(CN) – Two liberal justices dissented Monday from the Supreme Court’s decision not to hear a case involving mitigating evidence that a Texas death-row inmate has fetal alcohol syndrome, saying jurors did not have a complete picture of his character.
Carlos Trevino was convicted in 1997 of murdering 15-year-old Linda Salinas. Police found Salinas’ body in a park in San Antonio, Texas, on June 10, 1996, a day after she had gotten into a car with Trevino, his cousin Juan Gonzales and three other friends.
Instead of driving the girl to a fast-food restaurant as they had promised, they took her to the park and three of them raped her, according to the case record.
Gonzales testified for the prosecution that Trevino did not rape Salinas but he held her down while someone else did.
Gonzales also testified that Trevino urged him to join in the gang rape but he refused, that Trevino talked about the need to eliminate Salinas as a witness, and that he bragged after the murder that he “learned how to kill in prison” and “learned how to use a knife in prison.”
An autopsy showed Salinas died from a stab wound to the neck. Forensic experts found fibers from Trevino’s slacks on her clothes and determined Trevino couldn’t be ruled out as the source of DNA found in her panties.
During the punishment phase of Trevino’s capital murder trial, his attorney only called one witness, Trevino’s aunt, Juanita Trevino DeLeon. She testified that Trevino had a rough childhood—his family was on welfare, he dropped out of high school and his mother was an alcoholic, according to a rehash of the case by the Fifth Circuit.
The trial attorney first met DeLeon in the Bexar County Courthouse basement during a lunch break in the proceedings, before she testified that afternoon, according to Trevino’s second amended federal habeas complaint.
The trial court sentenced Trevino to death after he rejected a plea offer that would have spared his life. The court appointed Trevino a different attorney to handle his direct state appeal, and a third attorney to seek state collateral relief.
Neither of Trevino’s state appellate attorneys raised the argument that he was denied his Sixth Amendment right to effective counsel based on his trial attorney not investigating potentially mitigating evidence that he suffers from fetal alcohol syndrome.
After the trial court and the Texas Court of Criminal Appeals denied relief, Trevino filed a federal habeas petition and was appointed another attorney, who claimed for the first time that his trial attorney was ineffective for not rounding up and presenting mitigating evidence.
The attorney told U.S. District Judge Xavier Rodriguez in San Antonio that his own investigation revealed Trevino’s mother had abused alcohol while pregnant with him, that Trevino weighed four pounds at birth, and that he had suffered from fetal alcohol syndrome symptoms throughout his life.
Rodriguez stayed the federal case to let Trevino raise the claim in the state trial court, which ruled that because he had not made the argument in his initial post-conviction proceedings, he was barred from making it.
Rodriguez denied his federal habeas petition on the same procedural grounds. So did the Fifth Circuit.
The U.S. Supreme Court breathed life into Trevino’s case with its 2012 ruling in Martinez v. Ryan, in which it held a federal habeas petitioner is not barred from making an ineffective counsel claim if the state’s habeas rules require them to make the argument during their first state habeas proceeding and their attorney was ineffective.
However, Judge Rodriguez denied the petition in June 2015, finding that even the new Supreme Court precedent did not excuse Trevino’s procedural default — and even if he did clear that hurdle, the new mitigating evidence did not overcome Trevino’s lack of remorse for the crime, the deciding factor for Rodriguez.
The Fifth Circuit then ruled that the fetal alcohol syndrome evidence “goes to the heart” of the aggravating evidence Rodriguez based his denial on.
Because Rodriguez himself admitted that Trevino’s lack of remorse could have been a product of his fetal alcohol effects, he should have given more weight to that evidence, the New Orleans-based appeals court found. The panel granted Trevino permission to appeal the district court’s dismissal of his second amended habeas petition.
On Monday, the Supreme Court rejected Trevino’s petition for writ of certiorari.
Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented from the decision.
“Absent intervention from this Court…Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered,” Sotomayor wrote. “That result is indefensible, especially where our failure to intervene sanctions the taking of a life by the state.”
She added that “the true impact of new evidence, both aggravating and mitigating, can only be understood by asking how the jury would have considered that evidence in light of what it already knew.”
“The new mitigating evidence relating to [fetal alcohol spectrum disorder] is completely different in kind from any other evidence that the jury heard about Trevino,” Sotomayor said. “Had the jury learned of the FASD and related testimony, it would have had a much fuller perspective of his character and background.”