High Court Bows Out of|Death Penalty Appeal

     (CN) – In a thoughtful dissent issued Monday, Supreme Court Justice Sonia Sotomayor said her colleagues should have taken up a death penalty challenge because the condemned man’s lawyer “acted deficiently” by telling the jury about his client’s remorse rather than the man’s possible brain damage.
     Born in 1951, Clark Elmore grew up in central Oregon. He lived with his family in a house next to an airport, where crop dusters regularly sprayed pesticides. Decades later, Oregon’s environmental agency found toxin levels around the Elmore home over 4,500 times the maximum allowed by law.
     Later in life, Elmore worked on cars and oil pipelines, melting down lead batteries and handling solvents without protective gear. And while serving in the Vietnam War, Elmore repaired Agent Orange pumps without protective equipment.
     Elmore was honorably discharged in 1972, but found it hard to return to civilian life. He bounced around the United States doing odd jobs and was arrested three times on nonviolent offenses.
     He did, however, experience violence in prison: He was repeatedly raped by another inmate during a two-year stint in a Washington state prison.
     On the outside again, Elmore sexually abused his stepdaughter and – fearing she would report the abuse – strangled her with a belt, drove a sharp object through her ear and then bludgeoned her with a hammer.
     A jury recommended the death penalty in 1995. But according to Sotomayor’s 15-page dissent, jurors heard only about the horrific crime and nothing about Elmore’s troubling background and cognitive disabilities.
     Specifically, Sotomayor said Elmore’s lawyer had never tried a capital case. He got Elmore to plead guilty without any negotiations with prosecutors and during the penalty phase offered a “mitigation case for Elmore that lasted only an hour,” Sotomayor wrote.
     The lawyer’s defense theme was Elmore’s remorse, and the only three character witnesses the lawyer called – all judges before whom Elmore had appeared during pretrial proceedings – testified to that. According to the dissent, the lawyer acknowledged during postconviction proceedings that his inexperience handling capital cases led to his going with that tactic rather than finding experts to testify on the effects of Elmore’s lifelong exposure to toxins.
     “All crimes for which defendants are sentenced to death are horrific,” Sotomayor wrote in her dissent, which Justice Ruth Bader Ginsburg joined. “But not all defendants who commit horrific crimes are sentenced to death. Some are spared by juries. The Constitution guarantees that possibility: it requires that a sentencing jury be able to fully and fairly evaluate the characteristics of the person who committed the crime.
     “That guarantee is a bedrock premise on which our system of capital punishment depends, and it is a guarantee that must be honored – especially for defendants like Elmore, whose lives are marked by extensive mitigating circumstances that might convince a jury to choose life over death,” Sotomayor continued. “Only upon hearing such facts can a jury fairly make the weighty – and final – decision whether such a person is entitled to mercy.”

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