Supreme Court

Sonia Sotomayor Faults SCOTUS for Failing to Protect Right to Effective Counsel in Death Row Case

Justice Sotomayor dissents from the denial of certiorari in Wessinger v. Vannoy.


Pete Souza / White House

Today the U.S. Supreme Court declined to hear the appeal of a death row inmate whose state-appointed attorneys failed to discover and present mitigating evidence that might have altered the outcome of his jury trial. Writing in dissent, Justice Sonia Sotomayor faulted her colleagues for refusing to review this "deeply unjust and unfair" case. The Court's inaction, Sotomayor declared, "belies the 'bedrock principle in our justice system' that a defendant has a right to effective assistance of trial counsel, and undermines the protections this Court has recognized are necessary to protect that right."

The case of Wessinger v. Vannoy originated in 1997 when Todd Wessinger was found guilty of killing two people and sentenced to death. Yet as Justice Sotomayor pointed out, "Wessinger was sentenced to death by a jury that was never presented with significant mitigation evidence that may have convinced its members to spare his life," such as the fact that he "suffers from a major neurocognitive disorder that compromises his decision-making abilities" and "has a hole in the area of his brain associated with executive functioning that resulted from some form of cerebrovascular illness."

Wessinger's state-appointed lawyers failed to discover and present such evidence as their client's case wound its way through the Louisiana courts. As one of those lawyers later admitted under oath, his work was "inadequately investigated, rushly put together based on a civil lawyer's understanding of what to do, a first-year civil lawyer's understanding of what to do."

Represented by new lawyers at the federal level, Wessinger prevailed in 2015 before the U.S. District Court for the Middle District of Louisiana, which found that his counsel "at the penalty phase was deficient and fell below the objectively reasonable norms of capital counsel at a penalty phase." Furthermore, the district court said, "there is a reasonable probability that the evidence of [Wessinger's] brain damage and other impairments, as well as his personal and family history would have swayed at least one juror to choose a life sentence." The district court then vacated Wessinger's death sentence.

But the U.S. Court of Appeals for the 5th Circuit reversed that ruling, leaving Wessinger on death row. It was that 5th Circuit decision that the U.S. Supreme Court declined to review today, prompting Justice Sotomayor to take the rare step of publicly rebuking the other justices for declining to get involved.

"The layers of ineffective assistance of counsel that Wessinger received constitute precisely the type of error that warrants relief under this Court's precedent," Justice Sotomoyor maintained. "Yet, Wessinger will remain on death row without a jury ever considering the significant mitigation evidence that is now apparent. Because that outcome is contrary to precedent and deeply unjust and unfair, I dissent."

Justice Sotomayor's dissent from the denial of certiorari in Wessinger v. Vannoy is available here.

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  1. “has a hole in the area of his brain associated with executive functioning that resulted from some form of cerebrovascular illness.”

    Fil that hole with lead, or at least make another one.

  2. Back when I was a kid, like a hundred years ago, there was a TV show called “Boston Blackie”. Boston Blackie was not black, but he was “a friend of those who have no friends.” I guess Justice Sotomayor has appointed herself the new Boston Blackie. Given the rest of the Court, I think it’s an excellent choice.

    1. Did you ever read the original stories by Jack Boyle? I did recently. Not realistic, but fun.

  3. Executing this guy is the only way to deter other brain damaged people with impaired decision-making abilities from committing murder.

    1. other brain damaged people with impaired decision-making abilities

      They probably don’t murder at anywhere near the rate of the general population.
      When they do it shouldn’t excuse them from being responsible for their actions

      1. SIV once put one of his roosters on trial for shitting all over his laptop, after he left the laptop in the chicken coop. The jury of 12 chickens swiftly convicted him by pecking at the picture of corn next to the “guilty” sign. Justice was swiftly carried out. It’s the only way the other roosters will learn.

        1. SIV doesn’t like spewing cocks. Who knew?

    2. Note that the supposed impairment has not been proven in a court of law, only asserted by the murderer’s attorneys.

      If someone’s decision making abilities are so “impaired” that they randomly kill other people, they clearly can’t be released. If you want to pay for him to get three hots and a cot for the rest of his natural life, go for it. I don’t think the world will miss him otherwise.

      1. The question is more interesting than your response gives credit. Remember Gary Busey? After his brain injury he’s a different dude. There are other popular examples of even more drastic personality differences. Remember the guy with the brain tumor that turned him gay?

        So back to the interesting question: suppose you are a wonderful person. Pretty much not only a model citizen, but loved and respected by all. Then, in your mid-fifties you see a young girl being kidnapped from a public park. You intervene and although you save the girl, you get shot in the head with a .22 pistol. You recover, but you are not the same.

        You have serious anger issues. The world confuses you. Images and sounds come from nowhere and you struggle to make sense of it. You become angry and withdrawn. Eventually, you become so paranoid and violent that you pull a gun at the ATM and shoot the guy in line behind you.

        So… death penalty? Screw you, I don’t think the world will miss you?

        The entire question of “who am I” is in play here. For those who believe in a soul, what impact does this sort of case have in that construct?

        It is a big question, and I don’t think it lends itself to easy answers.

  4. Trial by jury and public defenders are some of the very few positive rights that I agree with.

    1. Despite my reactionary ways I believe indigent criminal defendants deserve representation at least roughly equal to the state’s.

    2. The government is doing something to you, not for you, so a positive right to a defense is reasonable, even necessary. In fact, my solution to many legal issues is the government would be required to provide a voucher for a legal defense, good for any attorney, none of this “If you can’t afford one…” noise on TV.

      Enough to put have a good pretrial representative. I’m thinking $2000 for first-degree misdemeanors, $10k for lesser felonies. Jury trial, and other longer processes could add more. Or course, high-powered private attorneys could charge more, but they would still get the bottom-line amount paid by the voucher.

      1. Wouldn’t that lead to a surge of non-guilty pleas from defendants who know they are guilty but now figure it won’t cost them a dime to have a really good attorney try to get them off or plead them down?

        1. GOOD. Clog the system up and maybe we can stop overcharging for every little offense

        2. I view that as a feature. Rather than an overworked PD, this gives him a less overworked laywer that is in a position to really challenge the evidence. I would think most cases would result in a better plea deal for the defendant.

        3. I view that as a feature. Rather than an overworked PD, this gives him a less overworked laywer that is in a position to really challenge the evidence. I would think most cases would result in a better plea deal for the defendant.

      2. The defense should match the offense. That’s one simple way, but government attorneys usually get paid a lot less than private attorneys, and you have to include all expenses, like office space, police investigations, etc.

        My favored solution is make loser pays everything, full restitution, all costs of all kinds; the trial must include all charges — none can be dropped just for fun; and “lose” means if you bring 10 charges and 7 are acquitted, you lost those 7 — pay up! It also means that if you charge first degree murder and get voluntary manslaughter, that too is a loss of sorts, and you have to pay some of the expenses.

        But quibbling is rampant and will add endless wrangles — fine, those costs also go into loser pays. If the prosecution fights too much and loses, they just pay more. If the defense claims too much and loses, they pay the extra costs.

        The biggest problem would be juries not wanting to acquit on silly charges if they think the guy is guilty of the major one, because they won’t want the prosecution to have to pay any loser costs.

        1. I like your idea of the government paying the lawyers, Mr. Chipper. But, I think forcing the defendant to unconditionally reimburse for his prosecution sounds a bit like making the family pay for the bullet.

          1. It discourages guilty criminals from prolonging the agony.

            But I do understand the idea that government should pay for both, since the rationale for a government monopoly on criminal prosecution is that government can afford a prosecution which victims might not, and therefore government must pay both sides as part of that social safety expenditure.

      3. Incorrect. The NAP would not be violated if the government killed an aggressor without a trial.

        1. How does the government know who the aggressor was? It’s one thing when they shoot during an actual fight, but even then cops arriving late on the scene may shoot the wrong person.

          But most of the time, they accuse and arrest something long after the crime. The trial is the process to determine whether they got the right person, and whether the accuser’s account of the incident is accurate. A cop already has much too much power to unfairly influence the trial by fabricating and concealing evidence. Your proposal lets them out of having to go to trial at all.

    3. Yes, but ‘effective’ is a qualitative term, which is a matter of opinion. We do have a right to legal representation, but what is Sotomayor trying to invent here? If she wants to oppose the death penalty, come on down… do it straight up, and stop coming at us sideways.
      Personally, I oppose the death penalty – not for moral reasons as much as financial. The amount of checks and balances that need to be put in place to prevent courts from being used as hit men are of sufficient weight that it is [in most cases] just cheaper to put somebody behind bars for life. We arrived at our current point of confusion because our system once took life sentences and reduced them to something like 7-10 years, spitting in the eye of judge and jury. People got ticked off at the public endangerment created by the revolving door, and so the death penalty was revived decades ago in piecemeal fashion. Perhaps we would have been better served by making parole boards civilly liable for any crimes committed by parolees, putting the ‘life’ back into a life sentence. Mandatory minimums for non-violent offenders have to go in that light, to relieve the unnecessary administrative burdens.

  5. I think this case is more an argument to just end the death penalty.

    1. I agree, the right to effective counsel is a right that can’t really be Quantified, because what defines effective Counsel? For instance even in countries with single-payer healthcare systems such as the NHS, you’re not given a right to effective treatment, you’re only given a right to treatment. Defining effective Council can only be determined after the fact.

  6. As one of those lawyers later admitted under oath, his work was “inadequately investigated, rushly put together based on a civil lawyer’s understanding of what to do, a first-year civil lawyer’s understanding of what to do.”

    The Constitution guarantees legal representation. It says nothing about the representation being adequate or competent.

    1. sarcastic: “The Constitution guarantees legal representation. It says nothing about the representation being adequate or competent.”

      That’s only true if you are talking about a specific right. However, one suspects it might also fall under the various due process clauses of the 5th and 14th Amendments. But that would be up the Supreme Court to determine.

  7. How about a deal Sonia. One half the court agrees to protect representation if you agree to protect the Right to Keep and Bear Arms which is literally spelled out in the Constitution.

    1. @Patrick Henry, the 2nd: That would be a particularly callous and cold blooded deal: our guns for this guy’s life.

      That would rather like the Democrats in Congress offering to agree to protect the Right to Keep and Bear Arms…as long as Republicans impeached and convicted Donald Trump

      1. Oh, lord. P.T. Barnum rides again…

  8. What, you’re telling me ‘free’ trial defense is garbage? Hmm…now if only retards would extrapolate into turning healthcare into a ‘right’…

  9. So the defense didn’t explore the options of getting him out on a plea of insanity or stupidity. If the people died due to his negligence, this evidence is enough for me to think the sentence should change. Something tells me that it was still first degree murder. If we accept execution is a suitable punishment for murder, then I don’t really see how intentionally killing should save someone from that fate just because that person is stupid or crazy. The limited cognitive faculties only suggest to me that the person is still a danger to society.

  10. I’m not a fan of worrying about why anybody commits a murder – we cannot afford any more Oprahfication of juries in my opinion. But this case seems like simple incompetence by the defense attorney, more than a prosecution witholding exculpatory evidence. It’s a systemic problem, where case loads prevent much more than an hour or two [total man hours] of work before popping tall in front of a judge as proceedings get launched. So for all the voters out there that ever said “there ought to be a law” or screamed “do something” at their representatives, congratulations: you got what you wanted, and we are now drowing in so much law that an effective defense is impossible without extraordinary means [as in being a millionaire]. Enjoy your self inflicted soft tyranny.

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