Kevin McGrew’s recent posting (A deadly Catch-22: It is possible to execute a person with ID/MR in the United States--Time for SCOTUS to revisit Atkins?) about the Kafkaesque result in the case of Bruce Carneil Webster questioned whether the U.S. Supreme Court might be the next step for Webster. Although a petition for a writ of certiorari in the Supreme Court is likely, Webster’s next step may be a motion for rehearing in the appeals court, or an effort at clemency for the death sentence. Unfortunately, Webster is not the only example of a statute getting in the way of a death row inmate’s effort to prove she is mentally retarded.
Brandy Holmes (click here for 2008 Holmes v LA decision)
Brandy Holmes is a death row inmate in Louisiana. She may or may not be mentally retarded (ID), but she argued to the Louisiana Supreme Court that she was mentally retarded and that her death sentence violated Atkins and the Eighth Amendment. In dissent, the chief justice of the Louisiana Supreme Court stated, “there is a reasonable likelihood that she is mentally retarded”. But a jury never got a chance to pass on the issue of whether Holmes is mentally retarded, and the Louisiana Supreme Court refused to consider the issue, because
“the [defense attorney] neither requested that the jury definitively decide the issue as authorized by La. Code Crim. Proc. art. 905.5.1(B) nor sought a jury instruction charging jurors that it could not return a death verdict if it determined defendant was mentally retarded. Ultimately, because the defendant did not file the required notice and argue the issue of mental retardation to the jury as required by La. Code Crim. Proc. art. 905.5.1, the issue was not preserved for appellate review.” 
Despite having well-known Harvard Law School professor, Charles Ogletree, advocating on her behalf, the U.S. Supreme Court declined to review Holmes’ case.  So like Webster, Brandy Holmes’ may be mentally retarded, yet still subject to the death penalty.
Holmes’ case is in a different posture than Webster’s; she still has the opportunity to raise her mental retardation claim in a “collateral” proceeding. Yet, the Louisiana Supreme Court appeared to go out its way to pre-judge the issue in its direct appeal decision. This is troublesome. The court’s comments (discussed below) could potentially handicap Holmes’ later effort to show that she is mentally retarded and not subject to the death penalty.
Convicted criminal defendants have two ways to “appeal” their convictions and sentences. One, they have a right to a direct appeal, such as what was involved in Holmes (2008). If unsuccessful on direct appeal, the defendant can “collaterally” attack the conviction in what are commonly referred to as post-conviction proceedings. Typically, these claims are brought in the state trial court, and after further state court appeals are exhausted, the claims are renewed in a federal habeas corpus proceeding, albeit under rules which are fairly restrictive – as shown by the result in Webster.
Probably the most common type of post-conviction claim is the assertion that trial counsel provided ineffective assistance of counsel. Ineffective assistance claims are rooted in the Sixth Amendment’s right to counsel. “To prevail on an ineffective assistance claim, a defendant must establish both deficient performance by counsel and resulting prejudice.”  But proving deficient performance under existing Supreme Court standards is not easy. Courts give fairly wide discretion to trial counsel and they can be loathe the second guess attorneys through arm chair quarterbacking. “In short, courts generally presume that defense counsel’s performance was sound, and they will often refuse to second-guess counsel’s decisions on the theory that ‘under the circumstances, the challenged action ‘might be considered sound trial strategy.’” 
Which brings us back to Brandy Holmes. After the Louisiana Supreme Court noted that direct appeal of the mental retardation claim was waived because trial counsel failed to properly present the claim in accordance with Louisiana law, the court stated,
“At this point in these trial proceedings, it is not within our province to second-guess the wisdom of this course of action or delve into the trial strategy that well-seasoned and experienced capital defense counsel chose to employ. See State v. Myles, 389 So. 2d 12, 39 (La. 1980) (recognizing that this Court ‘does not sit to second-guess strategic and tactical choices made by trial counsel.’) Notwithstanding, we observe the defendant presented evidence from three experts at the penalty phase alleging she suffered from fetal alcohol syndrome and argued that as a mitigating factor during sentencing.” 
The court’s quoted language is troublesome. First, the mental retardation claim was not presented in accordance with the requirements of a particular Louisiana statute, period. Whether this was due to strategy or neglect was irrelevant. Thus, the court’s quoted language seems gratuitous. Second, and most problematic, is the concern that the court was sending a message to the judge who might hear the post-conviction proceedings in the future. With this decision, the Louisiana Supreme Court has already advised that Holmes’ attorney was a “well-seasoned and experienced capital defense counsel”. And the court has already implied that trial counsel made an informed, strategic decision to use fetal alcohol syndrome as a basis for mitigation, and it is not the courts’ job to “second guess strategic and tactical” decisions such as this. It is sometimes hard to divine what justices are thinking when they publish their decisions. But this case has a certain smell to it that just does not seem right.
1 State v. Holmes, __ So. 3d __, Case No. 06-KA-2988, Slip op. at 25, n. 15.
2 Death row female denied high court review, Newsique, Oct. 5, 2009, http://www.newsique.com/us/death_row_female_denied_high_cou/ (accessed May 1, 2010). The citation for the denial of the petition is, Holmes v. La., 2009 U.S. LEXIS 6508 (U.S., Oct. 5, 2009).
3 Kyle Graham, Tactical Ineffective Assistance in Capital Trials, 57 Am. U. L. Rev. 1645, 1653 (2008).
4 Carissa Byrne Hessick, Ineffective Assistance at Sentencing, ___ Boston Coll. L. Rev. _ (2009)(adv. copy at pg. 10), quoting from, Strickland v. Washington, 466 U.S. 668 , 689 (1984).
5 Holmes, supra note 1, slip op. at 25-26, n.15.
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