Courting Death

Momentous rulings about anti-sodomy and affirmative action laws stole headlines last week as the U.S. Supreme Court ended its term, but the talk at the Maricopa County courthouse was about another far-reaching opinion.

By a definitive 7-2 vote, the high court sided with a convicted Maryland killer and said defense attorneys in capital cases have to thoroughly investigate their clients' life histories before deciding how to proceed with mitigation during sentencing.

That very issue is being hotly contested locally, as "mitigation specialists" have been at war with county judges and with the attorneys for whom they work, complaining about the lack of time and resources they get to do their jobs properly ("Off With Their Heads," Paul Rubin, June 26)

Written by Justice Sandra Day O'Connor, the majority opinion in Wiggins v. Smith greatly increases the chance that defendants in several states, including Arizona, will be able to prove their attorney's work fell short of what the law requires.

The case involved a Maryland man, Kevin Wiggins, who was convicted in 1989 of killing a 77-year-old woman. Police found the victim in her ransacked apartment, drowned in her bathtub: She still was clothed, but was missing her underwear and, oddly, had been sprayed with an ant-and-roach killer.

Wiggins was caught using the woman's credit cards and driving in her car. Authorities found no physical evidence tying him to the crime, but he had worked as a painter in her apartment complex on the last day she was seen alive. He continues to deny that he killed the elderly woman.

After his conviction by a judge, Wiggins -- who is borderline mentally retarded -- asked to be sentenced by a jury. In opening statements during the sentencing phase, one of his attorneys told the jurors they would hear about his difficult life.

Such evidence apparently was never introduced. In fact, the only mitigation that the jury heard was that Wiggins had no prior felony convictions.

The jury returned its death verdict after a few hours of deliberation.

Wiggins' appeal then began a torturous trek through the state and federal systems, finally landing in the U.S. Supreme Court -- which rarely chooses to tackle cases involving allegations of bad lawyering in death cases.

But this case especially bothered the majority.

During the appellate phase, a social worker testified Wiggins had suffered severe physical and sexual abuse from several people during his early years (he was 27 at the time of the murder) at his mother's home and at foster homes.

In her opinion, Justice O'Connor noted her main concern wasn't whether the Wiggins defense team should or shouldn't have presented mitigation, but if the investigation supporting their decision not to go that route had been adequate.

According to O'Connor and six of her colleagues, it hadn't been close.

"Any reasonably competent attorney would have realized that pursuing such leads was necessary . . ." she wrote. "Had [the defense] been able to place his excruciating life history on the mitigation side of the scale, there is a reasonable probability that at least one juror would have struck a different balance . . . Wiggins has the kind of troubled history we have declared relevant to assessing a defendant's moral culpability."

In his dissent, Justice Antonin Scalia said O'Connor's reasoning ranged from "the incredible up to the feeble," and said introducing evidence that Wiggins had suffered continued sexual abuse as a child "could have led the jury to conclude that this horrible experience made Wiggins precisely the type of person who could perpetuate this bizarre crime . . ."

But Arizona State University law professor and criminal-law expert Gary Lowenthal says that Wiggins should send a powerful message to local defense attorneys.

"The culture of the defense bar in Maricopa County has to change," says Lowenthal, who has worked both as a defense attorney and as a prosecutor. "If the sentencing law here stays the way it is, defense attorneys are going to have to begin their mitigation work in earnest the day they begin to represent someone. That's absolutely a must, but it hasn't been happening. Number two, if Arizona wants to have a death penalty, it's going to have to fund it to meet constitutional requirements."

Maricopa County's presiding criminal court judge agrees with Lowenthal that Wiggins is "definitely relevant" as to how capital cases should proceed locally.

"Criminal-defense lawyers are so busy that front-loading mitigation -- starting to investigate right away -- is a difficult concept for them," says Judge Edd Ballinger Jr. "Wiggins tells us, `You don't have a choice, when push comes to shove, you have to do what the law requires.' Where it gets tricky is that there are competing considerations -- economics, the rights of victims, and so on. But we definitely don't want these cases coming back here on appeal years later, to be retried at twice the cost."

The Wiggins decision came almost a year to the day after another momentous opinion by the U.S. Supreme Court in a death-penalty case. In June 2002, the court in Ring vs. Arizona said juries must consider factors that may make a defendant eligible for execution.

That led the Arizona Legislature last summer to pass new laws that have juries do the sentencing in capital cases, not judges. Importantly, the sentencing phase now is supposed to start a few days after a guilty verdict, not several months or even more than a year afterward. Each of the six Maricopa County juries who have gotten to the sentencing phase since the Ring laws went into effect has returned a verdict of death.

Assistant federal public defender Dale Baich says Wiggins "is not that difficult to understand. Everyone has been put on notice, including the judiciary, about what needs to be done in capital cases. The judges here have to allow the lawyers to do the proper investigation, the proper digging. And the lawyers shouldn't go forward in any of these cases until they get adequate funding from the courts and adequate training."

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Paul Rubin
Contact: Paul Rubin