- The Washington Times - Tuesday, November 19, 2002

The Supreme Court agreed yesterday to decide whether a convicted Maryland murderer's right to counsel was violated when his lawyer told the sentencing jury he was innocent instead of saying childhood abuse contributed to the crime.
Kevin Wiggins' appellate attorney, Donald B. Verilli Jr. of the District, asked the high court also to decide whether the evidence was sufficient to convict Wiggins of drowning Florence Lacs in her bathtub during a robbery, but the justices refused.
The Wiggins case is the fifth in a string of death-penalty issues the court is hearing this term in the face of a nationwide debate on capital punishment that led two governors George Ryan, Illinois Republican, in 2000 and Parris N. Glendening, Maryland Democrat, in May 2002 to block all executions in their states.
The focus of Mr. Glendening's stated concerns was possible racial bias against blacks accused of killing whites. It came less than a week after the federal appeals court reinstated Wiggins' conviction, overturning the decision of a federal district judge who asked whether the state had no "moral concern" about the issues.
Wiggins, now 41, is black and Mrs. Lacs, 77, was white.
The high court said yesterday that it would decide whether a defense attorney in a capital case has a duty to investigate evidence "that could well have convinced a jury to impose a life sentence." The legal question is the standard of review a federal court must use to intervene on whether a capital defendant has effective counsel.
In reinstating the conviction, the U.S. 4th Circuit Court of Appeals said lawyer Carl R. Schlaich of Bel Air "made a reasonable strategic decision."
A 1997 federal law intended to speed executions allows federal courts to intervene only when state courts make an "unreasonable application" of a clear federal rule.
Mrs. Lacs was found Sept. 17, 1988, drowned in her bathtub while clothed in the skirt, blouse and beads she wore when seen two days earlier speaking with Wiggins, who was working as a painter at her apartment house.
In the intervening two days, Wiggins and his girlfriend used Mrs. Lacs' auto and credit card for a shopping spree.
Medical evidence conflicted on the date of death, with the prosecution saying Sept. 15 and a defense expert saying Sept. 17. Wiggins centered his defense on that conflict and his assertion of having found the wallet in her car at a restaurant parking lot.
Wiggins was convicted of the first-degree murder of Mrs. Lacs after a four-day trial before a judge. He elected a sentencing jury to consider his assertion that he was not the actual killer under Maryland's requirement that only the "triggerman" or "principal" is subject to execution.
"Counsel [Mr. Schlaich] would present a picture to the jury of an innocent man, notwithstanding his murder conviction, and then, to the same factfinder, argue that if he was the principal, then the jury should be lenient because of his difficult childhood," the 4th Circuit ruled.
"Here the jury could just as easily have viewed Wiggins' childhood and limited mental capacity as an indicator of future lawlessness," that court said, adding that if Mr. Schlaich chose that option and failed he could have been accused of bad lawyering. Mr. Schlaich is a member of the board of directors for the Maryland Criminal Defense Attorneys Association.
Reversing U.S. District Judge J. Frederick Motz, who accused Wiggins' lawyers of lacking "moral concern," the 4th Circuit ruled that Mr. Schlaich knew the circumstances of his client's youth including punitive burning by his mother, homosexual rape and his being borderline mentally retarded and that he had never been convicted of a crime.
His appellate lawyers say Mr. Schlaich did not adequately investigate Wiggins' background, but the federal appeals court said that "any inference that his knowledge and investigation was merely casual or offhand is simply not so."


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