The case of capital punishment post changing of the Judge

The sordid facts are of little interest in themselves, but the developing law on capital punishment — especially in view of the changed membership on the high court — merits your attention. The times, they are a-changing.

In the case at hand, the record begins in the late 1970s, when Landrigan was working and thieving in Oklahoma. In 1982 he murdered Greg Brown, whom he called his "best friend," and began a 40-year sentence in prison. While in prison he nearly killed another inmate: "I stabbed him 14 times." On Nov. 10, 1989, he escaped and fled to Phoenix. Three days later he fell in with Chester Dyer. Hard luck for Dyer. Landrigan strangled him, stabbed him repeatedly, and left his mutilated body on the bed they had occupied.

Landrigan was soon caught. A state jury convicted him of first degree murder. After Arizona courts affirmed the conviction and sentence, Landrigan went into federal court on habeas corpus. He lost before District Judge Roslyn O. Silver but won a split decision on appeal to the 9^th Circuit. There Judge Michael Hawkins spoke for the majority in concluding that the defendant's counsel, Dennis Farrell, had failed to defend him adequately. The defendant therefore deserved a fresh hearing on unheard evidence that might have led to a lesser sentence.

Specifically, Judge Hawkins ruled that Farrell should have dwelled upon such factors as these: "his biological mother's use of drugs and alcohol during gestation, his adoptive mother's alcoholism and its adverse effect on Landrigan's upbringing, and information regarding his biological father and his family history of violence." Landrigan was entitled to the testimony of a medical expert who would assist "in establishing mitigating evidence regarding the effects of drug and alcohol use on a developing fetus." The defendant's trial counsel had failed to develop evidence regarding "criminal psychobiology and congenital determinants."

Moreover, defense counsel could have informed the sentencing judge of Landrigan's "tortured family history." His birth parents were "troubled individuals who abused drugs and alcohol." His birth mother had abandoned him. His adoptive mother was an alcoholic who at times consumed a fifth of vodka or more a day until she passed out. She once hit the boy with a frying pan. And so on. Landrigan had alleged facts that, if true, presented a colorable claim of ineffective assistance of counsel.

I read the record quite differently. I would have ruled that defense counsel did all that reasonably could have been done on behalf of an impossibly recalcitrant client. It was a bum rap on lawyer Farrell.

But ne'm mind. The Supreme Court has decided three relevant cases over the past six years. These were Williams in 2000, Wiggins in 2003 and Rompilla in 2005. All three of them turned significantly on a murderer's plea that his lawyers had done him wrong. If only they had developed his history of a Dickensian childhood.

In the case of Terry Williams, the high court split 5-4 in ordering a new hearing for a man sentenced to death in Virginia for a criminal career that began with violent assault, moved on to burglary and armed robbery, and reached a high point with two convictions for murder. Justice John Paul Stevens spoke for five justices in ruling that Williams' counsel had failed to develop evidence in mitigation, e.g., that Williams had been neglected as a child.

In the case of Kevin Wiggins, convicted in Maryland of drowning an old woman in her bathtub, Justice Sandra Day O'Connor spoke for a 7-2 court in vacating his death sentence: Defense counsel had failed to offer evidence of the lad's "limited intellectual capacity and childlike emotional state."

In the case of Ronald Rompilla, convicted of murder in Allentown, Pa., in 1988, Justice David Souter spoke for a 5-4 court in remanding the case. The defendant had a "troubled childhood" that should have been explored.

Since the Rompilla case in June 2005, John Roberts has become chief justice, and Samuel Alito has succeeded Justice O'Connor. As Justice Hugo Black once presciently remarked, in the context of the high court's decisions on school segregation, "No, Mr. Sevareid, the law hadn't changed, but the judges had changed." And yes, ma'am, when the judges are changed, it do make a difference.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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