U.S. Supreme Court

'Blatant shortcomings' in lawyers' work merited habeas relief, Sotomayor says in cert denial dissent

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Justice Sonia Sotomayor.

Lawyers for a Louisiana death row inmate with a major neurocognitive order never presented that mitigation evidence to jurors and didn’t investigate the issue on post-conviction appeal, according to Justice Sonia Sotomayor.

Yet the New Orleans-based 5th U.S. Circuit Court of Appeals denied Todd Wessinger’s claim that he had received ineffective assistance of counsel during post-conviction proceedings. “That conclusion is clearly wrong,” Sotomayor wrote on Monday in a dissent from a denial of cert in Wessinger’s case.

Wessinger had suffered a stroke as a child that affects how the left and right sides of his brain communicate, Sotomayor said. He also has a hole in an area of his brain associated with executive functioning.

Jurors never heard that information or other mitigation evidence about a family history of poverty, alcoholism and domestic violence because Wessinger’s trial lawyer made no attempt to discover it, Sotomayor said.

Wessinger’s conviction was affirmed on direct appeal without consideration of an ineffective assistance claim because such claims in Louisiana are usually raised in post-conviction proceedings.

Wessinger’s first post-conviction lawyer suffered a mental breakdown and did no work on the petition. The second lawyer was “highly inexperienced” and had to put together a petition in a compressed time frame, Sotomayor said. The second lawyer filed a shell petition to meet a one-year filing deadline but didn’t immediately seek funding for a mitigation investigation. When he tried to correct that error, his request was denied. The lawyer then tried to withdraw, and realized 18 months later that his motion had been denied.

He quickly put together a second amended petition based “on the deficient trial record,” Sotomayor said. “His efforts were too little, too late.”

“Despite these blatant shortcomings,” Sotomayor said, the 5th Circuit majority found the failure to present mitigation evidence was the result of denied funding rather than deficient performance. In any event, a failure to receive funds shouldn’t have excused the lawyer’s failure to perform any independent mitigation investigation, Sotomayor said.

Keeping Wessinger on death row is “deeply unjust and unfair,” Sotomayor said.

“The layers of ineffective assistance of counsel that Wessinger received constitute precisely the type of error that warrants relief under this court’s precedent,” Sotomayor wrote.

Wessinger was on death row for killing two restaurant employees in a restaurant robbery, according to the New Orleans Advocate.

The case is Wessinger v. Vannoy.

Hat tip to SCOTUSblog.

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