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.”