U.S. appeals court reverses voiding of death sentence

Panel upholds penalty for killer, but one judge remains uncertain of guilt

Ruling says governor can decide

May 03, 2002|By Gail Gibson | Gail Gibson,SUN STAFF

A federal appeals panel reversed yesterday a Baltimore judge's decision to void Kevin Wiggins' murder conviction and death sentence, even as one of the powerful appellate judges said he remained uncertain whether Wiggins committed the crime that sent him to Maryland's death row in 1988.

The three-judge panel of the 4th U.S. Circuit Court of Appeals said in a 20-page opinion that the state's case against Wiggins in the slaying of an elderly Woodlawn woman had been properly upheld by state courts and that Wiggins' attorneys had adequately represented him during his sentencing.

But the judges were not without reservation. Chief U.S. Circuit Judge J. Harvie Wilkinson III noted in a short concurring opinion the narrow boundaries of the court's review and suggested that Maryland's governor should decide whether Wiggins, 40, should die for the crime.

"My own view is that [Wiggins] very probably committed the heinous offense for which he stands convicted," Wilkinson wrote. "But I cannot say with certainty that he did so. However, it is for the governor to determine the extent to which the lack of total certitude should inform the exercise of discretion," under Maryland death penalty law.

"To confuse the rule of law here with the role of clemency would only do a disservice to both," Wilkinson wrote.

A second judge on the panel, Paul V. Niemeyer, noted his own concerns about whether defense attorneys had failed Wiggins by not telling jurors weighing a death sentence about Wiggins' history of child abuse and borderline mental retardation. But he concluded that, "in the end, this may be only a luxury of hindsight."

The ruling comes as death penalty opponents have stepped up calls for a moratorium on the death penalty in Maryland and in recent days have specifically asked Gov. Parris N. Glendening to commute the death sentence of Wesley Baker, who is scheduled to be executed this month.

Advocates for a moratorium say Baker follows a troubling pattern on Maryland's death row, where the inmates are mostly poor and black and convicted of killing white victims. Baker's attorneys, like Wiggins, also have raised questions about his guilt and the quality of his legal representation in their appeals to the governor's office.

The district court ruling in September to void Wiggins' conviction and sentence was a surprise victory for death penalty opponents, who had not been closely tracking his appeals.

In a sharply worded opinion, U.S. District Judge J. Frederick Motz in Baltimore said that there never was enough evidence to convict Wiggins of murdering an elderly Woodlawn woman in her bathtub in 1988 and said Wiggins' trial lawyers did not represent him adequately at sentencing.

Motz, a Republican who was appointed to the federal bench by President Ronald Reagan, said at a subsequent hearing in the case that he is not "an anti-capital punishment person." But he pointedly asked why death penalty supporters aren't "the ones who are most concerned in cases where something goes awry. ... Why aren't they concerned about a case such as this?"

Yesterday's decision by the Richmond, Va.-based appeals court means Wiggins will remain on death row while his attorneys consider an appeal to the full 4th Circuit court or to the U.S. Supreme Court. Even after voiding Wiggins' conviction and sentence last fall, Motz ordered that Wiggins remain in prison during the appeals, saying it would be a "cruel hoax" if Wiggins was temporarily freed, only to be jailed again if the state won its appeal.

Prosecutors said Motz went too far in his decision. In arguments before the Richmond, Va., appeals panel earlier this year, Assistant Attorney General Ann N. Bosse said the original verdict by Baltimore County Judge J. William Hinkel was correct and should be upheld.

After a bench trial in 1989, Hinkel convicted Wiggins of drowning Florence Lacs, a 77-year-old widow who lived alone in a one-bedroom garden apartment on Woodlawn Drive. A jury then sentenced Wiggins to death. The conviction and death sentence were twice upheld by Maryland's highest court on a 5-2 vote.

Wiggins had worked as a painter in Lacs' apartment complex on the last day she was seen alive. That night, Wiggins and his girlfriend, Geraldine Armstrong, used Lacs' car and credit cards, according to court records.

Armstrong never was charged in the case, and she testified against Wiggins at his trial. But the government's case against Wiggins was largely circumstantial. Wiggins' fingerprints were not found in Lacs' apartment, although five unidentified prints were recovered.

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