Part 2: Safeguards in 4 death-penalty states fail regularly

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:

  • Of the 73 cases in which defense lawyers never investigated their clients' backgrounds, only two death sentences have been overturned.
  • Eleven of the 73 inmates have been executed after exhausting their appeals. No court ever noted their lawyers' failures or ordered a remedy.
  • The remaining 60 cases are still on appeal, and the outlook for them isn't promising in three of the states. In Mississippi, no death sentence has been reversed for poor attorney performance since 1993, according to state records. Only three death sentences each in Virginia and Alabama have been overturned for bad lawyering during the last decade. In Georgia, 11 death sentences have been overturned for poor lawyer performance in the last decade, but courts in the state still sometimes overlook the worst efforts.
  • The U.S. Supreme Court, although inundated with requests to intervene in cases in which lower courts ignored attorneys' failures, hasn't moved to enforce its directives.
  • Courts are supposed to determine two things about attorney performance when reviewing death penalty cases: whether the lawyer's work was deficient, and whether a better performance might reasonably have resulted in a different outcome. There should be a particular emphasis, the Supreme Court has said, on reviewing what kinds of background investigations the lawyers conducted into their clients' lives.

    But the McClatchy review found that courts in these four states rarely hold attorneys to exacting standards. They excuse glaring oversights or omissions, explaining them as "strategic" decisions that aren't negligent. They've given credit to lawyers for describing their clients as "good guys" while failing to note the clients' history of mental retardation.

    In the rare instance when they've found a lawyer's performance lacking, the courts have concluded that a better attorney wouldn't have mattered.

    "The courts here just don't apply any sort of rational standard," said Robert Lee, who heads the Virginia Capital Representation Resource Center and handled Vinson's appeals. "So the worst counsel is allowed."

    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 him.

    "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."

    Lee said Vinson's case was made even more problematic by the discord between his lawyers during his trial. Tanya Lomax and John Underwood were embroiled in an employment discrimination suit while they represented Vinson, and were not communicating much about how they'd defend his life. Neither attorney responded to McClatchy's requests for interviews.

    The appeals courts refused to address the spat. They said that Vinson, who'd flunked four grades in school because of his intellectual limitations, fully understood the legal dispute between his lawyers and had waived any objection to their continuing to represent him.


    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, in the southern part of the state. 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 lawyers.

    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 nonprofit 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.

    The late Supreme Court Justice Thurgood Marshall predicted that would happen when the high court first defined ineffective counsel in Strickland v. Washington, in 1984. The justices said lawyers should be held to an "objective standard of reasonableness" in their duties.

    Marshall said those instructions were unclear.

    "To tell lawyers and the lower courts that counsel for a criminal defendant must behave 'reasonably' and must act like 'a reasonably competent attorney,' is to tell them almost nothing," Marshall wrote in dissent. "It will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts."

    It was a prescient observation.

    In some areas of the country, defendants routinely find success arguing that their lawyers were ineffective because the courts in those regions are applying the standard quite strictly.

    It's happened so often in the 6th U.S. Circuit Court of Appeals, in Cincinnati, for example, that Chief Judge Danny Boggs recently opined that defense lawyers who were practicing there might be inclined to perform poorly on purpose so their clients would avoid the death penalty.

    Boggs pointed to more than 15 cases since 2000 that have been overturned for bad lawyering, and said it had become "the primary reason by which a prisoner escapes the affirmance of a death sentence" in his circuit. In the case that inspired his opinion, one defendant had had his sentence reversed three times, all because of his lawyers' performances.

    Boggs suggested that a defense lawyer's worst strategy might be to do a great job. "If counsel provides fully effective assistance, and the jury simply does not buy the defense, then the defendant is likely to be executed," Boggs wrote. "However, if counsel provides ineffective assistance, then the prisoner is likely to be spared, certainly for many years, and frequently forever."

    That isn't true, however, in most of the cases that McClatchy reviewed in Alabama, Georgia, Mississippi and Virginia, where the courts routinely approve even the most minimal effort by trial lawyers. In those jurisdictions, ineffective representation rarely has been an impediment to execution.

    The appeals process itself also complicates matters.

    Once a death sentence has been imposed, the U.S. Supreme Court has said, the presumption at every level of appeal must be that it was reached after a fair trial, the reverse of the presumption of innocence that governs a criminal trial.

    Congress also has made it much harder for defendants to get favorable rulings from federal courts. A 1996 law prevents federal judges from overturning any lower court decisions in capital cases unless those decisions were "contrary to" federal law or involved an unreasonable application of it.

    Courts, including the Supreme Court, have interpreted that law to add significantly to the burden that defendants bear in proving that their cases were constitutionally flawed.

    That burden, combined with an unclear standard, can make it all but impossible for a defendant to succeed.

    A federal judge articulated the courts' dilemma in one of the cases that McClatchy reviewed.

    During an appeals hearing for Darick Demorris Walker, a Virginia man who killed two people during home invasions, Judge J. Michael Luttig, a onetime U.S. Supreme Court candidate who's now general counsel for Boeing, acknowledged having difficulty with the standard.

    Walker's lawyer hadn't submitted evidence of several mental impairments and possible mental retardation at his sentencing hearing. Luttig and the other judges on the 4th U.S. Circuit Court of Appeals found her decisions to be strategic and therefore not legally ineffective.

    "The problem, of course, is that the Supreme Court has defined ineffective assistance at such a low level," Luttig said during the hearing. "I mean I would not want a lot of lawyers representing me whose performance would be fully satisfactory under (the law) ... but that is the law of the land."

    The U.S. Supreme Court reversed the 4th Circuit's judgment in Walker's case, and sent it back for reconsideration. The 4th Circuit reached the same conclusion, and the Supreme Court reversed it a second time, but on a different issue. A lower court now is considering anew whether Walker might be mentally retarded.


    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 v. 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 v. Washington and essentially had come up with its own.

    In Wiggins v. 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 v. 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.

    It happened twice in the case of Robin Lovitt, a Virginia killer whose appeals were handled by Kenneth Starr, the former Whitewater independent counsel who's now the dean of the Pepperdine University School of Law in California.

    Lovitt's lawyers failed to investigate their client's nightmarish upbringing in a home headed by physically and sexually abusive drug dealers. The lawyers never interviewed his family members before the trial and didn't collect any social service or school records.

    But the Virginia Supreme Court said Lovitt's case was different from Wiggins' because Lovitt's lawyers had included some of his recent social history — evidence gathered from his stay in prison — while Wiggins' lawyers had introduced none. Wiggins also had a mental disorder, the court said, and Lovitt did not.

    The 4th U.S. Circuit Court of Appeals adopted the same reasoning and added that Lovitt's trial lawyers had made a "strategic decision" not to dig into his past. The court said the lawyers had feared that prosecutors, who'd argued that drugs were the motive for the murder Lovitt committed, could use his childhood in a home rife with drugs against him.

    "While the lawyers in Wiggins made a decision which resulted from inattention, the lawyers in Lovitt's case made a deliberate choice which resulted from a reasoned, strategic judgment," the court wrote. "We cannot ignore these differences."

    Starr said the courts had provided "no adequate legal answer" to the accusation that Lovitt's lawyers had failed him. "Here," Starr said, "they shielded undisputed professional error."

    Other cases that McClatchy reviewed reveal similar inconsistencies.

    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 representation.

    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 define."

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