Tuesday, October 30, 2012
A split three-judge panel of the Ninth Circuit ruled in Stankewitz v. Wong that a death row inmate's attorney failed to provide effective assistance of counsel at the penalty phase of his trial, in violation of his Sixth Amendment right to counsel, because his attorney failed to present certain mitigating evidence. The court ordered the state of California to either vacate and set aside the inmate's death sentence, unless the state initiates proceedings to retry his sentence within 90 days, or to resentence him to life without parole.
The case comes just three years after the Supreme Court reversed the Ninth Circuit in Wong v. Belmontes (2009), another IAC-at-sentencing case. That case held that Belmontes could not show that his attorney's performance at the penalty phase failed the prejudice prong of Strickland v. Washington because additional mitigating evidence would have been merely cumulative and because additional mitigating evidence would have opened the door to aggravating evidence that Belmontes was responsible for a second murder. The case says that a court in assessing an ineffective assistance of counsel claim at the penalty phase needs to examine both the pros and cons of introducing additional mitigating evidence, and that sometimes this evidence can be a two-edged sword.
The split on the panel, just three years after Belmontes, suggests that there's still some disagreement on the Ninth Circuit on how to assess an IAC claim at sentencing. Or, as Judge O'Scannlain wrote in dissent, "The Supreme Court took notice and repudiated [the majority's] reasoning in Wong v. Belmontes. Yet our circuit is already showing signs of backsliding." The case may give the Supreme Court yet another chance to clarify the standard.
Stankewitz is the longest-serving inmate on California's death row. He was convicted of killing a woman in a 1978 carjacking and sentenced to death. He argued on habeas that his attorney was ineffective at the penalty phase for failing to present mitigating evidence. The district court agreed, and the Ninth Circuit affirmed.
The majority (Judges Fisher and Bybee) wrote that Stankewitz showed prejudice for failure to introduce mitigating evidence at sentencing, because the available evidence was indeed mitigating, and any harm that might have come from it (i.e., the second edge to its sword) was merely cumulative of other aggravating evidence that the prosecution already introduced. According to the majority, the case thus looked more like Wiggins v. Smith and Williams v. Taylor (2000)--both finding IAC at sentencing based on counsel's failure to investigate and prepare--than Belmontes.
Judge O'Scannlain wrote in dissent that the majority may have distinguished Belmontes, but that the distinctions didn't show prejudice. Judge O'Scannlain argued that the court should have remanded to the district court to apply the Belmontes standard.