Looking Back: United States Supreme Court Justice Sonia Sotomayor Part 2

Jeffrey Deskovic Speaking in Davis in 2019 at the Annual Vanguard Event

By Jeffrey Deskovic

“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.

Wood v. Allan

Holly Wood was convicted in Alabama in 1993 of breaking into the home of his ex-girlfriend and shooting her in the head and face as she lay in her bed. He was charged with capital murder during a first-degree burglary. The principle issue upon appeal involved whether or not the defendant received ineffective assistance of counsel during the penalty phase based upon the fact his attorney did not present evidence before the sentencing jury that he had scored below 70 on a preliminary IQ test and failed to investigate and present evidence of his mental deficiencies, or whether the attorney’s action could be considered strategy. The sentencing jury recommended death by a 10-2 vote. The U.S. Supreme Court, in Atkins v. Virginia, held that executing retarded persons was banned under the Constitution.

Wood was appointed two experienced lawyers, who placed a third attorney whose name was Trotter, in charge of the penalty phase. Trotter had only been practicing law for five months. Trotter testified that he had come across Wood’s intellectual functioning in the mental health expert’s report but did not recall considering whether to pursue that issue. Trotter further testified that he had unsuccessfully attempted to subpoena Wood’s school records and that he did not recall speaking to any of Wood’s teachers.

He had also written to an attorney at the Southern Poverty Law Center explaining that he was “stressed out over this case and [didn’t] have anyone with whom to discuss the case, including the other two attorneys.’” Although Trotter did not present the evidence in front of the sentencing jury, he did place it in front of the sentencing judge.

When Wood filed a Writ of Habeas Corpus, the federal court ruled in his favor: “Nothing in the record even remotely supports a finding that counsel made a strategic decision not to let the jury at the penalty stage know about Wood’s mental condition.” That decision was reversed by the 11th Circuit, despite the dissent arguing “the weight of the evidence in the record demonstrates that Trotter, an inexperienced and overwhelmed attorney, unassisted by senior counsel, realized too late—only in time to present it to the sentencing judge, not to the penalty jury—what any reasonably prepared attorney would have known: that evidence of Wood’s mental impairments could have served as mitigating evidence and deserved investigation so that it could properly be presented before sentencing.” The dissent also noted that the information would likely have altered the outcome: “Because the jury could have concluded that Wood was less culpable as a result of his diminished abilities.”

Sotomayor’s opinion, which was joined by six other “justices,” was, “The state court’s conclusion that Wood’s counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts.” Turning to the evidence that Wood’s attorney points out of the non-strategic nature of the decision, she writes that “speaks not to whether counsel made a strategic decision, but rather to whether counsel’s judgment was reasonable—a question we do not reach. As for any evidence that may plausibly be read as inconsistent with the finding that counsel made a strategic decision, we conclude that it does not suffice to demonstrate that the finding was unreasonable.”

Justices Stevens’ and Kennedy’s dissent stated, “On the contrary, the only reasonable factual conclusion I can draw from this record is that counsel’s decision to do so was the result of inattention and neglect.” The dissent also noted that “Wood’s former special education teacher testified during post conviction review that Wood was classified as ‘educable mentally retarded’ by the local school system. In short, Wood has the type of significant mental deficits that we recognize as ‘inherently mitigating,’ and that he was reading at a 3rd grade level.”


This ruling is outrageous. I believe that it is abundantly clear to any objective observer that there is no way, despite Sotomayor and six of her colleagues’ contrary view, that the attorney’s omission can be considered “strategy.” There was no benefit to be gained by not presenting the evidence. I agree with Justices Kennedy and Stevens. Given the closeness of the death recommendation vote—10 -2, it is likely that the information would have changed at least one juror’s mind. The evidence’s significance was no minor thing: as Chris Cassidy wrote on www.Criminaljustice.change.org, “In other words, Wood likely was developmentally disabled.”

Other angles which indicate it was not strategy: Trotter’s presenting the evidence in front of the judge was a tacit admission that it was important. Furthermore, he could not recall making a decision not to pursue it. Therefore, there was no thought process, weighing, or line of reasoning that he went down. The absence of those things ipso-facto indicate that the decision was not strategic.

The Court saying that Wood’s evidence speaks to whether the decision is reasonable rather than strategic, and that they do not reach this question, is just another example of Sotomayor’s prior record of liking to resolve issues on procedural rather than substantive grounds, which from where I stand simply is not justice.

It seems like anything she can possibly do not to rule in favor of a defendant, she will do. That, however, is not the role of a judge, who is supposed to be neutral and whose rulings are supposed to be directed by the facts, laws, and justice. We are now stuck with her shameful tradition on the highest court in the land. That six other “justices” agreed with her is flabbergasting.

I don’t know how Sotomayor and the other six judges can look at themselves in the mirror, knowing that they just sent a borderline retarded man to his death, barring unlikely intervention by Alabama Governor Bob Riley. Riley, it will be recalled, signed off on the execution of Darryl Grayson without allowing him to receive DNA testing, despite the existing previously untested semen.

The more experienced attorneys’ placing of Trotter in charge of the penalty phase, which was a literal life and death matter, was extremely irresponsible, and an abdication of their responsibility.

It is a sad, sad day, when the highest court in America signs off on the death sentence of a developmentally disabled man. What would be lost to give the man a new sentencing hearing where important evidence of retardation could be considered? Money? I guess a man’s life is not worth the money a hearing would cost.

“Jeffrey Deskovic, Esq, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 9 wrongfully convicted people and helped pass 3 laws aimed at preventing wrongful conviction. Jeff is an advisory board member of It Could Happen To You, which has chapters in CA, NY, and PA. He serves on the Global Advisory Council for Restorative Justice International, and is a sometimes co-host and co-producer of the show, “360 Degrees of Success.” Jeff was exonerated after 16 years in prison-from age 17-32- before DNA exonerated him and identified the actual perpetrator. A short documentary about his life is entitled “Conviction“, and episode 1 of his story in Virtual Reality is called, “Once Upon A Time In Peekskill“. Jeff has a Masters Degree from the John Jay College of Criminal Justice, with his thesis written on wrongful conviction causes and reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University.  Jeff is now a practicing attorney.

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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