Metropolitan News-Enterprise


Tuesday, October 30, 2012


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Ninth Circuit Upholds New-Trial Order in Death Penalty Case

Panel Says Inmate Received Poor Defense From Lawyer Who Was Former Judge




The Ninth U.S. Circuit Court of Appeals yesterday upheld a district judge’s order granting a new penalty trial to a Death Row inmate on the ground his trial counsel was ineffective in failing to present mitigating evidence.

A divided panel said U.S. U.S. District Judge Anthony W. Ishii of the Eastern District of California did not commit clear error in finding that Hugh Goodwin inadequately prepared for the penalty phase of Douglas Stankewitz’s 1983 trial.

Stankewitz’s habeas corpus counsel argued that Goodwin was so fixated on trying to convince jurors of the potential for redemption through God that he failed to present a potentially successful case in mitigation based on the defendant’s horrifying childhood.

Goodwin, a former Fresno Municipal Court judge, was admonished by the Commission on Judicial Performance for making church attendance a probation condition for some defendants and giving others the option of attending church instead of going to prison. A newspaper story quoted him as calling the commission “an instrument of Satan” following the discipline.

Goodwin was defeated for re-election in 1978 and returned to practicing law in Fresno.

Earlier Case

Stankewitz could become the second Death Row inmate to avoid execution based on Goodwin’s ineffectiveness. Troy Lee Jones was freed in 1996, after serving 14 years, when prosecutors decided not to retry him after his sentence was overturned by the state Supreme Court.

Goodwin took inactive status in 1996 at age 73, after more than 46 years as a lawyer and judge, and died in 2004, two months after the Ninth Circuit reversed Ishii and ordered him to hold an evidentiary hearing on Stankewitz’s petition.

 Stankewitz, who came within one week of being executed in 1991, was convicted twice of the 1978 killing of Theresa Graybeal, 22, of Modesto.

A companion, testifying under grant of immunity, said Stankewitz and friends kidnapped Graybeal and stole her car from a Manteca parking lot. After forcing Graybeal to drive them to the Fresno area, he shot her, turned to his companions and said, “Did I drop her, or did I drop her?,” the witness testified.

His first conviction and death sentence were set aside by the state Supreme Court because he had not been granted a mental competency hearing. When the case was sent back to the Superior Court, the judge ruled that the public defender, who had represented him at the first trial, had a conflict of interest and appointed Goodwin to represent him.

The second conviction and sentence were upheld by the state high court in July 1990.

In the habeas proceedings, his counsel argued that a competent defense would have included presentation of evidence that Stankewitz was placed in a foster home at age six after suffering beatings and electric shocks administered by his mother, who lost her parental rights.

Testimony also should have been presented regarding the defendant’s history of mental illness, possibly related to fetal alcohol syndrome and childhood abuse, and substance abuse, as well as the fact that he had binged on alcohol, heroin, and methamphetamine, and had not slept, for at least 48 hours before the murder, the attorneys argued.

Client’s Wishes

The government’s response included a declaration from Goodwin in which he said that Stankewitz was opposed to any penalty phase defense at all, and in particular to any defense that involved the use of his family as witnesses, or the use of expert witnesses. The government also argued that a better defense would not have changed the outcome in light of the overwhelming evidence of aggravating circumstances, including nine other episodes of criminal violence in which the defendant had participated.

Ishii initially agreed, and denied Stankewitz’s habeas corpus petition without hearing testimony. But the Ninth Circuit called that an abuse of discretion, saying the petitioner had established a prima facie case of ineffective assistance.

On remand, the parties stipulated the judge could reconsider his original ruling without hearing live testimony. After reviewing thousands of pages of documents, the judge concluded that no reasonable defense attorney would have failed to present the mitigating evidence, and that jurors might not have imposed the death penalty if they had heard it.

Split Opinion

Judge Raymond Fisher, writing yesterday for the Ninth Circuit, agreed.

The defendant’s wishes do not excuse Goodwin’s failure to investigate and present mitigating evidence, the appellate jurist said.

Fisher also rejected the contention that evidence added to the record on remand—showing that Goodwin had possession of prior counsel’s files containing much of the mitigating evidence—rebutted the claim of deficient investigation.

“It is undisputed that, despite Goodwin’s possession of the files, he did not investigate any of the evidence contained within them,” Fisher wrote, noting that Goodwin neither contacted prior counsel to discuss the contents nor hired an investigator to interview witnesses identified in the files, nor interviewed them himself.

Judge Jay S. Bybee concurred, while Judge Diarmuid F. O’Scannlain dissented.

O’Scannlain argued that Ishii “failed to evaluate the potentially aggravating effect of much of Stankewitz’s new evidence.”

The case is Stankewitz v. Wong, 10-9900.


Copyright 2012, Metropolitan News Company