US Supreme Court Heard Oral Arguments Yesterday in Wood v. Allen, reviewing Actions of Defense Counsel in Sentencing Phase

Representing clients facing the sentence of dying by the government's hand for crimes they have allegedly committed is what I do.  And, while I represent clients in both phases of a death penalty case, I am particularly known for my work in representing defendants during the sentencing phase. 

So, I'm watching Wood v. Allen with particular interest as it winds its way through review by the highest court in the land.

By way of background, a man named Holly Wood was convicted in an Alabama court of killing his girlfriend.   He was sentenced to die for this act.  Mr. Wood was represented by defense counsel, and Mr. Wood is now arguing that he received ineffective assistance of counsel at the trial because one of his trial lawyers failed to introduce key evidence during the sentencing phase of the trial. 

What was that crucial evidence?  It was evidence of a mitigating factor to be considered in Mr. Wood's sentencing -- that he was mentally retarded. 

Holly Wood had three lawyers during the trial, but like many death penalty cases the defense duties were divided, and it's uncontested here that the lawyer responsible for the sentencing phase of the case was a novice.   And here is where things get complicated.

As Mr. Wood's case manuevered through the waters of the state appellate process, his appellate counsel argued that this novice attorney did not provide adequate representation -- and all the state reviewing courts failed to agree.  Instead, they held that Wood's more experienced counsel intentionally withheld the mental retardation evidence as part of their overall trial strategy. 

Entering the federal appellate system under a writ for habeas corpus under the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal district court went Wood's way and the Eleventh Circuit Court of Appeals reversed, opining that that the AEDPA limits review to "...whether there is evidence to support the state courts' findings" and the Alabama court's fact finding was reasonable since Wood failed to show that the defense decision not to present the evidence was not strategic.   Of course, there was a strong dissent which wisely pointed out that the Eleventh Circuit opinion was based upon nothing but "pure speculation" that not presenting key mitigating evidence was a "strategic decision."

There are several critical things to be considered in the Wood case, not the least of what are these two: 

(1) procedurally, the AEDPA limits the power that a federal court has in reviewing state court decisions regarding the death penalty and is this right?  (Most of the oral argument involved an analysis of the AEDPA's application to the Alabama case.)   And how badly written is this law (the two provisions addressed in Wood arguably support that this legislation was very badly drafted)? 

(2) a man faces death here -- a man that no one is arguing is mentally retarded.  It's not subject for debate that it is cruel and unusual punishment to execute someone who is mentally retarded.  That was already decided in Atkins v. Virginia.  

Still, despite the procedural loggerheads of the AEDPA and the reality that Mr. Wood is mentally retarded, Holly Wood may well be put to death by the State of Alabama.  Consider the comments of Justice Scalia during the arguments yesterday, where he stated that the defense counsel had been savvy not to put the mental retardation facts into evidence at trial because "[t]here was nothing here that was going to help them, and there might be stuff that would hurt them."   Practically speaking, following Scalia's way of thinking, should we allow a mentally retarded man to be executed assuming arguendo that it was best during the trial phase not to reveal his mental incapacities?

The transcript of the oral argument heard by the US Supreme Court yesterday in Wood v. Allen  is already online for your review.

Death Row Inmate Troy Davis' Defense Attorney Tom Dunn Gives Up Law, Starts Teaching Career

Troy Davis is a name you probably recognize because of the international movement to free him as an innocent man, wrongfully convicted and sentenced to death by the State of Georgia. We've posted about Troy Davis here, and support the efforts to free him.

Who is Tom Dunn?

The name Tom Dunn probably isn't one you recognize, however. Tom Dunn is a criminal defense lawyer with over 20 years experience in the defense of capital/death penalty cases -- and Mr. Dunn acted as defense counsel for Troy Davis.

As the head of the Georgia Resource Center, Tom Dunn worked tirelessly as the nonprofit group sought justice for Troy Davis and many others. Now, Tom Dunn has apparently had enough.

Tom Dunn isn't going to be a lawyer anymore.

Beginning this year, Mr. Dunn is a middle school teacher. Specifically, he's teaching students at Martin Luther King Jr. Middle School -- an Atlanta school within walking distance from his old law firm, and where 97& of the student body qualifies for free/reduced lunches.

Why the career change?

You might be thinking burn out, or disillusionment with the current system of justice in this country.  Who could blame Tom Dunn if these were his reasons?  Death Penalty defense is the hardest job for a defense attorney -- you've literally got someone's life in your hands.  Passion, tenacity, and a strong moral commitment are just three necessary components to doing this work.   With Troy Davis being stonewalled time and again, it would be easy to understand throwing up your hands, throwing in the towel in frustration....

However, none of that applies.  Tom Dunn changed careers for health reasons:  he's got heart problems and the stress of Death Penalty defense doesn't jive with a condition that has left him with the heart of an elderly man.  

Death Penalty Defense Work Doesn't Lend Itself to "Gone Fishin'"

Obviously, Mr. Dunn could have retired and just "gone fishing."  Many do when faced with health crises like his.  And that's fine.  But what does one do with all the zeal, the knowledge and compassion, with the warrior that still has the need to right wrongs? 

It's one thing to resign your position, but being a Death Penalty defense attorney isn't something that you can just quit.  It's a field of work where the boundaries get blurry, and part of what you do becomes part of what you are. 

Today, Tom Dunn is taking all those years of experience and the wisdom culled from a Death Penalty Defense career, and he's helping young people see their potential, teaching them things that are not just in textbooks.   Tom Dunn is still in the fight, just on a different battlefield. 

And our hats are off to brother Tom Dunn. 

 
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