SCOTUS denies cert in case of death-row inmate whose lawyer relied on 'remorse defense'; two dissent
The U.S. Supreme Court on Monday denied certiorari in the case of a death-row inmate whose lawyer relied on a “remorse defense” rather than investigate the possibility of brain damage.
Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented (PDF) from the cert denial in the case of Clark Elmore, convicted of raping and murdering his stepdaughter in 1995. The court had relisted the case seven times before rejecting it Monday, SCOTUSblog reports.
Elmore’s lawyer had never worked on a capital case when he was appointed to represent the defendant at trial, according to Sotomayor’s dissent. Elmore pleaded guilty based on the lawyer’s advice, without any negotiations with the prosecution. During the penalty phase, prosecutors presented witnesses who talked about the heinous nature of the crime. Elmore had killed his stepdaughter by strangling her with a belt, driving a sharp object through her ear and bludgeoning her with a hammer.
The defense portion of the penalty phase of trial lasted an hour. The only character witnesses were three judges who presided at pretrial hearings. They testified that Elmore sought to plead guilty from the outset. One said Elmore had been “somewhat upset” and “overwhelmed,” while a second said he appeared “dejected.”
A defense investigator gave a short summary of Elmore’s biography, and an expert witness testified that Elmore’s prior convictions for stealing checks, furniture and appliances were not considered violent felonies.
Elmore’s lawyer did not investigate the possibility of brain damage, though he knew Elmore had been exposed to neurotoxins as a young man and had a history of impulsive behavior.
“The jury did not hear,” Sotomayor wrote, “that Elmore had spent his childhood playing in pesticide-contaminated fields and had spent his service in the Vietnam War repairing Agent Orange pumps. The jury did not hear the testimony of experts who concluded that Elmore was cognitively impaired and unable to control his impulses. … The Constitution demands more.”
Testing on the fields decades after Elmore moved away showed toxin levels more than 4,500 times the maximum amounts allowed by law. Experts who tested Elmore before post-conviction hearings found that he was in the bottom 1 percent for ability to control his emotions and impulses, and concluded those problems stemmed from damage to his frontal lobe.
Sotomayor said she would grant the cert petition and summarily reverse on the ground that the lawyer’s performance violated Elmore’s Sixth Amendment right to effective assistance of counsel.
