rather

pursuant to Supreme Court Rule 68.03 to conduct an evidentiary hearing on the

merits applying the appropriate constitutional analysis.