Capital punishment and people with intellectual disabilities

4 min read

Impartial, consistent sentencing is still not a reality for too many defendants in the US justice system. Data from the National Registry of Exonerations show that wrongful convictions in death penalty cases are most often the result of misconduct by officials, including false accusations and perjury. African Americans are the most likely to be wrongly convicted; to date, they represent the majority of defendants to be exonerated. Just a handful of counties in the US are responsible for most death sentences. Our lawyers are currently involved in several cases that highlight the problems with wrongful conviction and the use of the death penalty.

"It's not about excusing terrible crimes," says Louis O'Neill, Counsel and Director of Pro Bono. "It's about trying to ensure that the innocent and intellectually disabled people are not executed, and to prevent and correct mistakes, of which there are too many."

In one example, we have represented the Federal Republic of Germany since 2012 in its bid to save a dual German-US citizen from execution in South Carolina—a quest that came to a successful milestone in late 2017.

Charged with murder in 2003, the petitioner has Partial Fetal Alcohol Syndrome (PFAS): a form of organic brain damage that has so seriously affected his cognitive abilities that he has the emotional, social, and coping skills of a nine-year-old child. This condition was not properly investigated by the petitioner's trial counsel, and never presented to the jury during the trial or sentencing. The jury sentenced the petitioner to death.

Under the leadership of Owen Pell and Louis O'Neill, our lawyers from New York and Boston, with research assistance from lawyers in Frankfurt, filed numerous amicus briefs on behalf of the Federal Republic of Germany arguing that the death sentence should be vacated because the deficits caused by the petitioner's PFAS, made him fundamentally less culpable than fully functional adults.

On March 9, 2018, the District Court for the District of South Carolina agreed with our argument, granting the habeas petition and vacating the death sentence on the sole issue addressed by the White & Case team in our amicus brief—that trial counsel's failure to investigate PFAS was such a severe oversight, that it rose to the level of ineffective assistance of counsel. Such a win on habeas review is rare for death row petitioners in South Carolina and even more infrequent on Sixth Amendment claims of ineffective assistance of counsel. The State appealed to the Fourth Circuit Court of Appeals.

On appeal, again as amicus counsel for Germany, we argued that (i) trial counsel's failure to conduct a reasonable investigation of PFAS rendered their performance constitutionally ineffective and (ii) that error was prejudicial, because PFAS was a unique and powerful mitigating factor that could have swayed the jury to choose a life sentence. We also asked and received the Court's leave to participate in oral argument—rare for amicus parties.  New York associate Alice Tsier conducted the oral argument for Germany, with the judges focusing on the two issues raised in our amicus brief.

Update: On January 28, 2019, the Fourth Circuit issued a unanimous decision upholding the District Court's decision to vacate the petitioner's death sentence. The Court made law in two important ways: first, expressly holding that an ineffective investigation can yield a finding of ineffective assistance of counsel, even where trial counsel is otherwise fully qualified and capable; and second, in recognizing that the failure to present PFAS evidence to the jury was prejudicial because the presence of organic brain damage would have allowed the jury to find that PFAS severed the causal chain at the heart of moral culpability, rendering the petitioner inherently less culpable. The Court's decision echoed the language in our amicus brief. Finally, acknowledging Germany's contributions to this matter, the Court took the very rare step of adding Germany – a non-party friend of the court – to the case caption.

Stay of execution for DNA testing

We were able to achieve a stay of execution in a death penalty case just days before the execution date, arguing that the DNA evidence had not been properly assessed and that no trace or forensic evidence connected our client to the murder. Despite being in possession of the murder weapon, as well as the victim’s blood-stained clothes, the state had not conducted DNA testing on these items.

After we were recruited by the ABA Death Penalty Representation Project, a team of lawyers from around the world reviewed 16 years of records and mounted a last-minute defense for our client. We successfully persuaded the court to order DNA testing of the items in the state's possession, and we are currently waiting for the analysis to be completed.