Supreme Court to begin review of Balto. Co. death sentence

Panel to decide whether attorneys failed Wiggins

March 23, 2003|By Gail Gibson | Gail Gibson,SUN STAFF

The Baltimore County jury that sent Kevin Wiggins to Maryland's death row was told at the start of his 1989 sentencing hearing that they would learn about his "difficult life," and court records suggest his public defenders could have introduced ample evidence of a troubled childhood that might have argued for mercy.

Raised poor in East Baltimore, Wiggins was shuttled from an abusive, alcoholic mother to a series of foster homes where he was repeatedly beaten and raped, according to a social worker's report prepared during Wiggins' appeals.

On one occasion, his mother punished him for playing with matches by holding his hands against a hot stove. At times, he ate paint chips to fight hunger.

Instead of offering those details as mitigating evidence, however, Wiggins' original attorneys tried to save his life by arguing that he was innocent in the murder of 77-year-old Florence Lacs. Now the U.S. Supreme Court will decide if the lawyers failed Wiggins by taking that approach, again weighing in on the question of when a tactical defense decision amounts to ineffective representation.

The court is scheduled to hear arguments tomorrow in Wiggins' case. He is asking the court to overturn his death sentence, and recent precedents suggest he faces tough odds -- twice last year the court declined to void the death sentences of men who said their lawyers had failed to adequately represent them.

Ruling in a Tennessee case that contained some of the issues raised by Wiggins, the court said in an 8-1 decision in March of last year that a defense attorney's failures have to be so severe that they amount to no representation at all. In a separate case, the court let stand without comment an appeals court ruling that a Texas inmate be granted a new trial because his lawyer repeatedly fell asleep during the original trial.

Clarify standards

Legal experts say Wiggins' case could help clarify standards for defense attorneys in capital cases across the country.

"I think you can be well intended, and not sleeping at the table, and still be ineffective," said Richard C. Dieter, executive director of the Washington-based Death Penalty Information Center. "You can still fall below the professional standards for trying to save your client's life."

Wiggins, then 27 and a part-time handyman, was found guilty in August 1989 by Baltimore County Circuit Judge J. William Hinkel of drowning Lacs in her Woodlawn apartment. The last day that Lacs was seen alive -- Sept. 15, 1989 -- Wiggins was working as a painter in her apartment complex. Within hours of his leaving work, Wiggins and his girlfriend were found to have used Lacs' car and her credit cards.

Two months after he was convicted in the bench trial, Wiggins was sentenced by a county jury. Wiggins' current lawyers argue that his original public defenders failed during that proceeding to fully investigate Wiggins' troubled past and other mitigating evidence that could have helped his case.

In later court proceedings, public defenders Carl Schlaich and Michele Nethercott said they thought the other was responsible for developing any mitigating evidence for the sentencing hearing. According to court records, Schlaich also acknowledged that they had not retained a forensic social worker to conduct a thorough personal history, even though funds were available to do so.

The Wiggins case was the second death penalty trial that Schlaich had handled, the first for Nethercott.

Nethercott, who has said she was "haunted" by the Wiggins case, still works for the county public defender's office and last year helped free Bernard Webster, the Baltimore man exonerated of a 1982 rape by DNA evidence.

`Reasonable' decision

Maryland Solicitor General Gary E. Bair, who will argue the state's position before the Supreme Court, said the jury's death sentence should stand because the two public defenders researched Wiggins' background and chose to argue that Wiggins was innocent to try to avoid a death sentence, instead of relying on mitigating details about his personal life.

"Wiggins' portrait of inexperienced, incompetent trial attorneys who went down a doomed path due to lack of investigation and an inept choice of sentencing tactics is inaccurate," Bair said in a brief filed with the Supreme Court. "Trial counsel made a reasonable, tactical decision not to use evidence regarding Wiggins' background at sentencing, choosing instead to pursue a defense consistent with Wiggins' steadfast claims of innocence."

Washington attorney Donald B. Verrilli Jr., who now represents Wiggins, countered that leading case law on the question of effective legal representation "precludes deference to `tactical' choices when, as here, they are not supported by adequate prior investigation."

"The plain fact is that Wiggins' counsel did not know about the compelling mitigation evidence available," Verrilli said.

The court agreed last year to hear Wiggins' case after a pair of conflicting rulings by lower federal courts.

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