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Ineffectual legal representation may not impede convict's execution

WASHINGTON — The U.S. Supreme Court has insisted repeatedly that defense lawyers in death-penalty cases thoroughly investigate their clients' backgrounds for evidence that might convince juries to save their lives.

So far, however, those edicts have meant nothing for Christopher Scott Emmett.

The court-appointed attorney at his Danville, Va., murder trial never unearthed a trove of records that detailed Emmett's awful upbringing. The state and federal judges who've heard his appeals of his death sentence have shrugged and denied that his lawyer's neglect was significant.

Now Emmett is down to legal Hail Marys after a federal appeals court rejected his claims in late January. On Tuesday, his lawyers filed a petition to have the appeals court rehear the case, but if it's rejected and the U.S. Supreme Court fails to step in, he could be executed before summer.

If he's put to death, his case would be the latest example of Virginia's inattention to the constitutional rights of the accused and of the Supreme Court's unwillingness to do anything about it.

"The more we look into what was done here, the more egregious it seems, honestly," said Matthew Engle, the lawyer who's now handling Emmett's appeals. "This was a pretty easy case to investigate; they just didn't do it."

Emmett's is one of 80 death-penalty cases in Virginia, Georgia, Alabama and Mississippi that McClatchy Newspapers reviewed recently to see how well defense lawyers in those cases represented their clients during the penalty phase. In 73 of them, underpaid or ill-trained attorneys failed to do much at the crucial moment when juries were deciding whether their clients deserved life in prison or death.

Even though attorneys' performances fell short of decades-old American Bar Association standards as well as a string of rulings from the U.S. Supreme Court, McClatchy's review found that appeals courts in the 73 cases were unwilling to overturn the death sentences. In 11 of the 73 cases, the killers have been executed.

Emmett could be number 12.

He was convicted in 2001 of killing a co-worker in a hotel room during a fight over money to buy crack cocaine.

Lawrence D. Gott, who was then the public defender in Danville, where the murder took place, was assigned to represent Emmett.

He investigated his client's background, for use at the stage of the trial when a sentence would be weighed. But he made crucial errors of omission, including some that are addressed in Supreme Court rulings.

The high court has said several times that failing to investigate a client's background or failing to follow up on clues to serious childhood troubles is a crucial error in death-penalty cases. Lawyers, the court said, can't make reasonable strategic decisions based on incomplete investigations.

Gott obtained Emmett's school records and tried to get his extensive juvenile criminal records, but decided against looking into the juvenile mental-health records that he learned about.

Those records, generated after Emmett was ordered into counseling at age 7 because of repeated criminal activity, portray his childhood home as filthy, abusive and chaotic, headed by a mother who was prone to abandoning her children physically and emotionally.

Emmett was diagnosed with a detachment disorder, a mental condition that results from serious neglect of young children. Its chief symptom is an inability to form appropriate relationships with others.

Gott interviewed Emmett's mother and one of his siblings, but he never bothered to talk with his six other siblings. They had horrific stories to tell.

One of the children had shocked herself badly at age 2 by chewing on an electrical cord; her lips were basically welded together on one side of her face. Another sister died, at 9 months old, after suffering an asthma attack when she was left unsupervised. Emmett, as an infant, tumbled down a flight of stairs while unsupervised.

Gott did drive to Wilmington, N.C., to talk to Emmett's childhood probation officer, but he didn't follow up on much of the information she gave him.

Any of that might have convinced jurors to sentence Emmett to life in prison rather than death; at a minimum, jurors would have been required to consider it.

Engle, Emmett's appellate lawyer, said that uncovering all the evidence was quite simple.

The mental health records were available, he said, and Emmett's siblings "were absolutely willing to spill the beans" about their childhood.

"It was really just a matter of following up on obvious leads," Engle said. "You're not even talking about a lot of records, and it's right there."

With an incomplete picture of Emmett's childhood, Gott decided not to use it during the penalty phase of the trial. Instead, he concentrated on arguing that Emmett deserved mercy and he wouldn't be a danger to society.

How Gott chose his defense strategy is as important as the fact that it failed to save Emmett from the death penalty.

In Williams v. Taylor, in 2000, the Supreme Court found that another Virginia man's lawyers failed him when they didn't discover evidence of serious mistreatment, neglect and limited intellect in his background. They ordered a new sentencing hearing.

They cited a similar failure in Wiggins v. Smith in 2003, this time criticizing attorneys in Maryland for not following up on leads in documents that pointed to their client's violently abusive childhood. They overturned the death sentence and sent the case back for a new hearing.

In 2004, in Rompilla v. Beard, the justices drilled down even further on the question of what constitutes a reasonable investigation, and criticized Pennsylvania attorneys for not discovering all the evidence of their client's childhood troubles that was available to them.

Gott knew the siblings were available to testify, he'd learned about the mental health records from Emmett's mother and he knew that the conditions in Emmett's childhood home were dire, from school records and other sources. He simply chose not to follow up on the clues.

Gott declined to comment, saying it would be inappropriate until the case is closed.

Despite the standards governing death-penalty lawyers, Emmett's appeals have gone nowhere.

Virginia courts said tersely that Gott's investigation wasn't inadequate, because neither Emmett nor his family had hinted at the troubles in his background. The Virginia Supreme Court even incorrectly credited Gott with having interviewed all the witnesses Emmett had suggested. Gott himself never claimed as much.

The 4th U.S. Circuit Court of Appeals' opinion is more dutiful in its recounting of Gott's performance, and it concedes that the childhood described in Emmett's appeals paints "quite a different picture of his childhood" from the one described in the cursory testimony that Gott elicited during trial.

Nonetheless, the appeals court rejects Emmett's arguments. The opinion, written by Judge William B. Traxler, justifies the lawyer's incomplete investigation rather than directly addressing the scale of its deficiency.

First, the court blames Emmett for not volunteering information about his childhood and instead describing his upbringing as normal. This, the court said, led his counsel to believe the accounts of his mother and the one sibling who testified at trial.

The court also found that Emmett's case differs from Williams, Wiggins and Rompilla because Gott didn't ignore his duty to investigate. He uncovered lots of information about Emmett's background, and made a decision not to pursue more.

That account differs at least slightly from the one that Gott himself offered in an affidavit.

He says he can't remember why he stopped his investigation before obtaining the mental health records but that he thinks it was because Emmett didn't tell him that anything significant would be found in them.

The appeals court describes the evidence in the mental health records as being a double-edged sword, because bringing it up would have given prosecutors a chance to discuss Emmett's lengthy juvenile criminal record.

Finally, the 4th Circuit says the evidence of Emmett's neglectful childhood wouldn't have produced a reasonable probability that the jury would have reached a different verdict.

In contrast to the "devastating" evidence that Emmett had confessed to killing his co-worker for not lending him money, the court said, the evidence of his childhood wouldn't have been persuasive.

But a sharply worded dissent to the 4th Circuit's 2-to-1 ruling, penned by Judge Roger L. Gregory, makes a simple point about Emmett's case.

The standard for judging Gott's performance, Gregory wrote, is whether his investigation was thorough enough to justify the strategy he chose during trial. It wasn't, Gregory said, because it excluded the mental health records, and Gott's explanation for that omission was "wanting."

Gregory also wrote that the mental health records would have put Emmett's juvenile criminal record, which his attorney wanted to shield from the prosecution, in the proper context. Emmett's criminal behavior consisted of stealing toys and food, acts that the records attribute to his parents' neglect.

Emmett's case, Gregory wrote, was a classic example of ineffective lawyering, according to Supreme Court standards.

Virginia typically schedules an execution after the appeals court denies a rehearing, and it's one of only a few states that set dates before the U.S. Supreme Court has issued its final ruling. Given past practice, Emmett's execution date could come by the end of May, and only a last-minute intervention by the high court will stop it.

"We're getting down to the end, for sure," Engle said. "You just hope someone will step in."

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