- The Washington Times - Thursday, June 26, 2003

The Supreme Court yesterday ruled 7-2 that a Maryland public defender so mishandled a murder-case sentencing that he put his client’s life on the line by failing to adequately investigate his history as a victim of childhood abuse.

A deeper probe of Kevin Wiggins’ “social history … might well have influenced the jury’s appraisal of Wiggins’ moral culpability” and prevented a death sentence, the court said in an opinion written by Justice Sandra Day O’Connor that found the convicted killer did not have effective assistance of counsel at sentencing.

The decision vacating Wiggins’ death sentence was joined by Chief Justice William H. Rehnquist and Justices O’Connor, John Paul Stevens, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The dissenters, Justices Antonin Scalia and Clarence Thomas, rebuked the court for not believing defense lawyer Carl Schlaich’s testimony that he did investigate and decided to pursue the claim of innocence rather than seek mercy.

The 4th U.S. Circuit Court of Appeals had agreed, reinstating the death sentence on grounds the defense lawyers’ decision not to further investigate was “virtually unchallengeable” so long as they knew Wiggins’ rudimentary background.

Maryland Solicitor General Gary E. Bair said yesterday it will be up to Baltimore prosecutors whether to seek resentencing or a plea bargain. Mr. Bair said he had argued the defense lawyers accurately testified they knew about Wiggins’ background regarding sex abuse and other factors in the case “but the court majority said Carl Schlaich didn’t know that and must have been mistaken.”

On appeal, Wiggins got powerful legal help. His case was argued pro bono by Washington lawyer Donald B. Verrilli Jr.

Yesterday, American Bar Association President A.P. Carlton said the case is symptomatic of inadequate counsel provided to poor clients who face the death penalty.

“Like so many other indigent defendants on death row, Mr. Wiggins’ appointed lawyers failed to investigate and present critical information about Mr. Wiggins’ background and character to the jury before it made its sentencing determination,” said the leader of the nation’s largest organization of lawyers.

Outside the hearing of the jury, Mr. Schlaich did present the judge psychological reports and expert testimony that he wanted to use at a separate mitigation hearing but the trial court refused to allow “bifurcated” guilt and punishment sentencing hearings.

“At no point did Schlaich proffer any evidence of petitioner’s life history or family background,” the Supreme Court majority said, and the jury unanimously voted to execute Wiggins for the Sept. 17, 1988, drowning death of Florence Lacs, 77, during a robbery at Woodlawn, Md.

Mr. Schlaich said that he and co-counsel Michelle Nethercott decided pretrial to focus their efforts on arguing his innocence because their client was linked to the case solely by circumstantial evidence. Wiggins, a painter in Mrs. Lacs’ building, was driving her car a few days after the murder and used her credit card to buy jewelry for a girlfriend.

When that strategy failed in an unusual bench trial before a judge who convicted Wiggins, Mr. Schlaich decided to pursue the same tack with the jury.

The Supreme Court decided the lawyer did not have enough information about Wiggins’ childhood beating and rape after his parents abandoned him and he was placed in foster care.

“Wiggins’ sentencing jury heard only one significant mitigating factor, that Wiggins had no prior convictions. Had the jury been able to place petitioner’s excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance,” the court said. One juror would have deadlocked the case since death sentences must be unanimous.

In a second major criminal decision handed down on its last court day before summer recess, the court threw out a California law that permitted prosecutions on charges of sex abuse that occurred up to 43 years before.

The 5-4 decision that a state may not retroactively negate an expired statute of limitations involved a daughter’s accusations against her father, but it is expected to undermine efforts to prosecute priests arrested recently on molestation charges for incidents that occurred many years before.

In an opinion written by Justice Breyer, joined by Justices Stevens, O’Connor, Souter and Ginsburg, the court ruled that the 1993 law could not be used to prosecute Marion Stogner, 72, a retired paper-plant worker and Korean War veteran.

Mr. Stogner was charged in 2001 but not yet tried on charges of molestation that purportedly occurred between 1955 and 1972. The accusations were reported in 1998 to police, who at the time were investigating molestation claims against his sons. Mr. Stogner’s daughters said he began molesting them when they were under age five and the abuse went on for years. One said she became pregnant at age 16.

“I just feel like I’ve been molested all over again,” said daughter Margaret Vaughan, now 42, who lives in Mississippi.

Justice Kennedy’s dissent, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, said California should be allowed to punish “serious sexual offenses committed against minors” and accused the majority of overinterpreting court precedents.

Also, the high court refused to decide whether Nike’s claim that its ads and statements defending its overseas labor practices are constitutionally protected free speech, instead of false advertising, as argued by a California activist. The court dismissed the case without ruling on the merits of Nike’s claim.

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