Friday, September 15, 2006
Page 3
Ninth Circuit Orders Reversal of Death Sentence Based on Counsel’s Failure to Present Mitigation Evidence
By TINA BAY, Staff Writer
The failure of a murder defendant’s attorney to investigate and present evidence of his client’s extensive drug history, early childhood head trauma and various mental impairments during the penalty phase of trial requires reversal of the defendant’s death sentence, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A three-judge panel reversed an order by U.S. District Judge Dean D. Pregerson of the Central District of California, who denied long-time California death row inmate Lavell Frierson’s petition for a writ of habeas corpus as to his 1986 death sentence.
This is the third death sentence imposed on Frierson and then overturned on ineffective assistance of counsel grounds since his first trial in 1978 for the kidnapping, robbery, and execution-style murder of Peruvian airline employee Edgardo Kramer in Inglewood.
While all three panel members believed Pregerson should have granted Frierson’s habeas petition, Judge Barry G. Silverman, in a concurring opinion, based his conclusion on Arnold Lieman’s incompetent handling of a mitigation witness without reaching the issue of whether Lieman was ineffective in his presentation of the mitigating evidence cited by the majority.
In the majority opinion, which was joined by Senior Judge Betty B. Fletcher, Judge Richard A. Paez agreed that Lieman performed deficiently as to the mitigation witness, but said Lieman’s poor development of mitigation evidence was a sufficient basis for reversing Frierson’s death sentence.
“The jury was never presented with evidence that Frierson suffered multiple severe brain injuries as a child that may have resulted in organic brain dysfunction; that Frierson suffered from a learning disability, low intelligence, and may have been borderline mentally retarded; that Frierson suffered from an emotional disorder; and that Frierson was a chronic lifelong substance abuser,” Paez explained.
Had Lieman presented such evidence at the penalty phase, the judge wrote, there is a reasonable probability that the jury would have returned a different verdict.
Paez pointed out that Lieman apparently failed to review key documents, such as the transcripts of Frierson’s second trial, that would have easily uncovered important mitigation evidence. For example, he said, the trial transcripts contained references to reports documenting Frierson’s possible brain damage, as well as his history of using PCP on a daily basis.
Additionally, Lieman did not adequately investigate client’s school, hospital, prison, and juvenile court records and reports, which were readily available to him and would have revealed multiple childhood brain injuries and an IQ indicating Frierson was borderline mentally retarded.
“Lieman’s failure to develop and present important mitigation evidence undermines confidence in the fairness of the jury’s death verdict,” Paez wrote.
Lieman, who according to his office personnel is scheduled to be out of the country for the next year, did not return a call seeking comment on the case.
Frierson in 1978 kidnapped and robbed Kramer and fellow airline employee Guillermo Bulnes, shooting the two in the back of the head near an Inglewood motel, according to evidence presented at trial. The two had been parked in front of the motel while waiting for a woman named Chris, the record showed. Bulnes survived and later testified against Frierson.
After Frierson was convicted of all crimes charged and sentenced to death in 1979, the California Supreme Court reversed his conviction and sentence because his counsel had failed to prepare and present a diminished capacity defense.
Frierson was again tried, convicted and sentenced to death in 1980. The high court affirmed his conviction but reversed the special circumstances and penalty because defense counsel refused Frierson’s clearly expressed desire to present a diminished capacity defense at the special circumstances phase of the trial.
The case is Frierson v. Woodford, 04-99002.
Copyright 2006, Metropolitan News Company