Saturday, June 23, 2007

The Right Call...

A federal judge threw out the death sentence of Richard Thomas Stitt a little over two years ago. Judge Raymond A. Jackson ruled that defense counsel had a financial conflict of interest during trial and had "performed deficiently."

You see, every defendant is constitutionally entitled to receive effective counsel; and last week, Judge Jackson refused to revisit his April 2005 decision and sentenced Stitt to life in prison plus 65 years. There is no parole in the federal system.

During trial, pricey Miami criminal attorney Norman Malinski wanted to keep his legal fees a secret. Stitt's family claims they paid Malinski more than $100,000. Malinski says he was paid between $75,000 and $100,000. However, the government asserts that defense received $500,000 from drug money.

The obvious conflict arose when Malinski put his legal fees ahead of a client's life. Defense failed to hire expert witnesses during the penalty phase of the trial that would have offered mitigating evidence and quite possibly spared Stitt's life. To offer an effective defense, counsel would have had to take a smaller slice of the pie or ask the Court to provide monies for experts. This, in turn, would have invited questions about Malinski's illicit fees from a drug enterprise.

Instead of expert witnesses, defense counsel hired someone "whose only previous experience with federal prisons came from watching a television show." And contrary to the prosecution wishes, Judge Jackson deemed the remedy for this irreparable harm and abject dereliction of duty by Malinski was to vacate the death sentence altogether--not a new sentencing trial.

Indeed, it is incongruent when a Court holds defense counsel to be ineffective during the penalty phase but perfectly capable during trial. But even if that were the case, to bring a jury panel that only hears the most damaging summary of the facts and then ask them to determine whether a defendant should live or die is not only perverse but unjust. Future "dangerousness" is a subjective decision that may hinge on trial court demeanor that reflects remorse by the accused.

A three-judge panel of the United States Court of Appeals for the Fourth Circuit unanimously affirmed Jackson's ruling earlier last year. The Courts have held that judges have "broad and flexible remedial power" in district courts "to fashion an appropriate remedy" when a petitioner has successfully challenged the initial trial court's finding.

Fortunately, Stitt's capital murder conviction fell under federal jurisdiction. One can hardly envision Virginia's Supreme Court vacating and resentencing a death-row inmate because of incompetent counsel; the most one usually hopes for is a new penalty phase trial.

Think of William Wilton Morrisette, III or Daryl Renard Atkins; both received a new penalty phase trial; and both were once again sentenced to die.

Or poor Justin Wolfe whose attorney was disbarred for incompetence but never received a second chance to fight for his life.

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