Eleventh Circuit Upholds Death Sentences, Absolves Failures by Court-Appointed Counsel in Three Georgia Death-Penalty Cases

The U.S. Court of Appeals for the Eleventh Circuit has denied habeas corpus relief to three Georgia death-row prisoners in a series of opinions that narrowly interpreted the scope of a defendant’s right to effective representation in the penalty phase of a capital trial. The decisions, issued in unrelated cases over the course of 36 hours on September 15 and 16, 2020, absolved court-appointed counsel of significant failures in investigating, presenting, and arguing to the jury reasons to spare their clients’ lives.

On September 15, a three-judge appeals court panel ruled without dissent In Ledford v. Warden that court-appointed defense counsel to Michael Ledford had not been ineffective for telling the jury during his May 2009 sentencing proceeding that Ledford had Anti-Social Personality Disorder, was amoral, and lacked empathy. The jury also heard from the defense mental health expert that Ledford was a “sexual sadist” and a psychopath. The circuit court ruled that was not an unreasonable strategy to spare Ledford’s life, that counsel’s performance had not been deficient, and that counsel therefore was not ineffective.

One day later, the court unanimously ruled in Franks v. Warden that, despite “undeniable … overwhelming evidence of their client’s guilt,” trial counsel were not ineffective for arguing in the penalty phase of David Scott Franks’s 1998 capital trial that the jury should spare his life based on residual doubt over who was the killer. Franks’ court-appointed counsel focused on doubt as to guilt and testimony asserting his “good character,” instead of investigating and presenting evidence of Franks’ chronically traumatic childhood and abusive father, his substance abuse, or his cognitive defects and mental illness. Deferring to the factfinding of the Georgia trial court, the circuit panel said that the Georgia courts had not unreasonably applied Supreme Court law in denying Franks’ ineffectiveness claim. Because trial counsel had not been ineffective, the panel said, Franks’ court-appointed direct appeal counsel also could not have been ineffective for failing to investigate mitigating evidence and challenge trial counsel’s performance claim.

Also on September 16, a third panel of the court ruled in Presnell v. Warden that Virgil Presnell’s court-appointed trial counsel had not been ineffective in the penalty phase of his 1999 resentencing trial for failing to investigate and present evidence that Presnell’s mother drank bourbon to excess throughout her pregnancy and that, as a result, Presnell suffered from fetal alcohol spectrum disorder. The court unanimously held that counsel’s failure to further explore the issue was not unreasonable once Presnell’s mother told his trial investigator that she “did not drink except socially” during the pregnancy.

Over the course of the past decade, death sentences in Georgia have plummeted as the statewide Office of the Capital Defender has taken over the representation of nearly everyone facing the death penalty in the state. No Georgia capital defendant who has been represented by counsel at trial has been sentenced to death since 2014. Death penalty experts have attributed the defender’s success to thoroughly investigating the life and mental health histories of its clients and working with prosecutors before trials even begin to reach non-capital dispositions.

Steve Bright, former director and president of the Georgia-based Southern Center for Human Rights, observed in 2019 that the Georgia death penalty cases that have been proceeding to execution do not involve worse crimes than those that are producing life verdicts today. “Those are people who were sentenced to death some time ago often with lawyers who were not qualified to try a death-penalty case,” Bright said. “They are also people who would not be sentenced to death today.”