Sotomayor's First Criminal Opinion Disappoints

By Jeralyn, Section Court Decisions
Posted on Wed Jan 20, 2010 at 07:36:31 PM EST
Tags: death penalty, habeas, AEDPA (all tags)

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Supreme Court Justice Sonja Sotomayor's issued her first signed criminal opinion this morning in Wood v Allen, upholding the death penalty for a man with a borderline IQ. It affirms the 11th Circuit's denial of habeas relief, deferring to the Alabama Supreme Court's decision under AEDPA that defense counsel was not ineffective, because he made a "strategic decision" not to present evidence of the mental deficiencies.

Justice Stevens and Kenney dissented. (Opinion here.) [More...]

The man, Holly Wood, convicted in 1994 by a court in Alabama of murdering a former girlfriend, was represented during his murder trial by three court-appointed attorneys, including one just out of school and with no experience on a capital case.

The young lawyer took charge of the sentencing phase of the case after Wood had been found guilty and jurors were deciding if he would get life in jail or the death penalty. Jurors picked execution by 10 to two. The Supreme Court found that the attorney deliberately chose not to present findings about Wood's mental profile for fear it would hurt him.

Wood had three lawyers, two experienced, one right out of school. The young, inexperienced lawyer was put in charge of the death penalty phase. All three lawyers read the experts report finding Wood mentally deficient, and the young lawyer, being in charge, decided not to bring it to the jury's attention, for fear they would hold it against him.

Sotomayor says the Alabama court's finding that this was a strategic decision, not a negligent omission, is a reasonable one.

In this case, petitioner, a capital defendant,challenges the key factual finding made by the Alabama state court that denied his application for postconviction relief: that his attorneys’ failure to pursue and resentmitigating evidence of his borderline mental retardation was a strategic decision rather than a negligent omission. Petitioner argues that the state court’s finding was unreasonable...

We conclude, however, that the state court’s factual determination was reasonable...

The factual determination upheld today:

As to Wood’s claim of mental retardation, the court found that, while the evidence suggested that he “probably does exhibit significantly subaverage general intellectual functioning,” he had failed to show “that he has significant or substantial deficits in his adaptive functioning.”

What a disappointment from our newest justice.

Update: I just noticed this footnote in her opinion discussing the dissent:

The dissent suggests that counsel could not have made a strategic decision not to pursue evidence of Wood’s mental deficiencies because there could be no reasonable justification for doing so.... This interpretation conflates the question whether a decision was strategic with the question whether a strategic decision was reasonable.

Sounds like she is playing word hockey when a man's life at issue.

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Sotomayor's First Criminal Opinion Disappoints | 38 comments (38 topical)

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The confirmation process corrupts them (5.00 / 2) (#2)
by NealB on Wed Jan 20, 2010 at 07:45:57 PM EST

Who knows? Maybe she's just another pro-death jurist at heart. Maybe she wasn't.

God knows as time goes on the Supreme Court becomes, more and more, the death panel.

Would you characterize Justices Breyer (none / 0) (#13)
by oculus on Wed Jan 20, 2010 at 08:33:08 PM EST

and Ginsburg as "pro death penalty"?


: I know when I was 13 years old... (none / 0) (#16)
by NealB on Wed Jan 20, 2010 at 08:53:03 PM EST

...in 1972 the Supreme court held in Furman vs. Georgia that the death penalty was unconstitutional as cruel and unusual punishment.
Neither Breyer nor Ginsburg were members of that court, so it's reasonable to assume they don't care.

no do-overs (5.00 / 1) (#23)
by diogenes on Wed Jan 20, 2010 at 09:27:46 PM EST

He did it (undisputed) and his intelligence was borderline. These second chance lawsuits just set up a chance for do-overs. I suppose that if the "inexperienced" lawyer did introduce intelligence evidence and it didn't work then the appeal would cite his incompetence for doing so and demand a new hearing.

BTW, hello Sher... (5.00 / 1) (#39)
by FoxholeAtheist on Thu Jan 21, 2010 at 07:17:14 PM EST

Question: have you not noticed that when you give a comment a low-ball rating it can bump the comment to a higher position on the thread than the comment had prior to rating? Thanks for that old frenemy ;-)

Obama appointee is disappointing - hard to imagine (2.00 / 1) (#17)
by FoxholeAtheist on Wed Jan 20, 2010 at 08:54:07 PM EST

how it could be otherwise. And for good measure, Sotomayor has the audacity to make digs at the dissenting opinion of her senior Justices Kennedy and Stevens:

The dissent suggests that counsel could not have made a strategic decision not to pursue evidence of Wood's mental deficiencies because there could be no reasonable justification for doing so.... This interpretation conflates the question whether a decision was strategic with the question whether a strategic decision was reasonable.

Talk about wormy wording. Who's she channeling there, Rumsfeld or Obama?

BTW, what happens when a so-called "strategic decision" is unreasonable?

she may be disappointing (5.00 / 1) (#25)
by Jeralyn on Wed Jan 20, 2010 at 10:05:25 PM EST

but she's unquestionably better than someone McCain would have appointed.


The tiresome rejoinder (5.00 / 2) (#32)
by Cream City on Thu Jan 21, 2010 at 10:03:45 AM EST

to all things that a Democratic president does just doesn't work anymore.


: The rejoinder is especially problematic (5.00 / 1) (#36)
by FoxholeAtheist on Thu Jan 21, 2010 at 06:32:46 PM EST

considering that Sotomayor replaced liberal-leaning Justice David Souter who was a George H.W. Bush appointee.
If Sotomayor's "disappointing" ruling in this particular death penalty case is any indication of what she'll do in the future, it suggests that this Obama appointee may turn out to be more conservative than her Republican-appointed predecessor.

We'll never know (none / 0) (#26)
by cawaltz on Wed Jan 20, 2010 at 10:21:12 PM EST

since McCain didn't win. Is this where I get to say "conjecture?"


Yes, but... (none / 0) (#27)
by McKinless on Wed Jan 20, 2010 at 10:48:09 PM EST

it sure feels like a lost opportunity by Obama. Again.

I long for a David Souter, Hugo Black, Earl Warren, Harry Blackmun--someone who stood taller and did more than his (her) reputation would suggest. Maybe she (Sotomayor) will yet.


: Every time someone says Souter I smile (none / 0) (#29)
by cawaltz on Thu Jan 21, 2010 at 02:10:52 AM EST

He caused many apoplectic fits from the right side of the aisle.....especially since they put him in thinking he'd be a reliable conservative vote.
Hope Sotomayer ain't our Souter cuz' you never know.

That's a horrible defense of a bad appointment (none / 0) (#31)
by zaladonis on Thu Jan 21, 2010 at 08:21:13 AM EST

There were better choices OBAMA could have made, as some of us pointed out at the time -- and then got called racist for not supporting Sotomayer's appointment. Just like we got called racist for not supporting Obama.

And as events continue to unfold it really hasn't changed. Too bad those who were wrong still haven't learned to listen to those who were right.

We were handed 2006 and especially 2008 because voters were fed up with Bush & Co, not because they yearned for people with a "D" next to their name controlling Washington. If Democrats don't start making better choices, this great opportunity will be gone before you know it. As Massachusetts just showed us.


: A defensive defense perahps... (none / 0) (#35)
by FoxholeAtheist on Thu Jan 21, 2010 at 05:44:58 PM EST

which may be offensive to some.

Not her first signed decision (none / 0) (#1)
by andgarden on Wed Jan 20, 2010 at 07:40:49 PM EST

That would be Mohawk Industries, Inc. v. Carpenter.

changed it to first signed criminal opinion (none / 0) (#3)
by Jeralyn on Wed Jan 20, 2010 at 07:46:26 PM EST

reading the legalese in that (none / 0) (#4)
by cawaltz on Wed Jan 20, 2010 at 07:51:33 PM EST

makes me deide that I should have greater respect for lawyers.

Anyway, I think I liked that decision better than this one.

(at least if my interpretation is right)


BTD wrote a post on that one (none / 0) (#7)
by andgarden on Wed Jan 20, 2010 at 07:54:19 PM EST

he even discussed it with Arlen Specter.

Not a good decision in his opinion, or mine.


He blindsided Arlen. (none / 0) (#11)
by oculus on Wed Jan 20, 2010 at 08:13:30 PM EST

: I read the case (none / 0) (#18)
by cawaltz on Wed Jan 20, 2010 at 08:55:45 PM EST

but I guess I don't really understand the far reaching implications the same way someone like BTD who happens to represent clients who have multiple lawsuits going on might.
It didn't look awful on its face to me but I guess I identify more with Carpenter rather than Mohawk. :)

How about Justice Sotomayor's (none / 0) (#5)
by oculus on Wed Jan 20, 2010 at 07:52:26 PM EST

first majority opinion in a criminal matter?


So if lawyers make incorrect decisions ... (none / 0) (#6)
by cymro on Wed Jan 20, 2010 at 07:52:57 PM EST

... because they are incompetent, they are still not negligent provided they deliberate before making a decision?

I guess the corollary to this is that, in the eyes of the law, it is actually impossible for any lawyer to be incompetent, as long as they know how to correctly go through the motions of being a lawyer.

The rest of us don't have the benefit of this kind of convoluted reasoning. We actually have to be competent to keep our jobs.

: You're right (none / 0) (#19)
by cawaltz on Wed Jan 20, 2010 at 09:00:43 PM EST

It's entirely convoluted. Considering someone's life is hanging in the balance you'd figure whether withholding the guys mental state was strategy or not should not be the question. Then again I never considered that justice was supposed to be some game where if you didn't have the appropriate strategy then you get to forfeit your life. Pretty crappy.

Jury in penalty phase voted 10-2 (none / 0) (#8)
by oculus on Wed Jan 20, 2010 at 07:55:37 PM EST

for death penalty? Doesn't it have to be a unanimous jury?

Cursory research reveals trial (none / 0) (#10)
by oculus on Wed Jan 20, 2010 at 08:12:29 PM EST

judge may impose death penalty even though jury previously recommended no death penalty.


Right. (none / 0) (#12)
by Peter G on Wed Jan 20, 2010 at 08:29:26 PM EST

The Supreme Court allows the states a fair amount of latitude as long as the process is "fundamentally fair" and not "cruel and unusual." Each state's process, if its Legislature chooses to have a death penalty, must provide a mechanism for (supposedly) sorting out all but the worst cases of intentional murder, involve an individualized weighing of narrowly pre-defined aggravating circumstances against open-ended mitigators, and not be discriminatory. Supposedly.


Has SOCTUS ruled on non-unanimous (5.00 / 1) (#14)
by oculus on Wed Jan 20, 2010 at 08:34:12 PM EST

jury in penalty phase and/or judge overriding jury's recommendation not to impose death penalty?


Judge override of jury recommending life (none / 0) (#21)
by Peter G on Wed Jan 20, 2010 at 09:18:45 PM EST

yes - upheld in Spaziano v. Florida (1984). Non-unanimous verdict where jury decides death penalty, No, as far as I know the S.Ct. has not upheld that (or rejected it). In non-capital cases, a 10-2 verdict is ok, though, if allowed by state law. Apodaca v. Oregon (1972).


Amazing as to all issues. Best to research (none / 0) (#22)
by oculus on Wed Jan 20, 2010 at 09:22:27 PM EST

state law before committing a crime I guess.


Peter G, further to my earlier comment (none / 0) (#24)
by FoxholeAtheist on Wed Jan 20, 2010 at 09:41:19 PM EST

(#17), what happens when a so-called "strategic decision" is arguably unreasonable?

As in the Wood's case, where his death penalty phase attorney did not apprise the jury of his client's mental deficiency "for fear they would hold it against him".


The defendant's right to counsel (5.00 / 1) (#28)
by Peter G on Wed Jan 20, 2010 at 10:54:08 PM EST

under the 6th Amendment, includes a requirement that counsel afford "effective assistance." The standard for this, under the case law, is pretty darn low. Since criminal defense lawyers have to make all sorts of professional judgment calls in cases, often in a short time frame or even in an instant, yet with potentially serious consequences to another person's life or liberty, the courts try to assess this w/o "the benefit of hindsight." One way they do that is to require only that the lawyer have made a "strategic decision in the interests of the client," not necessarily that s/he have made the right decision. Apparently, the majority of the S.Ct., per Sotomayor, thinks that a judgment call can be legitimately "strategic" w/o being "reasonable." If you'd asked me yesterday, I would have said that was wrong. Maybe it is wrong, but a majority of the S.Ct. = The Law. As to whether the lawyer's judgment in this case was "unreasonable, I wonder. Many ordinary people, even those who recognize mental illness or unusually low mental functioning as mitigating because it makes the defendant less blameworthy, would also think that mental illness or deficiency that contributed to a person's willingness to commit a premeditated murder also tends to make that person more dangerous than a "normal" murderer. The jury might indeed give more weight to the latter consideration than to the former. Honestly, I don't necessarily think that's an easy call.


: But as a criminal defense attorney (none / 0) (#30)
by jbindc on Thu Jan 21, 2010 at 08:12:37 AM EST

Doesn't that also say that if you make a strategic call, and you turn out to be wrong, it doesn't necessarily mean you were incompetent or negligent, therefore a defendant has no 6th Amendment claim? From what I remember about criminal procedure, the fact that a person has a law degree and is a licensed member of the bar, automatically makes them "competent" to argue any type of legal issue. The question then becomes do they have enough experience to do so? (That darn experience thing again!) For example, someone who is a real estate attorney is legally competent to argue criminal cases, but would probably not be the best choice since they don't have that particular experience.
In this case, the lawyers were court-appointed appellate lawyers, which means, at least in most places, that they had experience and specialized in death penalty cases. Why a newbie lawyer was put on as lead is beyond me.
Would you as a criminal lawyer want to be called to answer before the bar for every strategic decision you made in defending a client that turned out to be a loser? And would you argue that because someone has a low IQ (but not clinically considered "mentally challenged", as in this case) that they do not know the difference between right and wrong?

: Thanks so much (none / 0) (#37)
by FoxholeAtheist on Thu Jan 21, 2010 at 06:55:34 PM EST

Peter G, for the thoughtful, thorough reply. In part you said:
Many ordinary people, even those who recognize mental illness or unusually low mental functioning as mitigating because it makes the defendant less blameworthy, would also think that mental illness or deficiency that contributed to a person's willingness to commit a premeditated murder also tends to make that person more dangerous than a "normal" murderer.

The foregoing may be true of "many" people, but perhaps not most people. Insofar as it may be true, it may be that certain jurors might be more inclined to recommend life imprisonment for a a mentally deficient defendant vs. a "normal" defendant.
However, at this point in time, I have a hard time believing that jurors would be more inclined to recommend the death penalty for a mentally deficient defendant vs. a "normal" defendant - especially since the law itself does not favor execution of mentally deficient defendants. Than again, IANAL (I am not a lawyer).

Jeralyn, somewhat OT (none / 0) (#9)
by Zorba on Wed Jan 20, 2010 at 08:01:35 PM EST

But it does involve a recent Supreme Court case. What the heck happened here, and why did the 11th Circuit Court of Appeals rule that the defendant was not entitled to discovery and a hearing? Not just possible withheld evidence, but an overly-chummy, not to say inappropriate relationship between the jury and the judge and bailiff. Chocolate genitalia and breasts????? Link

That case is Wellons v. Hall (5.00 / 1) (#15)
by Peter G on Wed Jan 20, 2010 at 08:46:01 PM EST

decided yesterday, 1/19. The Court of Appeals ruled that Wellons' complaint that the jury and judge had secret "humorous" contact during his capital trial was "procedurally barred" from being heard on the merits in a federal habeas corpus proceeding. The U.S. Supreme Court -- making clear that it was offended at the kind of "gifts" that the jurors gave the judge and bailiff, and the less-than-serious attitude toward their duties in a capital case that this implied -- ruled that the lower federal courts had wrongly accepted as valid the Georgia Supreme Court's totally disingenuous and illogical refusal to entertain the issue in state court. So it was sent back for a real hearing, in federal court, to find out what happened and whether Wellons was denied a fair trial. The vote to do this, in the U.S. Supreme Court, was 5-4.


: Thank you, Peter G (none / 0) (#20)
by Zorba on Wed Jan 20, 2010 at 09:08:09 PM EST

That's a pretty clear explanation.

I am not dissappointed. (none / 0) (#33)
by nyrias on Thu Jan 21, 2010 at 11:23:34 AM EST

""probably does exhibit significantly subaverage general intellectual functioning," he had failed to show "that he has significant or substantial deficits in his adaptive functioning."

That basically means that the guy was STUPID but not RETARDED. Also note that he has a girl friend (before she was killed) so he cannot be too abnormal.

When is stupidity a defense for any wrong doing?

: Right you are DA... (none / 0) (#38)
by FoxholeAtheist on Thu Jan 21, 2010 at 07:06:58 PM EST

A young child may know the difference between "right and wrong", yet s/he lacks the impulse control and complete grasp of actions and consequences that we expect of fully developed adults with non-impaired mental function.