A new step forward

U.S. Supreme Court decision on incompetent attorneys

By John Coursey

The anti-death penalty movement won a significant victory when the U.S. Supreme Court recognized that Maryland death row inmate Kevin Wiggins was denied a competent lawyer at his trial. In a 7-2 vote, the court ruled that Wiggins' lawyer "fell short of professional standards" by failing to investigate significant mitigating factors which could have persuaded the jury to return a sentence other than death. As a result of this ruling, Wiggins will be given a new sentencing hearing.

This decision will have important ramifications. It reflects the growing public concern that inadequate legal representation has led to improper convictions or death sentences. And it follows two recent Supreme Court rulings that also have the potential to overturn an even greater number of death sentences -- the banning of the execution of the mentally retarded and the right of the capital defendant to be sentenced by jury rather than judge.

Like many on Maryland's death row, Wiggins is a Black man accused of killing a white in the predominately white, middle-class Baltimore County. Wiggins' defense consisted of two lawyers, both of whom had limited experience with capital cases. The Supreme Court's decision criticized the lawyers' failure to investigate Wiggins' background of physical and sexual abuse, despite being privy to two documents informing them of the defendant's social history.

"Given the nature and extent of the abuse," wrote Justice Sandra O'Connor in the majority opinion, "there is reasonable probability that a competent attorney, aware of this history, would have introduced it at sentencing, and that a jury confronted with such mitigating evidence would have returned with a different sentence." One of the lawyers years later told the Baltimore Sun that she was "frankly overwhelmed" during the post-conviction sentencing hearing -- and that she had been "haunted by this case for the better part of 10 years."

Kevin Wiggins is only the second death row inmate since 1984 to have his sentence thrown out by the Supreme Court because of ineffectiveness of counsel. "With regard to why Wiggins now, that is a mystery," says Stephen Bright of the Southern Center on Human Rights. "There have been plenty of people who had lawyers far worse than the ones Wiggins had who have been executed. It may be that Justice O'Connor and some other members of the Court are troubled by all the exonerations and the inescapable fact that the lawyering is so bad in these cases."

"Problems of incompetent defense are rampant in our capital punishment system," explained Jay Nickerson, the lawyer for Tyrone X Gilliam, who was executed by the state of Maryland in 1998. Already, Nickerson is using the Wiggins case to argue for a new sentencing hearing for his client on South Carolina's death row, Calvin Maynard, whose trial lawyers chose to ignore evidence of Maynard's excessive steroid use.

While the Supreme Court decision is a major step forward, it isn't without its limitations. "Wiggins will help us argue that the right to counsel means more than a warm body at counsel table with the defendant, but many of the lower courts will ignore it," said Stephen Bright. In other words, the application of the Wiggins case will often be limited to the subjective opinion of the courts, which often are resistant to overturning death sentences or convictions.

Nevertheless, the decision should be celebrated by death penalty abolitionists. It puts many death row inmates in a better position to argue claims of inadequate legal representation. And it is further proof of a changing death penalty climate. We will have to fight to guarantee that the Wiggins decision lives up to its potential -- and to beat back the many flaws in the system that this ruling won't address.

The New Abolitionist - September 2003, Issue 29
Campaign To End The Death Penalty, Chicago, IL - www.nodeathpenalty.org