The issue before the justices was a step removed from the ultimate question of whether the defendant, Jeffrey T. Landrigan, had been deprived of his constitutional right to the effective assistance of counsel. Rather, the case presented an issue of habeas corpus law: whether the Federal District Court in Phoenix had properly dismissed Mr. Landrigan’s habeas corpus petition as so insubstantial as not even to deserve a hearing.
The United States Court of Appeals for the Ninth Circuit ruled last year that the district court’s action was an “abuse of discretion” and ordered it to grant Mr. Landrigan a hearing. Arizona appealed that ruling to the Supreme Court.
Writing for the majority on Monday, Justice Clarence Thomas said that Mr. Landrigan’s case was extremely weak and that the district court had been “well within its discretion” to conclude that even with the benefit of a hearing, he would not be able to show that the lawyer’s performance had made a difference to the outcome of the sentencing hearing. Under the Supreme Court’s precedents, such a showing of “prejudice” from a lawyer’s deficient performance is essential to a claim of deprivation of the Sixth Amendment’s guarantee of the effective assistance of counsel.
In a dissenting opinion, Justice John Paul Stevens said the majority’s conclusion about the weakness of the case was based on “pure guesswork” and a “parsimonious appraisal of a capital defendant’s constitutional right to have the sentencing decision reflect meaningful consideration of all relevant mitigating evidence.”
Justice Anthony M. Kennedy voted with Justice Thomas and the three other conservative justices in the majority: Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. In the three Texas death penalty decisions last month, Justice Kennedy provided a crucial fifth vote to the liberal side of the court: Justice Stevens along with Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
But the Texas cases, focusing on jury instructions, presented a different set of issues. Justice Kennedy’s vote in the latest case, far from being inconsistent with his past opinions, was in fact fully consistent with his vote two years ago in a case that presented a similar question of a lawyer’s competence in a death penalty case. In that case, Rompilla v. Beard, a 5-to-4 majority found, over Justice Kennedy’s vigorous dissent, that a defense lawyer’s failure to investigate possible mitigating evidence fell below acceptable standards.
The new element that determined the outcome of the latest case, Schriro v. Landrigan, No. 05-1575, was therefore not Justice Kennedy’s vote but that of the newest member of the court, Justice Alito. As an appeals court judge, he was the author of the decision that the Supreme Court overturned in the Rompilla case. His predecessor on the Supreme Court, Justice Sandra Day O’Connor, voted with the majority to overturn that decision. She had expressed mounting concern about the death penalty in general and about the quality of representation for death-row inmates in particular.
As in the abortion case the court decided last month, in which Justice Alito’s vote with the 5-to-4 majority determined the outcome, the latest case underscores the difference that his presence on the court can be expected to make in various doctrinal areas. With respect to the death penalty in particular, the decision may indicate that the court is turning away from a clear trend of increased scrutiny of the performance of defense lawyers.
Mr. Landrigan had escaped from a prison in Oklahoma, where he was serving a 20-year sentence for murder, when he committed a second murder, this time in Arizona. He was a difficult defendant in the courtroom, repeatedly interrupting his lawyer and making self-incriminating statements. At the sentencing hearing after his conviction, he refused to permit his mother and his former wife to testify on his behalf. When the judge asked if he had anything to say, he replied: “I think if you want to give me the death penalty, just bring it right on. I’m ready for it.”
It was this behavior that Justice Thomas said overshadowed any deficiencies in the defense lawyer’s preparation of the mitigation case. “The mitigating evidence he seeks to introduce would not have changed the result,” Justice Thomas said. Further, he said, the state appeals court, in rejecting Mr. Landrigan’s appeal, reasonably concluded that he had waived the right to present mitigating evidence.
Justice Stevens objected that, as the appeals court found, there was substantial mitigating evidence, including a diagnosis of brain damage and mental illness, that had never come out at the hearing because the lawyer had failed to conduct an adequate investigation of his client’s background. Justice Stevens said the court should not assume that Mr. Landrigan had waived the right to present evidence of which he was unaware. In any event, Justice Stevens said, Mr. Landrigan was “at least entitled to an evidentiary hearing.”