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.

Washington Sniper Seeks Clemency With Mental Illness Argument To Halt Nov 10th Execution

At this point, it's pretty late in the legal game for John Muhammad, known as The Washington Sniper.  Tried and sentenced to death for the killing of Dean Meyers, the victim of a sniper's bullet at a Manassas, Virginia gas station in 2002, Muhammad has already exhausted appellate avenues aside from the United States Supreme Court.  His attorneys have announced they'll be filing an appeal with the Supreme Court on or before November 3rd.

Asking for Clemency Now Rather than Later

Usually, going to the Governor with a clemency request wouldn't happen until all the court remedies had been exhausted.  With the Washington Sniper, the strategy is different.  Already, his attorneys have met with Virginia Governor Timothy Kaine -- and they've shown the governor a video prepared to support their position.

Mental Illness as a Bar to the Death Penalty

There is already precedent from the United States Supreme Court (Ford v. Wainwright) holding that the mentally ill cannot be condemned to die because it constitutes cruel and unusual punishment. 

Why urge clemency with the Governor's Office now?

At the Devine, Connell, Sheldon & Flood website, defense counsel have posted their arguments in the unusual clemency request: 

  • 1.  a juror has said they would not have voted for death if they had known of Muhammad's mental illness; 

  • 2.  experts report that the Washington Sniper suffers from severe mental illness, and this is documented by his brain damage, brain dysfunction, and other neurological deficits as well as his psychotic and delusional behavior; 

  • 3.  he may additionally suffer from Gulf War Syndrome. 

According to media reports, the Governor hasn't been that open to considering clemency for the Washington Sniper -- he's said so, and his office has also leaned on the standard operating procedure of clemency considerations occuring only after judicial review is finished.  

It's an interesting and aggressive tactic that the Sniper's defense counsel is taking.  For all of us that oppose the death penalty, we're rooting for 'em.

Will a mentally retarded man, Michael Bies, be put to death in Ohio?

This morning, at 11:00 EST, oral arguments will begin before the United States Supreme Court on whether or not a federal appeals court (the 6th Circuit) interfered with a state court death penalty case where the defendant was found to be mentally retarded. And while that sounds very procedural and legalistic, whether or not Michael Bies will be executed by the State of Ohio is the real issue here.

The case, Bobby v. Bies (08-598), has the Solicitor General of Ohio, Benjamin C. Mizer, arguing for the warden. Professor John Blume, of Cornell Law School, is advocating for Michael Bies.

It's Already Been Decided that the Death Penalty Cannot Be Imposed Upon Mentally Retarded Individuals

Back in 2002, the Supreme Court already held that the execution of mentally retarded individuals violates the due process provisions of the Eighth Amendment (Atkins v. Virginia). Today, the High Court is looking at double jeopardy protections. Specifically, in the Bies case, the focus will be whether or not double jeopardy protects a defendant at a state (not federal) post-conviction hearing where mental competency is being assessed pursuant to Atkins, when the issue of the defendant's "borderline mental retardation" had already been recognized earlier, by the state supreme court.

The Underlying Case

Over fifteen years ago, in 1992, Michael Bies was sentenced to death by an Ohio court for the murder of a ten-year-old boy. Like in Florida, the adjudication of guilt was followed by a consideration of the just penalty. During Ohio's penalty phase of his trial, Michael Bies' counsel presented mitigating evidence involving expert testimony by a psychologist that Bies was mildly to borderline mentally retarded based upon his IQ scores.

The Ohio Supreme Court recognized Bies' "borderline mental retardation" as a mitigating factor, but still found that the aggravating circumstances outweighed the mitigating factors. The Ohio high court affirmed his death sentence.

Bies entered the federal system via a petition for habeas corpus based upon the Eighth Amendment, i.e, that his mental retardation prohibited the death penalty. Following Atkins v. Virginia, the federal district court directed Bies to return to state court to seek relief.

Bies did so, arguing that double jeopardy now precluded the state from relitigating his mental capacity. Ohio appealed, the Sixth Circuit affirmed, and the Supreme Court granted cert.

To read briefs in this case, go here.
To read the opinion in Atkins v. Virginia, go here.

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