Justices consider case of inmate


WASHINGTON - The U.S. Supreme Court considered yesterday whether attorneys for Maryland death row inmate Kevin Wiggins failed him at his original sentencing hearing by arguing to jurors that he was innocent instead of presenting evidence of childhood neglect and abuse that might have helped spare him a death sentence.

The appeal by Wiggins, who was convicted in the 1988 slaying of an elderly Baltimore County woman, provides the latest opportunity for the high court to clarify standards for legal representation in death penalty trials. The question in his case: When does a tactical defense decision amount to bad lawyering?

Wiggins' current lawyer, Donald B. Verrilli Jr. of Washington, argued before the court yesterday that the former handyman's original lawyers weren't able to make an informed decision about the best defense strategy because they never conducted a thorough background investigation.

Several of the justices appeared sympathetic to that point, closely questioning whether the social service and psychiatric reports that existed at the time gave a full picture of Wiggins' deeply troubled childhood, marked by severe beatings and repeated sexual abuse.

"I can't find a word about the sexual abuse," Justice Stephen G. Breyer said. "It was horrible in this case, and there's absolutely no reference that I can find that shows this lawyer knew about that."

Justice Sandra Day O'Connor questioned whether the court could endorse the defense strategy to revisit only the issue of Wiggins' guilt at trial without introducing any personal background evidence that could mitigate against the death penalty.

O'Connor noted that at the beginning of the 1989 sentencing hearing, the Baltimore County jury that sent Wiggins to death row was told that they would learn about his "difficult life," but the issue never was revisited during the hearing.

"What is the jury to make of that?" O'Connor said. "It's so odd."

Wiggins, then 27, was found guilty in August 1989 by Baltimore County Circuit Court Judge J. William Hinkel of drowning 77-year-old Florence Lacs in the bathtub of her Woodlawn apartment. Wiggins, who was working as a painter in Lacs' apartment complex at the time, has maintained that he did not kill Lacs.

He has acknowledged that he and his girlfriend used Lacs' car and credit cards within hours of her death.

Two months after he was convicted in a bench trial, Wiggins was sentenced by a Baltimore County jury. Court records show that public defenders Carl Schlaich and Michele Nethercott decided to argue at sentencing that Wiggins was innocent - if even one juror believed that Wiggins was not a principal actor in the crime, he could have been spared the death penalty.

Maryland Solicitor General Gary E. Bair, who argued the state's position before the Supreme Court, said the jury's decision should stand. The public defenders did research Wiggins' background, Bair argued, and made a tactical decision not to use that evidence at the hearing.

Ruling last year in a Tennessee case that mirrored some of the issues raised by Wiggins, the court said in an 8-1 decision last March that a defense attorney's failures have to be so severe that they amount, effectively, to no representation at all.

During yesterday's hearing, Justice Ruth Bader Ginsburg noted that the original defense strategy did protect Wiggins from cross-examination that could have hurt his case.

"The jury might have found that a person who had been so abused would be full of hate, and then very likely would have had the mental state to carry out this kind of brutal murder," Ginsburg said.

But Verrilli countered that without a complete social history, the original public defenders for Wiggins never knew what a powerful mitigating case they could have presented.

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

U.S. District Judge J. Frederick Motz of Baltimore voided Wiggins' murder conviction and sentence in September 2001.

But a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., reversed Motz, ruling that Wiggins' conviction was properly upheld by state courts and that his attorneys had not failed him at sentencing.

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