Habeas Reversal Triggers Stinging Words From Sotomayor

WASHINGTON (CN) – Justice Sonia Sotomayor spoke out Monday against the Supreme Court’s rejection of a death-row case she called “deeply unjust and unfair.”

Todd Wessinger faces execution in Louisiana for the 1995 shooting deaths of two employees at a Baton Rouge restaurant, but Sotomayor noted that the jury that sentenced him “was never presented with significant mitigation evidence.”

“For instance,” the dissent states, “Wessinger suffers from a major neurocognitive disorder that compromises his decisionmaking abilities. As a child, he experienced a stroke in his left frontal lobe that affected how the left and right sides of his brain communicate. He also suffered from childhood seizures, and he has a hole in the area of his brain associated with executive functioning that resulted from some form of cerebrovascular illness.”

Other mitigating evidence that the jury could have considered involved “Wessinger’s family history of poverty, alcoholism, and domestic violence,” Sotomayor wrote.

And Wessinger’s attorneys on postconviction review made similar investigative failings, the justice added.

“The first postconviction counsel to represent Wessinger suffered a mental breakdown and did no work on his petition,” she wrote. “The second attorney was highly inexperienced and had to put together a petition on a compressed timeline. He filed a shell petition to meet the 1-year filing deadline, but failed to immediately seek funding to support a mitigation investigation. He subsequently attempted to rectify that error to no avail.”

Sotomayor noted that the District Court eventually granted Wessinger’s habeas petition on the basis that both trial counsel’s and postconviction counsel’s failure to investigate mitigation evidence constituted ineffective assistance of counsel, but that the Fifth Circuit reversed.

“The panel concluded that Wessinger had not received ineffective assistance of counsel during the postconviction proceedings, and was therefore barred from raising his ineffective-assistance-of-trial-counsel claim in federal court,” Sotomayor wrote. “That conclusion is clearly wrong.”

In turning a blind eye to what she called the “blatant shortcomings” of Wessinger’s counsel, Sotomayor said the panel attributed the lack of mitigating evidence to the denial of funding by the state postconviction court for a mitigation investigation.

For Sotomayor, however, “the denial of funds resulted at least in significant part from counsel’s deficiencies.”

She also noted that Fifth Circuit precedent is firm that “the denial of funds does not excuse counsel’s failure to perform any independent mitigation investigation.”

“The court’s denial of certiorari here belies the ‘bedrock principle in our justice system’ that a defendant has a right to effective assistance of trial counsel, and undermines the protections this court has recognized are necessary to protect that right,” Sotomayor concluded. “Indeed, the investigation of mitigation evidence and its presentation at sentencing are crucial to maintaining the integrity of capital proceedings. The layers of ineffective assistance of counsel that Wessinger received constitute precisely the type of error that warrants relief under this court’s precedent. Yet, Wessinger will remain on death row without a jury ever considering the significant mitigation evidence that is now apparent. Because that outcome is contrary to precedent and deeply unjust and unfair, I dissent from the denial of certiorari.”

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