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.

Federal Government Conducts Sixth Execution Amid Continuing Litigation Over COVID-19 and the Legality of Its Execution Protocol

The federal government conducted its sixth execution in ten weeks on September 22, putting William Emmett LeCroy (pictured) to death amid continuing challenges to the federal execution protocol and to carrying out executions during the COVID-19 pandemic. As federal appeal courts set aside LeCroy’s execution challenges, Christopher Vialva’s lawsuit challenging the legality of the federal execution protocol remains pending in the U.S. Supreme Court, with the Court’s resolution of that issue determining whether his execution occurs as scheduled on September 24.

The federal government’s resumption of executions has been complicated by concerns that the execution protocol adopted by the Department of Justice in 2019 violates the U.S. Constitution and federal statutes and regulatory procedures. A federal lawsuit about the execution protocol prevented the government from restarting executions in December 2019 and resulted in several preliminary injunctions in summer of 2020. Each of those injunctions was later dissolved, either by the federal circuit courts of appeal or by the U.S. Supreme Court, allowing the federal executions to take place.

The weekend before LeCroy’s execution, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued several rulings in the federal death-row prisoners’ execution protocol lawsuit. On September 20, 2020, the district court granted the death-row prisoners’ motion for partial summary judgment on their claim that the federal execution protocol violates the Food, Drug, and Cosmetic Act (FDCA), holding that the government’s use of pentobarbital in federal executions violates the FDCA’s premarketing, labeling, and prescription requirements. However, the court denied the prisoners’ motion for a preliminary injunction, ruling that the prisoners had not shown they would suffer irreparable harm as a result of the violation. In refusing to halt future executions, the court relied heavily on the fact that appellate courts had reversed all of the previous injunctions it had issued in the prisoners’ favor.

The district court’s denial of relief also set the stage for federal executions to continue pursuant to an execution protocol that the court has deemed illegal.

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