Georgia Kidnapper Wins Review of Death Sentence

     (CN) - The Supreme Court on Tuesday told Georgia courts to reconsider the death sentence of a convicted kidnapper, citing new evidence that childhood abuse and head injuries significantly impaired his impulse control.
     Demarcus Sears is the only Georgia convict to be sentenced to death for a crime other than murder. He was convicted of kidnapping with bodily injury after he and an accomplice kidnapped a woman in Georgia and killed her in Kentucky.
     Sears had challenged the constitutionality of his death sentence for mere kidnapping, but the high court considered only his Sixth Amendment claim that his attorney's mitigation theory flopped.
     Since Sears' sentencing, psychological experts have reported that Sears suffers from "significant frontal lobe abnormalities" stemming from a history of "multiple head trauma, substance abuse and traumatic experiences."
     Sears' attorney did not offer this evidence during the sentencing phase, however. Instead, witnesses testified that a death sentence would shock and devastate Sears' stable, middle-class family.
     "But the strategy backfired," the Supreme Court wrote. "The prosecutor ultimately used the evidence of Sears' purportedly stable and advantaged upbringing against him during the state's closing arguments."
     Evidence later surfaced that Sears tested at or below the first percentile in several categories of cognitive function, "making him among the most impaired individuals in the population in terms of ability to suppress competing impulses and conform behavior only to relevant stimuli," according to expert assessments.
     The trial court acknowledged that Sears' Sixth Amendment right to effective counsel had been violated, but said it was "impossible to know" if the error had prejudiced Sears.
     In an unsigned opinion, the justices cited two errors in the lower court's ruling. First, it had relied too heavily on the assumed "reasonableness" of the attorney's mitigation theory -- that a death sentence would devastate Sears' middle-class family.
     "Second, and more fundamentally, the court failed to apply the proper prejudice inquiry," the justices wrote.
     The court vacated the Georgia court's ruling and sent the case back to state court.
     In a dissenting opinion joined by Justice Clarence Thomas, Justice Antonin Scalia argued that the new mitigation theory would unlikely change Sears' death sentence.
     "While the court takes pain to describe all the elements of Sears' new mitigation theory, down to the silliest, it does not trouble to describe the brutal circumstances of the crime -- which are at least just as relevant to assessing whether the different mitigation theory would probably have altered the sentence," Scalia wrote.
     "But the jury heard all about them. They heard Sears' confession that he kidnapped, raped, and murdered Gloria Wilbur, a 59-year old wife and mother." Scalia remained skeptical that substituting the "deprived-childhood-cum-brain-damage" defense for the "good-middle-class-kid-who-made-a-mistake" defense would have altered the verdict.
     Chief Justice John Roberts and Justice Samuel Alito said they would have turned down the case.