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.

Today, the US Supreme Court Considers Whether Victim of Fetal Alcohol Syndrome Can Suffer the Death Penalty

The U.S. Supreme Court is back at work, and today it will begin deciding whether or not it will hear the case of Holmes v. Louisiana. What's at stake is whether or not Brandy Holmes, who is only 23 years old and suffers mental retardation as a result of Fetal Alcohol Syndrome, should die by execution for a 2003 murder.  The case docket is available online.   

Fetal Alcohol Syndrome is a totally preventable cause of mental retardation

When mothers drink alcohol during pregnancy, they damage their unborn child. FAS babies are born with an assortment of disorders, and Fetal Alcohol Syndrome is the leading cause of mental retardation in the world.

Brandy Holmes is known to be a victim of her mother's drinking and suffers from FAS. During Brandy's trial, her mother testified about drinking alcohol all throughout her pregnancy. Get this:  this mother testified that she actually named Brandy after her favorite type of alcohol.  Wow.  There's no factual controversy that Brandy's mental retardation is the result of her mother's drinking alcohol as she carried Brandy.

Thirty-three states already find that the mental retarded should not be executed - what will the US Supreme Court do?

Right now, 33 states have decided it is wrong to execute those who suffer from mental retardation.   For details in the arguments against Louisiana executing this woman, read the amicus curaie brief of the Constitution Project.

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