Sunday, 21 January 2007


January 21, 2007



Jaw clenched, arms splayed, strapped to a gurney, Dexter Lee Vinson lay
ready to take a lethal injection in a Virginia prison, his punishment for
killing and sexually mutilating his ex-girlfriend, Angela Felton.

But even when the needle entered a vein to deliver drugs that would take
seven minutes to stop his heart, it wasn't clear whether Vinson's vile crime
was the only reason he'd come to this end.

Was he guilty? Beyond doubt. But his path to the death chamber was cleared
by 11 judges who watered down a series of U.S. Supreme Court rulings that
require lawyers to defend their clients' lives vigorously.

Vinson's attorneys had never looked into the iron-pipe beatings their client
took from his mother, or how his drunken grandfather liked to wake him with
a flurry of fists, or how his debilitating childhood seizures probably
signaled that he had brain damage.

State and federal appeals courts, charged with reviewing Vinson's case for
errors, never flagged or fixed those omissions. So Vinson died without a
jury ever knowing how his violent, dysfunctional upbringing had helped shape
the man who'd killed Felton so brutally.

His case isn't unusual.

A McClatchy Newspapers review of 80 recent death-penalty cases in Virginia,
Georgia, Alabama and Mississippi found that the safeguards that were missing
in Vinson's case are failing regularly.

Vinson's case is a vivid example.

His trial attorneys had missed myriad issues of abuse and mental deficiency
in his background; that was undisputed. A psychologist who'd worked with his
trial attorneys affirmed that he was asked to do very little, and was
surprised to learn of all the issues he might have discovered if he'd been
directed to inquire more aggressively.

But the Virginia Supreme Court, which handled Vinson's state appeal,
dismissed the claims in a single sentence, and said Vinson's family was at
fault for not volunteering the information to his attorneys. The justices
ignored the fact that Vinson's appellate attorneys had had no problem
getting his family to talk about his upbringing.

Other courts that reviewed the decision also dodged the issue of how his
attorneys had failed.

When the 4th U.S. Circuit Court of Appeals, in Richmond, handled Vinson's
federal appeal, it deferred to the Virginia Supreme Court, for example, and
even congratulated Vinson's trial lawyers for unearthing "independently
discovered" evidence. It was OK that they missed the horrors in Vinson's
background, the appeals court said, because his lawyers got his friends,
family and high school band director to offer flattering testimony about

"As the Supreme Court has said, it's not enough for a reviewing court to
simply see whether counsel did something," Lee said. "They're supposed to
assess the reasonableness of the incomplete investigation. This just wasn't
done here."

Defining 'effective defense'

The problem isn't confined to Virginia.

In Mississippi, Steve Knox was sentenced to death for beating and strangling
Ella Mae Spears, a retired teacher from Liberty. His mother could have told
the trial lawyers that her son barely talked until age 7, wasn't
toilet-trained until he was 10 and had "mental problems" that got worse
after the bucket of a backhoe hit him in the head.

Knox's lawyers produced proof of the backhoe incident, but they gave the
jury no evidence about his intelligence or mental health. They called his
mother to the stand, but only to say how much she loved him and that she
didn't want him to die.

When the lawyers who handled his appeals produced sworn statements about how
they'd gotten Knox's mother to talk in more detail about his troubled
childhood, the prosecutors dismissed it as hearsay. They also said that his
trial attorneys, who'd spent little time interviewing his family or him, had
had no way of knowing about his problems.

The Mississippi Supreme Court accepted the prosecutors' arguments. "We agree
with the State. This issue is without merit," the court wrote.

In Alabama, the courts rejected Toforest Johnson's appeal for reasons that
seem downright circular.

His trial counsel hadn't investigated his background and had hired no
experts to evaluate him. The Alabama Court of Criminal Appeals rejected his
appeal because Johnson, who couldn't afford an appellate attorney to do an
investigation either, couldn't detail what his trial lawyers had missed.

That kind of reasoning is found in many Alabama cases because the state, in
addition to not guaranteeing that death-penalty defendants have good trial
lawyers, makes no assurances that Death Row inmates will get appeals

In Georgia, the appellate courts also have been reluctant to intercede, even
in cases in which attorneys did little or nothing for their clients during
sentencing hearings.

That may be beginning to change, however. The federal courts that handle
Georgia's cases remain a high hurdle for death-penalty appeals, but in the
state courts, some lawyers who handle such appeals say they've found new
strength in recent U.S. Supreme Court decisions emphasizing the importance
of good lawyering.

"I've seen a shift, certainly in recent years, at the Georgia Supreme
Court," said Thomas Dunn, who heads the Georgia Resource Center, a
non-profit group that provides appellate attorneys for Death Row inmates. "I
think they're trying to make distinctions, and point out really poor
representation where they see it."

All these problems stem from a number of legal inconsistencies, some enabled
by the Supreme Court's work on standards for death penalty counsel; others
posed by the lower courts' handling of those standards.

Some experts, though, say they're all rooted in a fundamental conundrum. The
Constitution doesn't entitle anyone to a perfect defense, just an
"effective" one, according to the Supreme Court. But how do you define an
effective defense?

"Well, almost by definition, you could say that any lawyer whose client is
sentenced to death was ineffective, right?" said Douglas Berman, a law
professor at The Ohio State University who authors a widely read Web log
about sentencing issues.

"Once you try to define it beyond that, to some extent you're inevitably
going to come up with something more nebulous that will be hard for lower
courts to interpret consistently,

" he said.

More rulings, distinctions

In recent years, frustration on the Supreme Court has seemed to escalate in
the face of so many clear cases of lower courts ignoring the high court's
rulings about minimal defense performance.

In Williams vs. Taylor in 2000, the justices scolded a lower court for
applying the wrong standard in reviewing attorney performance in a capital
case. They said the Virginia Supreme Court had disregarded the standard that
the justices set out in 1984 in Strickland vs. Washington and essentially
had come up with its own.

In Wiggins vs. Smith in 2003, the justices issued a stinging opinion that
faulted a Maryland man's lawyers for not following up on clues about his
violent and abusive upbringing. It was notable because the lawyers did a lot
of work on their client's behalf but missed key evidence that the court said
jurors should have known.

In Rompilla vs. Beard in 2005, the justices said that a Pennsylvania man's
lawyers had been ineffective because they similarly failed to follow
important leads.

Applied strictly, these rulings could have resulted in massive numbers of
capital cases being overturned. That could have been especially true in the
four states in which McClatchy reviewed cases, none of which guarantees
quality defense counsel in death-penalty cases.

Instead, the high court's rulings seem to have prompted courts in some
states to draw niggling distinctions between the facts in the cases they
handle and the ones that inspired the Supreme Court precedents. Those
efforts often ignore the high court's big-picture instructions: to ensure
that defense counsel fully investigates a client's background.

The lower courts' behavior inspired one defendant whose case McClatchy
reviewed to seek further clarification from the U.S. Supreme Court.

Michelle Byrom, the only woman on Mississippi's Death Row, filed a petition
last year asking the justices to consider whether the differing
interpretations of ineffective assistance of counsel are themselves
constitutional violations.

Byrom was raped, beaten and forced into prostitution as a child, and had
married a man who abused her for years. At one point, she was so depressed
that she tried to escape him by poisoning herself to death.

After she hired someone to kill him instead, her attorneys didn't
investigate her past. More important, they convinced her to waive her right
to a jury sentencing. No court has overturned her death sentence.

Her appellate lawyers say that's wrong, not only because of the stark facts
of her case, but also because of what it suggests about the idea of quality

In the Supreme Court petition, her attorneys argued that lower courts have
applied wildly inconsistent standards to determine which lawyers were
deficient. They cited several cases from around the country in which it's
difficult, if not impossible, to tell why the courts thought what they did.

Byrom's lawyers had hoped that the high court would agree to revisit the
issue and clarify matters, but it rejected the petition in November.

"Right now, you can't make heads or tails of why things happen," said Van
Williams, one of Byrom's attorneys. "It makes the standard impossible to



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