DEATH BY DEFAULT
THE UNREPRESENTED DEFENDANT
PETITION FOR CLEMENCY BY JOE LOUIS WISE, SR.
ie oo
TABLE OF CONTENTS
Index Of Exhibits 2... ee eee eet eee eee ene ii
A. Introduction 2... eee eee eee 1
B. The Crime eats S San Tage: paw Sow anes ws Baw tee ot ww te dite oo aU ge Pa ae x 4
Cc. The Unrepresented Capital Defendant ................ 0.002000 000- 6
Boe Appointment Of A Neophyte... .... 0... 0.0.0.0 00 00.2 eee 6
2. Ethics Of Accepting The Case... 2... ... ee ee eee eee 9
3. Claiborne’s Failure To Seek Necessary Assistance ............... 11
4. The Death Threat Against Claiborne ............ 00000000005 14
5. Consequences Of Inexperience: Forfeit At The
Sentencing Trial i052 fs sees es 4G Ee RENE Cee e ee ow ls 14
6. State Habeas: The Big Default. ... 2.0.2... .. 0.000000 0 0008 20
‘Ds Joe’s Neglected Warnings About His Lawyers’ Deficiencies ......... 23
8. What Might Have Been: The Probability Of Federal Relief ......... 27
D. The Untried Mitigation Case 2... ee eee 33
1. Generational Abuse 2... 6. ee ee eee 33
2. Poverty And Education . 2.0660 6 sauce cee eae ee ea ee 35
3: Borderline Mental Retardation .... 2.2... .. eee ee eee ee eee 39
4. Joe’s Violent And Abusive Upbringing.................050-. 40
3. The Mitigating Force Of Joe’s Awful Upbringing .............0. 45
E. Rehabilitation And Remorse... 0.00. cece ce tence eet eee ees ee AT
F. Conclusion, . sages i eae SESS RAS Pw ee seamen ee eee Ee ae 52
INDEX OF EXHIBITS
TAB
Excerpt of Transcript of Trial, Nov. 9,.1984 ....-...-... 0.00.0 cece eee 1
Transcript of State Habeas Proceeding, Apr. 28, 1988 ...........0.......04. 2
Table 1, Experience Levels of Lawyers —, Death Row Inmates ........... 3
Affidavit of Marie McFadden Deans ...- 0.2 ee ee eee eee ee 4
Affidavit of William S. Geimer .. 2... ee ee ee ee ee eae 5
Affidavit of Richard J. Bonnie 6... eee tee 6
Affidavit of Craig S, Cooley: aye ¢ «3 2 eierw ey ee eG ee OM CES Re BEY, Ra Raed 7
Order of Mecklenburg Circuit Court, entered Oct. 7, 1986 .............. 00005 8
Order of Mecklenburg Circuit Court, entered Aug. 4, 1987 ..............2.00.- 9
Order of Mecklenburg Circuit Court, entered Dec. 11,1989 ..............008 10
Invoices of Robinson and Hawthorne for Reimbursement of Attorney Fees ......... 11
Declaration of Witnesses’ Availability, Nov. 27,1987 ........ 002.0020 e eee 12
Notice of Appeal, Mar. 28, 1990 4. ssa eae cee eee ee eens eee a ae wwe 13
Index, Wise v. Rogers, Mecklenburg Circuit Court... 2... 6.0... e eee eee eee 14
Opinion and Order of Judge Robert R. Merhige, Mar. 17, 1992 ............... 15
Letter of Sept. 11, 1987 from Joe Wise to Eugene Coleman .........5..0..4. 16
Transportation Order, entered Oct. 9, 1987... 2... 0. eee ee eee 17
Letter of Dec. 6, 1987 from Joe Wise to Eugene Coleman ..............000% 18
Letter of Aug. 4, 1988 from Judge McCormick ..... 2.0... 0.2. eee eee eee 19
Letter of Aug. 12, 1988 from Joe Wise to the Virginia Supreme Court .........-. 20
Order of the Virginia Supreme Court of Sept. 24,1990 ...........-----0 0508 21
ii
Letter of Jul. 30, 1991 from Joe Wise to Judge McCormick. ................. 22
Letter of Sept. 3, 1991 from Eugene Coleman to Joe Wise ..............20.. 23
Summary of Successful Habeas Cases 2.66.00 eee eee eee eee eee 24
Letter of Aug. 27, 1993 from Scott E. Sundby .....................0000. 25
Statement of Alma W. Johnson .. 0.60 eee eee eee eee eee eee eee 26
Statement of Hilda Ann Dunn... 1. ee eee eee ene 27
Statement of Doza Dunston .. 1... ec eee eee ee eee 28
Statement of Alma Williams 6.0... 00000 o cee cece e bene e eee eee e es 29
Social History for Joe Louis Wise... 6... ee eee ee eee 30
Statement’of James. Peeblés «5. cosicci co eo were ee wt oe ee ee UE eo 31
Statement of Linda Banks Dillard ©... 6. ee ees 32
Statement of Thomas Ray Wise .. 2... 6. eee eee ee eee 33
Statemeént:of Diané M."BOOSE 6 osc wise a «go dws s ow gow ce ww wean oe ow Mewes & #2 NM cane 34
Affidavit of David Herbertson «ss owas se ei we eas ew eee se wre oak ew ee o ope 35
Affidavit of Rich Hutchinson 2... 1. eee ee tee 36
Affidavit of Lynda Peacock oo... 00 .e seve cece eee eeseeeeeeeeeneee 37
Excerpt, Richmond News-Leader, Dec. 29,1986 ©. 1... . eee ee tees 38
Report of Dr. James B; Wade of sage seb ee eek a ce be ale eS eM Oo ae ws 39
iti
DEATH BY DEFAULT
THE UNREPRESENTED DEFENDANT
A. INTRODUCTION
On November 9, 1984, Joe Louis Wise, Sr., alone and unrepresented in all but
appearance, faced the jury that would decide whether he lived or died. Joe, a young black
man, was facing death for a crime he committed when he was 21 years old. He was
borderline mentally retarded and had dropped out of school in the ninth grade, after being
held back at least once. Joe had been raised in wretched poverty, never consistently living in
a house with indoor plumbing until he made the upward move into a public housing project
at age twelve. Moreover, Joe had been raised by corrupt and cruel parents who beat him
horribly, threatened to put him in foster homes, introduced him to sex, drugs, gambling, and
crime, and in short provided him with the worst possible upbringing. None of these facts
were known to the jury.
Though practically alone, Joe did not face the jury without the semblance of represen-
tation. Standing next to him was William Bryant Claiborne, whom the Mecklenburg County
court had appointed to be Joe’s lawyer. Claiborne was unprepared and unqualified to
represent Joe in the fight for his life. The 28 year-old Claiborne was just over two years out
of law school, had never tried a murder case, had never tried a jury trial, had never received
any capital defense training, had not consulted with any experienced capital defender, and
had undertaken little or no investigation of Joe’s life. When his, and Joe’s, turn came to
present evidence that would convince the jury that Joe should receive a sentence of life
imprisonment rather than death, Claiborne offered absolutely nothing, because he had looked
for nothing.
Between Joe and the death penalty stood the power of Claiborne’s persuasion. Here
is what he said:
MR. CLAIBORNE: May it please the Court and ladies and gentlemen of the
jury. I’m not going to keep you any more than one or two minutes because
you know what evidence you convicted the defendant with.
The last instruction which the Court gave you says that mitigating
circumstances are facts or circumstances which though not justifying or
excusing the offense, may properly be considered in determining whether to
impose a sentence of death.
All I can say is that you have been here for the last four days, this is
day number five. You know the evidence as you considered it in all phases of
the trial. You know the evidence which you considered and convicted him of
the use of a firearm, you know the evidence you considered and convicted him
of grand larceny, you know the evidence you considered and convicted him of
armed robbery and you know the evidence you used in convicting him of
capital murder.
It’s not our decision now, as the prosecutor said. It’s not the people’s
out here decision. But the decision is yours. You are the sole determiners of
the facts in this case. You know what went on. You heard that, every bit of
evidence.
All I ask is that you examine yourself and that you make a determi-
nation after an examination of yourselves. What more else is there to say?
We don’t say, have to say any more because you know. And I believe that
after you look at this, at the circumstances, you will find that I don’t have to
go over the mitigating facts for in terms of the evidence presented because you
know.
But after you look at it, after you look at it, you would have to make
your decision. And I ask that you spare this man. You know the facts.
Nobody else has to say anything.
We sat up here and we went through it all. Just think about it and
examine yourselves. Thank you.
Excerpt, Transcript of Trial on November 9, 1984, pp. 1602-04 (Tab 1). These 22 sentenc-
es are all Claiborne said to the jury that had just convicted Joe and was about to determine
his fate. The jury returned in 42 minutes with a verdict of death.
Joe’s next set of attorneys challenged in state habeas corpus the effectiveness of
Claiborne’s performance, which one expert has called "the least competent representation
. . in preparing for and presenting a case in mitigation" he has ever seen. Yet again, Joe’s
lawyers defaulted on their duty to him, failing to properly present his case and then neglect-
ing to file the notice of appeal that would have preserved his claims for review in federal
court. The consequence of these attorneys’ mistakes was that no jury and no court, state or
federal, ever considered Joe’s compelling case in mitigation.
This petition for executive clemency details and explains why Claiborne did and said
no more than this, what Claiborne could have done and said, and why no court has required
that Joe Wise have even the one chance our Constitution guarantees capital defendants to
demonstrate that he does not deserve his death sentence. Because Joe has been abandoned at
every step by his appointed lawyers, Joe’s case constitutes a complete failure of our system
of justice. Accordingly, we petition the Governor to commute Joe’s death sentence to life
imprisonment.
B. THE CRIME!
On December 1, 1983, William Ricketson left his house shortly before dark to get a
haircut and do some hunting; he had a rifle and shotgun in the cab of his truck. He was
known to have $12.00 on him when he departed. He got a haircut for $4.00 and’bought a
drink and a snack. He was drinking; the autopsy report shows that he was intoxicated.
Eventually, though no one knows how or why, he ended up at Joe Wise’s residence. Around
8:30 p.m., Joe shot him with a .25 caliber pistol, beat him over the head with a rifle,
breaking the stock, put him in a wastewater-filled hole, and shot him in the chest with a
shotgun. The official cause of death was drowning.
Joe drove to his father’s North Carolina residence in Ricketson’s truck. The next
day, heading toward South Carolina, he was arrested on Interstate 95 near Dunn, North
Carolina. Joe waived extradition and was returned to Mecklenburg on Monday, December
5, 1983. Though the usual procedure was to appoint lawyers for indigent defendants on the
first court day after arrest, no one was appointed to represent Joe until December 12, 1983.
William Bryant Claiborne was appointed that day. By that time, Joe had given the police
five separate, inconsistent statements.
After Claiborne was appointed, Joe gave additional statements and a deposition and
asked for a polygraph test. Not once in any of the interrogations or in the deposition did the
police or prosecution seek from Joe any admissible evidence that he had robbed Ricketson or
taken any money from him. The prosecution conditioned the polygraph on a stipulation of
its admissibility at trial, to which Claiborne and Joe agreed. Notwithstanding these unusual
‘Facts set forth in this section are derived from the transcript and record of the trial of Joe Louis Wise.
4
and favorable conditions for interrogation, the prosecution elected not to ask Joe whether he
took any money from Ricketson, even though without proof of robbery, the prosecution
could not seek a death sentence. The polygraph indicated that Joe killed Ricketson.
The defense case during Joe’s guilt trial consisted of seven witnesses. Six of the
defense witnesses had testified for the prosecution, and they repeated and expanded on their
prosecution testimony when called by the defense. Following Joe’s conviction in the guilt
trial, neither Claiborne nor the prosecution offered any evidence in the sentencing trial.
Thus, arguments began immediately. The prosecution’s argument covered tén pages of
transcript. Claiborne compressed the case for Joe’s life into the "one or two minutes"
required to speak the 22 sentences of his closing argument. Generally, Claiborne’s argument
centered on the theme that the jury knew what evidence it convicted Joe on. Two of the 22
sentences alluded to mitigating evidence and suggested, curiously, that the jury knew what
the mitigating evidence was, though Claiborne had not called a single witness during the
sentencing trial. The jury returned its death verdict in less than 45 minutes. Excerpt,
Transcript of Trial, November 9, 1984, p. 1605-06.
C. THE UNREPRESENTED CAPITAL DEFENDANT
"While a criminal trial is not a game in which the participants
are expected to enter the ring with a near match in skills, nei-
ther is it a sacrifice of unarmed prisoners to gladiators."
United States v. Cronic, 466 U.S. 648, 656-57 (1984) (quoting Judge Wyzanski in United
States ex. rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975)). Because of the
inexperience, lack of zeal, and other derelictions of his trial and state habeas attorneys —
deficiencies matched in no other capital case tried in Virginia in the post-Furman era —
barely a moment passed in Joe Wise’s trial when his trial had true adversarial character.
Joe’s trial attorney entered the ring without the skills necessary to properly defend a personal
injury suit, much less a capital case, and his state habeas attorneys forfeited Joe’s opportunity
to demonstrate the egrégious absence of any true advocate for Joe at trial. In essence, Joe
Wise was an unrepresented defendant sacrificed to the ineptitude and apathy of his lawyers.
The sacrifice began with the appointment of his trial counsel.
1. Appointment Of A Neophyte
William Bryant Claiborne graduated from University of Virginia Law School in 1981
and returned to his native Halifax to establish a solo practice. Transcript of State Habeas
Hearing on April 28 (Hab. Tr.), 1988, p. 11 (Tab 2). Claiborne had not tried a single jury
trial — civil or criminal — before he was appointed to represent Joe. Hab. Tr. 16. Before
his appointment he handled only two felonies, the most serious charge being rape. Those
were resolved before trial or tried to the bench. Hab. Tr. 14. Based on such experience, no
defendant in his right mind would have chosen Claiborne to represent him in a trial for his
life. Indeed, no corporation would have hired Claiborne to defend its financial assets before
a jury except in a case of little consequence. But in this case of great consequence, Joe did
not get to choose his own trial lawyer. Like every indigent defendant, Joe could only rely
on the Mecklenburg court to ensure that his appointed lawyer had adequate experience and
expertise.
There was no shortage of experienced trial lawyers in Mecklenburg County. But for
whatever reasons, the court did not choose a Mecklenburg attorney. Instead, the court
looked toward Halifax County and chose Claiborne. At that time, courts usually appointed
two attorneys to represent capital defendants. Table 1, Experience Levels of Lawyers
Representing Death Row Fivnaies (Tab 3). Indeed, of the 30 trials resulting in death
sentences that took place between 1975 and 1985, in fewer than eight did the trial court
appoint only one lawyer. Table 1, Experience Levels. The Mecklenburg court opted not to
follow this practice, despite Claiborne’s inexperience. The court appointed 28-year-old Clai-
borne, and left him on his own.
In terms of Claiborne’s utter lack of experience and seasoning, the court’s choice was
unprecedented at the time, and fortunately has not been equaled since. As Table 1 demon-
strates, the "team" assigned to Joe’s defense had easily the least experience of any team
representing a condemned prisoner in the post-Furman era. Table 1, Experience Levels.
Moreover, so far as we can determine, Claiborne is among the youngest lawyers appointed to
a capital defense in any capacity, much less as lead or sale counsel. Table 1, Experience
Levels. That the Mecklenburg court appointed as Joe’s sole advocate an attorney with
Claiborne’s combination of inexperience and youth is both unique and disquieting.
No special insight, after all, is necessary to see that Claiborne’s combination of youth
and inexperience made him an unsatisfactory choice to defend Joe. Claiborne had tried no
murder cases, tried no jury trials, taken. no special courses for capital work, and received no
special training for capital work. Hab. Tr. 16. In short, Claiborne was as green an attorney
as the court possibly could have chosen. In and of itself, Claiborne’s inexperience was
enough to deprive Joe of any chance at a fair trial. Capital litigation is specialized, sophisti-
cated, time-consuming, and difficult. The stakes are high, the pressures great, and the
clients often difficult. Additionally; capital defense calls for fine judgments and hard
decisions. An attorney just over two years out of law school with no murder trials and no
jury trials of any type under his belt does not have what it takes to make good judgments and
decisions; that ability comes only with time and experience. In short, capital defense is no
place for a novice. Affidavit of Marie Deans, 11 6 (Tab 4).
Professor William S. Geimer, Director of Washington & Lee’s Virginia Capital Case
Clearinghouse, and Professor Richard J. Bonnie, Director of the University of Virginia’s
Institute of Law, Psychiatry, & Public Policy, are experts in capital litigation, and they both
agree that because of his "total lack of relevant experience," Claiborne should not have
accepted appointment to represent Joe. Affidavit of William S. Geimer, pp. 1-2, 4 (Tab 5);
Affidavit of Richard J. Bonnie, 1 4 (Tab 6). Richmond’s seasoned capital defender Craig S.
: Cooley, who was appointed in 1979 to represent Linwood Briley in three capital cases when
he was just over two years out of law school, provides a useful contrast. Unlike Claiborne,
Cooley had co-counsel, had tried murder trials, and had tried jury trials; still Cooley does
not believe that his experience qualified him to represent a capital defendant on his own.
Affidavit of Craig S. Cooley, 13 (Tab 7).
Such an appointment would not happen today. As Professor Geimer explains:
It is to the great credit of the Commonwealth that one in Mr.
Claiborne’s position would not today be permitted to represent
Joe Wise or any capital defendant. Since the Virginia General
Assembly enacted Va. Code Ann. §19.2-163.8(E), minimum
standards for appointment of capital defense counsel have been
implemented. As a consultant to the Public Defender Commis-
sion, I had a part in the drafting of those minimum standards.
They are not onerous and do not in themselves insure competent
representation. Nevertheless, one in Mr. Claiborne’s position
would not come close to meeting them.
Affidavit of William S. Geimer, pp. 2-3. As demonstrated below, Claiborne’s inexperience
resulted in actual harm to Joe’s legal interests, leading Professor Geimer to wonder "whether
Joe Wise is to be executed because the Commonwealth and the members of its legal
profession came only lately to a commitment to minimal standards of representation."
Affidavit of William S. Geimer, p. 3. This much is sure: the responsibility for Joe’s life
never should have been placed in the hands of a lawyer as inexperienced and unprepared for
the job as Claiborne. Not only should the Mecklenburg courts have respected more Joe’s
entitlement to minimally competent counsel, Claiborne himself owed a duty both to Joe and
to the court to decline the appointment.
2. Ethics Of Accepting The Case
The Code of Professional Responsibility does not presume that every lawyer is
competent to handle any legal matter that might arise. Instead, the CPR recognizes that the
vast landscape of modern law encompasses areas that require specific expertise, and that no
one lawyer can achieve competency in all the different areas of the law. Consequently in
Disciplinary Rule 6-101 (Competence and Promptness), the CPR dictates that:
A lawyer shall undertake representation only in matters in
which:
(1) The lawyer can act with competence and
demonstrate the specific legal knowledge, skill,
efficiency, and thoroughness in preparation em-
ployed in acceptable practice by lawyers undertak-
ing similar matters, or
(2) The lawyer has associated with another lawyer
who is competent in those matters.
Revised Virginia Code of Professional Responsibility, DR 6-101(A).
Because Claiborne did not associate with other counsel, the question of whether he
acted ethically and professionally in accepting Joe’s case depends on whether Claiborne had
the knowledge, skill, efficiency, and thoroughness in preparation required for a capital trial.
As shown above, Claiborne could not have acquired these qualities through experience or
training. While it might be possible for Claiborne to acquire the necessary skills in some
other way than through experience or training, nothing in the record of Joe’s trial or state
habeas shows that he did so.
Professor Geimer, an experienced trial lawyer and expert in capital defense, has
reviewed in detail Claiborne’s explanation of his handling of Joe’s trial. Professor Geimer
concludes that "William Claiborne acted both unprofessionally and incompetently" and that
"acceptance of the case by Mr. Claiborne violated DR 6-101." Affidavit of William S.
Geimer, pp. 2-4. Professor Geimer notes that "four years after the trial, at the state habeas
hearing on April 28, 1988, Mr. Claiborne still did not know even the basic law he should
have known in 1984. His defense of his advocacy, for example, persisted in the erroneous
10
understanding that if the Commonwealth proved an aggravating factor the sentence was to be
death and there was therefore no point in pursuing leads to evidence in mitigation."
Affidavit of William S. Geimer, p. 4. If Claiborne could get wrong so basic and important
an issue as this, then he lacked the appropriate qualifications, and the ethical code required
that he refuse appointment as Joe’s lawyer.
3. Claiborne’s Failure To Seek Necessary Assistance
The inexperience of a capital defender is dangerous to the defendant, but it may not
be fatal if the attorney knows he needs expert assistance and seeks it out. Indeed, if the
attorney himself is not adequately qualified to handle the case, he is ethically required to ©
associate an attorney who is qualified. DR 6-101); Affidavit of William S. Geimer, pp. 3-
4. Claiborne chose instead to handle the case on his own. This decision was neither
intelligent nor necessary.
Numerous capital trials had been held by the time of Joe’s trial, creating a body of
experienced defenders who could have aided Claiborne. So far as we can determine,
Claiborne never contacted any of the lawyers who handled those trials for advice, though it is
quite likely that any of them would have provided assistance. Affidavit of Craig S. Cooley,
110. Indeed, Craig Cooley consulted with more than ten lawyers in preparing and trying
Linwood Briley’s cases. Affidavit of Craig S. Cooley, 15.
Professor Bonnie had established a program on capital defense at the law school from
which Claiborne had just graduated, yet Claiborne never contacted Professor Bonnie to
obtain the assistance he needed. Affidavit of Richard J. Bonnie, 14. Professor Bonnie,
11
after noting that Claiborne should have refused the appointment in the first place, goes on to
say that:
At the very least, he should have requested the Court to appoint, as co-coun-
sel, an attorney with relevant experience. Moreover, Mr. Claiborne made
matters worse by not seeking the assistance of the resources available at the
time of his representation of Joe Wise. . . . I was actively assisting other
attorneys involved in death penalty cases at this time. I surely would have
offered my assistance and would have put him in touch with other persons who
could have assisted him.
Affidavit of Richard J. Bonnie, 1 4.
Marie Deans had formed the Virginia Coalition On Jails And Prisons two years
before Joe’s trial and had begun to compile an enviable record in the capital cases on which
she assisted, but Claiborne never contacted her either:
[I]t is imperative that less experienced lawyers seek all the help they can get.
Lawyers who assume, in their first capital trial, that they know what they are
doing are asking for trouble, because they don’t. In a capital trial, when you
ask for trouble, you generally get it.
Though I was available for consultation on Joe Wise’s case, his trial
attorney Mr. Claiborne never contacted me to ask for my assistance. I have
never turned down any lawyer who asked for my help, and if Mr. Claiborne
had asked me I would have helped him in any way that I could. I understand
that Mr. Claiborne never asked any experienced capital trial lawyer or re-
source organization for any assistance whatever.
Affidavit of Marie Deans, 11 10-11. Contact with either Ms. Deans or Professor Bonnie
would have protected Claiborne from many of the fundamental errors he committed.
One of Claiborne’s errors was in failing to request appointment of an investigator.
Claiborne decided not to do so because, he said at the state habeas hearing, Joe gave him no
reason to do so. Hab. Tr. 24. This conclusion reflects a basic misunderstanding both of the
nature of a sentencing trial and of the defender’s role. First, the case in mitigation does not
12
present itself, fully formed, to the defense lawyer; he has to go out and find it. By deciding
not to use an investigator, Claiborne ensured that no case in mitigation would be prepared.
After all, a lawyer new to the bar and receiving as his fee the pittance that the Common-
wealth paid in 1984 for capital defense could not have conducted a time consuming, travel-
intensive mitigation investigation and still held his practice together. Second, by relying on
Joe, who is borderline mentally retarded, to decide whether an investigator was needed,
particularly with respect to the sentencing trial, Claiborne demonstrated his lack of expertise
in capital defense and placed unwarranted faith in Joe’s legal acumen. When he chose not to
get an investigator, Claiborne relinquished the chance Joe had to be acquitted at the sentenc-
ing trial.
Craig Cooley’s experience demonstrates how wrong Claiborne was. Like Claiborne,
Cooley also was just over two years out of law school when he handled his first capital cases
in 1979-80 for Linwood Briley, and the comparison is instructive. Cooley had tried murder
cases and jury trials, but beyond that, he had <0 ace. appointed by the court, he consulted
widely with other attorneys, he engaged in extensive pretrial motions practice, he employed
an investigator, and most importantly, he’ prepared and presented a case in mitigation, with
the result that Linwood Briley did not receive the death penalty for any of the three murders
on which Cooley represented him. Affidavit of Craig Cooley, passim. Claiborne, by
contrast, had not tried any murder cases or jury trials, he asked for no co-counsel, he
consulted with no experienced attorneys, he filed virtually no pretrial motions, he engaged no
investigator, and he prepared no case in mitigation. Hab. Tr. 24. Had Claiborne looked
13
outside himself for answers, he would have discovered that he should have followed Cooley’s
path instead of his own. -
4. The Death Threat Against Claiborne ~
At home one night after the trial began, Claiborne received a telephone call in which
the caller threatened him with death in connection with Joe’s trial. Claiborne, who is black,
thought the caller was wine: He reported the call immediately to the police. Thereafter, for
as long as the trial continued, the Mecklenburg police waited at the county border each
morning for Claiborne, and accompanied him back to the border each evening.” So far as
Claiborne knew, no effort was made to find the perpetrator.* Nothing ever came of the
threat, yet it seems reasonable that a young attorney, trying as his first jury trial a difficult
and emotional capital case, could not help but be alarmed by the threat. Whatever the effect,
it could not have contributed to the fairness of the trial.
5. Consequences Of Inexperience: Forfeit At The
Sentencing Trial
Claiborne made many errors and mistakes during the case that demonstrated how
overwhelmed he was. He revealed his inexperience almost as soon as the trial began.
During voir dire, prosecutor Frank Harris questioned almost every juror in such a way as to
impart the notion that Joe had to prove his innocence beyond a reasonable doubt before the
jury could acquit him. For example, Harris asked prospective juror E. Walker these
questions:
Given the likelihood that the caller could drive, a more sensible approach, if the threat was taken seriously,
--would seem to have been for the police to pick Claiborne up at his home in Halifax in the moming and retum
him there in the evening.
°The source of this information is an interview with Claiborne. i
14
Mr. Harris: .. . If you are selected as a juror here today, would you come
and serve with an open mind and listen to all the evidence and if you believe
from the evidence beyond a reasonable doubt that the defendant is guilty,
would you find him guilty?
Prospective Juror Walker: Yes, sir.
Mr. Harris: If you believe from the evidence beyond a reasonable doubt that
he was not guilty, would you vote to turn him loose?
Prospective Juror Walker: Yes, sir.
Hab. Tr. 32.
Joe’s lawyer never objected, even though the Commonwealth’s Attorney had twisted
the two most treasured precepts of our system of justice — the presumption of innocence and
the requirement that the state prove guilt beyond a reasonable doubt. Asked to defend this
failure at the state habeas hearing four years later, Claiborne expressed the surprising view
that Harris’s distortion of these two precepts was merely a matter of semantics. Hab. Tr.
28-34. Strangely, Claiborne saw this question as objectionable in his capacity "as an
attorney" but he did not object on Joe’s behalf. Hab. Tr. 30. "I think that’s a small point,"
Claiborne remarked. Hab. Tr. 31.
Claiborne’s most important omission concerned the sentencing trial. This forfeiture
began long before the sentencing trial did, with Claiborne’s basic misunderstanding of Eighth
Amendment law. Under that law, there are no crimes for which the death penalty must be
imposed. Instead our law requires, before the death penalty can be imposed, first, that the
jury find that an aggravating factor exists beyond a reasonable doubt, and second, that the
jury find, in light of the defendant’s particularized circumstances and history, that the defen-
dant deserves the death penalty. The existence of an aggravator does not dictate imposition
15
of the death penalty; it merely allows it. If the jury likely will find that an aggravator exists,
then the need is all.the greater to offer mitigating evidence to show that the defendant does
not deserve to die.
The opportunity to offer mitigating evidence during the penalty phase of a capital trial
is not a nicety of law provided to capital defendants by the good graces of the Common-
wealth. Rather, it is a constitutional imperative:
[T]he Eight and Fourteenth Amendments require that the sentencer, in all but
the rarest kind of capital case, not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or record and any of
the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death . . . Given that the imposition of death by public
authority is so profoundly different from all other penalties, we cannot avoid
the conclusion that an individualized decision is essential in capital cases. The
need for treating each defendant in a capital case with that degree of respect
due the uniqueness of the individual is far more important than in non-capital
cases . . . The non-availability of corrective or modifying mechanisms with
respect to an executed capital sentence underscores the need for individualized
consideration as a constitutional requirement in imposing the death sentence.
Lockett v. Ohio, 438 U.S. 586, 605, 606 (1978). ’
Thus, Joe Wise had a constitutional right - and Claiborne had a constitutional duty -
to present to the jury any and all relevant mitigating evidence tending to show that Joe
deserved a sentence less than death. That Claiborne failed to grasp this fundamental precept
of capital jurisprudence is truly astounding.
Claiborne believed that if the Commonwealth proved an aggravating factor, mitigating
evidence could not prevent the death penalty. Even four years after the trial, he persisted in
this belief, as he indicated in response to state habeas attorney Hawthorne’s question
concerning whether the presentence report contained any mitigating evidence:
16
Like I said, based on the law and you know the law in terms of
imposition of the death sentence and if you look at the argument of the
Commonwealth’s Attorney in the transcript also, the argument was arguing on
the wantonness and the vileness and the atrociousness of the crime. He was
using that standard for to seek the death sentence.
If the evidence proved that in the case, then it was sufficient for them
[the jury] to act for the death sentence. If you look at the facts that were
presented, the facts showed the wantonness of the killing. And that was the
basis for the imposition of the death sentence.
And all you have to do is show one, you don’t have to show both parts
of it.
Hab. Tr. 77. Claiborne repeated this theme elsewhere in his testimony, when he recounted a
conversation he had with Joe:
A And I told him [Joe] that the facts that were presented during the trial
were sufficient to uphold the death penalty against him.
Q [by Hawthorne] So, you were convinced the outcome was already pre- ~
determined?
A It was my feeling that the death sentence would be upheld. Now, that’s
one thing that I must state at this time in all honesty.
Q Did you feel that these mitigating circumstances were an opportunity to
avoid the imposition of the death sentence?
A Under the circumstances, no.
Hab. Tr. 74; see also Hab. Tr. 45-47. This is incorrect, of course, as Professors Geimer
and Bonnie and defense lawyer Cooley point out in their affidavits. Affidavit of William S.
Geimer, p. 4; Affidavit of Richard J. Bonnie, 15; Affidavit of Craig S. Cooley, 1 12(A).
As a consequence of his misunderstanding of the law, Claiborne did not pursue
mitigating evidence on Joe’s behalf. As explained above, he did not ask for an investigator
because he did not understand the uses for one with respect to sentencing. Hab. Tr. 24. He
17
failed to respond to psychiatrist Gwaltney’s requests for additional information. Hab. Tr.
34-41.
"[Claiborne] substituted his own non-expert opinion, and his client’s assuranc-
es that *] am not insane’ for expert opinion to decide to not seek psychiatric or
neurologic evaluation. That decision was made even though Mr. Wise had
been previously tested as borderline mentally retarded. Counsel failed to
prepare in any meaningful manner for a sentencing hearing. Although it is
clear substantial mitigating evidence was available (and presented in the
*presentence’ report provided to the judge), no evidence of mitigation was
developed by counsel or presented to the jury."
Affidavit of Craig S. Cooley, 11 12(B)-12(C). He failed, in short, to gather any mitigating
evidence whatever. Having gathered no evidence for a case in mitigation, Claiborne was in
no position to offer evidence at the sentencing trial, and he offered none. Hab. Tr. 67.
Claiborne followed up on his failure to offer evidence with an extraordinarily brief,
cryptic, and unenthusiastic argument, reprinted in its entirety on page 2. What is most
apparent about this summation is that no thought or preparation went into it. It is inordinate-
ly brief for an argument for a man’s life, it concentrates irrelevantly on guilt trial concerns,
and it refers to mitigating evidence that Claiborne had not bothered to develop. Claiborne
never even mentions Joe by name, holding him at arm’s length as "the defendant" and “this
man." The appalling lack of concern and coherence in this summation hardly suggests that
-Claiborne devoted much thought or care to it.
Probably the greatest deficiency of this argument is its lack of zeal:
It is no argument at all. It demonstrates not only a violation of the require-
ment for competent representation set out in Canon 6 [of the Code of Profes-
sional Responsibility], but also of the Canon 7 requirement of zealous advoca-
cy, and its concomitant duty of loyalty. Even an unprepared advocate who
had presented no evidence should have been able to present for the jury’s con-
sideration some reason not to sentence his client to death.
18
Affidavit of William S. Geimer, p. 6.
Joe effectively faced the sentencing jury alone. Professor Bonnie believes that
Claiborne’s abandonment of Joe at the sentencing trial represents a failure of the justice
system:
I am of the opinion that the criminal justice system in Virginia has failed to
afford Joe Louis Wise a fair opportunity to demonstrate that death is not an
appropriate sentence in this case. There was a complete default of represent-
ation on behalf of Joe Wise in relation to the sentencing phase of his trial. Of
all the capital cases that I have reviewed regarding counsel’s effectiveness, this
case reflects the least competent representation in relation to preparing for and
presenting a case in mitigation. Mr. Wise essentially had no representation at
and in connection with the sentencing phase of his trial.
Affidavit of Richard J. Bonnie, 13. Veteran capital defender Cooley has reviewed Joe’s
case and reached a similar conclusion about Claiborne’s dereliction of his duty. Affidavit of
Craig S. Cooley, 1 14.
At one point during the state habeas hearing, Claiborne offered the surprising opinion
that he "would have had to probably step out of the case if I concluded that [Joe] was
guilty." Hab. Tr. 42. This attitude is inappropriate for any criminal defense lawyer, but it
is particularly dangerous for a capital defender, who must redouble his efforts to save his
client following a finding of guilt, not "step out." At the sentencing trial following Joe’s
conviction, stepping out is just what Claiborne did.
19
6. State Habeas: The Big Default
Joe’s opportunity to challenge Claiborne’s effectiveness came first in state habeas
corpus. But Joe’s lawyers failed him in two ways during those proceedings. First, his state
habeas lawyers, who were themselves new to capital habeas, failed to offer evidence of the
prejudice Joe suffered from Claiborne’s ineffectiveness. Second, his lawyer neglected to file
Joe’s notice of appeal from the Circuit Court’s denial of relief. Not only did this default
eliminate appellate review of Joe’s habeas, it precluded federal review of virtually all of
Joe’s claims, including his claim that Claiborne gave him ineffective assistance.
Joe began his state habeas with volunteer counsel James Crawford from the Philadel-
phia law firm of Schnader, Harrison, Segal & Lewis. Philadelphia lawyers obviously could
not investigate Joe’s case except with great difficulty and at great expense, and Crawford
informed the Mecklenburg court of the difficulties he faced. The court declined to alleviate
Crawford’s difficulties by appointing an investigator. Order of Mecklenburg Circuit Court
entered October 7, 1986 (Tab 8). So when Murray v. Giarratano, 847 F. 2d 1118 (1988),
tuled that the Commonwealth must appoint lawyers for indigent condemned prisoners,
Crawford asked the Mecklenburg court to substitute local lawyers for the Philadelphia firm.
As the primary basis for his motion, Crawford declared that Joe would benefit from local
counsel who could efficiently and economically investigate Joe’s case. The court granted this
N
motion, and appointed Bruce Robinson and Robert Hawthorne as Joe’s state habeas lawyers.
Order of Mecklenburg Circuit Court, August 4, 1987 (Tab 9).
Joe’s best claim was that Claiborne had provided him ineffective assistance of
counsel, particularly at the sentencing trial. To prove this, Joe’s lawyers had to show both
20
that Claiborne’s performance was deficient and that Joe’s case suffered as a consequence of
Claiborne’s deficiency. With respect to the performance prong of this case, Joe’s lawyers
presented the testimony of Claiborne. They had never discussed the case with Claiborne
before they called him to the stand, according to Claiborne, and they presented no other
witnesses, such as expert capital defenders, to show that Claiborne’s performance was
deficient. Hab. Tr. passim. Nonetheless, though Judge McCormick found otherwise, Order
of Mecklenburg Circuit Court entered December 11, 1989 (Tab 10), Claiborne’s own
testimony established his obvious lack of understanding of capital law and capital defense.
This was only half the case, however. Joe’s lawyers presented no evidence whatever
to bolster the case that Claiborne’s derelictions had injured Joe’s case. Hab. Tr. passim.
This was no strategic decision; the record demonstrates that these lawyers, in the less than
sixty hours they dedicated to the case, see Invoices of Bruce Robinson and Robert Hawthorne
for Reimbursement of Attorney Fees (Tab 11), performed no investigation at all. They
simply defaulted on this half of the case. As we demonstrate in Section D, The Untried
Mitigation Case, there was plenty of evidence, readily available to anyone who cared to look,
to prove this half of the case. Compare Affidavit of Craig S. Cooley, 11 12-13. Despite
sinple clues to the existence of this evidence, Joe’s lawyers simply did not look.
Joe himself presented more evidence to the court on this point than his lawyers. Joe
propited and circulated to potential witnesses a document declaring the sifinesses? availability
to appear on Joe’s behalf. Declaration of Witnesses’ Availability, November 27, 1987 (Tab
12). Joe’s lawyers apparently were unmoved by the fact that his initiative outstripped their
own; they presented none of these witnesses at the habeas hearing. Hab. Tr. passim.
21
This failure by Robinson and Hawthorne did not necessarily foreclose the possibility
that Joe could obtain federal habeas relief for Claiborne’s shortcomings. It was Hesvteise's
next failure that slammed that door.
In order to present his ineffectiveness claims to the federal habeas court, Joe had to
preserve them against a procedural bar — a technicality that prevents a court from
considering many claims, no matter how meritorious — while passing through state habeas.
One necessity for preserving Joe’s claims was an appeal to the Virginia Supreme Court from
the Circuit Court’s denial of his state habeas. The first, mandatory step to appealing was the
simple filing of a notice of appeal in the Circuit Court within 30 days after that court issued
a decision. Rules of the Supreme Court of Virginia 5:9.
That turned out to be too much for Hawthorne, who missed the date, not by a day or
a week, but by 2% months. Notice of Appeal filed March 28, 1990 (Tab 13). After that,
no amount of lawyering could get Joe an appeal. Though his lawyers filed notices and
motions and briefs in the Circuit Court and the Virginia Supreme Court, the damage was
done and the damage was irreversible. See Index, Wise v. Rogers, Circuit Court of
Mecklenburg (Tab 14). Hawthorne had saddled Joe’s claims with an insuperable procedural
default. Joe could get no federal review of his federal constitutional claim that Claiborne
was ineffective. Opinion and Order of Judge Robert R. Merhige, Wise v. Williams, March
17, 1992 (Tab 15).
22
“ Joe’s Neglected Warnings About His Lawyers’ Deficiencies
‘What is particularly unfair about saddling Joe with the consequences of the default
committed by his state habeas lawyers is that not one of them occurred without Joe having
complained to the court in advance about the performance and dedication of his lawyers.
Each and every one of Joe’s warnings proved in some way to be true; each and every one of
them was ignored by the Circuit Court; and each and every deficiency that Joe raised was
later held against Joe by the courts,
Joe’s complaints about Robinson and Hawthorne began almost as soon as they were
appointed. On September 11, 1987, Joe wrote court clerk Coleman under the belief that
Coleman was the judge (his letter was forwarded to Judge McCormick) to advise that his
lawyers were not doing the job:
You appointed me two lawyers. But if they wont respond to my
letters and needs to see them or except calls from me to get the
material I have and need to discuss with them, then they are
doing me no good. Mr. Crawford asked for these lawyers so
they could investigate mitigating evidence and all that is needed
to be done but they do not respond to my letters nor except my
calls therefore they care not for my life or the case, they do not
have my best interest at heart and this I do not need.
Letter from Joe Wise to Eugene Coleman of September 11, 1987 (Tab 16). This letter was
filed on October 6, 1987. Judge McCormick did not appoint new lawyers, but he did order
that Joe be transported to Mecklenburg so Robinson and Hawthorne could see him.
Transportation Order entered October 9, 1987 (Tab 17).
Several months later, Joe dispatched another letter to the court clerk, again warning
that his attorneys were not properly representing him:
The two lawyers you have appointed to my case did not even
know what mitigating evidence was, and had to ask me to find it
for them, when the habeas [petition] and the cert. [petition] filed
[on direct appeal] pointed what it was all too clear, plus they
refuse to do the investigation needed just as Mr. Claiborne did
when he picked up my case, and neither one of them believes in
me and wont allow me to call them and I hardly ever see them
or know where my case is with them. So I ask that I be
appointed two lawyers who are interest in my life and my case
as well and someone who knows what they are doing.
Letter from Joe Wise to Eugene Coleman of December 6, 1987 (Tab 18). This request was
denied by the court and did not result in Joe’s habeas attorneys doing any extensive work on
the case. At the conclusion of the case, the two attorneys asked for reimbursement for an
amount of time clearly inadequate to properly investigate Joe’s case. Robinson had
"devoted" 33 hours to the case, including five hours in court, and Hawthorne had spent 25.5
hours, twelve of them in court. Invoices of Bruce Robinson and Robert Hawthorne for
Reimbursement of Attorney Fees. Neither asked to be reimbursed for costs associated with
collect calls from Joe, if in fact they accepted any. Invoices of Bruce Robinson and Robert
Hawthorne for Reimbursement of Attorney Fees. Neither asked to be reimbursed for any
costs associated with investigating Joe’s case in mitigation, Invoices of Bruce Robinson and
Robert Hawthorne for Reimbursement of Attorney Fees, and the record of the state habeas
proceeding confirms that no such investigation was undertaken. Hab. Tr. passim.
Joe’s charges that his lawyers did not know what mitigating evidence was and were
not investigating the case were right on the mark. Robinson and Hawthorne presented no
evidence to support their claim that Claiborne had failed Joe by presenting no mitigating
ze
evidence. Hab. Tr.. passim. Even so, Joe still could have looked forward to the possibility
of a hearing in federal court, except for the fact that Hawthorne neglected to note an
appeal.* Here, too, Joe had warned Judge McCormick of the danger and tried to protect his
interests.
Judge McCormick anniunced, his intent to dismiss Joe’s habeas petition in a letter to
all counsel and to Joe on August 4, 1988 (Tab 19). Believing that his case was concluded
and not trusting his lawyers to preserve his appeal, Joe wrote to the Virginia Supreme Court
on August 12, 1988, to inform them that he wanted to appeal and to ask them to appoint
lawyers for his appeal. Letter from Joe Wise to Virginia Supreme Court of August 12, 1988
(Tab 20). The Circuit Court had not formally ruled, however, so the Supreme Court took no
action in response to Joe’s letter.
About a year later, Judge McCormick formally denied Joe’s petition and entered an
order to that effect. Order of Mecklenburg Circuit Court entered December 11, 1989. That
order started the clock running on Joe’s time to note an appeal. Even though Joe had made
clear to all concerned his fervent desire to appeal, Hawthorne simply neglected to file the
required notice of appeal. Accordingly, Joe was not permitted to appeal the denial of his
state habeas to the Virginia Supreme Court, even though no one could contend that Joe
himself had done anything to deserve such a result. Order of Virginia Supreme Court of
September 24, 1990 (Tab 21). The denial of his appeal, however, was not the only
consequence of this failure.
‘Mr. Robinson was allowed to withdraw from the case when he took a position as an assistant prosecutor
for the county.
25
Hawthorne’s oversight had the disastrous effect of precluding federal review of Joe’s
meritorious ineffectiveness issues, and indeed of virtually any issue that could have been
raised on Joe’s behalf. The consequence of Hawthorne’s dereliction was that Judge Merhige
refused to consider the merits of Joe’s habeas petition. Accordingly, Joe never received
either state appellate or any federal review of the competency of his trial lawyer. Opinion
and Order of Judge Robert R. Merhige, Wise v. Williams.
This need not have happened. Joe had asked that attorneys be appointed who would
attend to his case and keep him informed about developments, but the court ignored Joe. As
Joe wrote Judge McCormick on July 30, 1991:
Sir you have really have done me an injustice. I had writen you
about lawyer Hawthorne and Warner and asked to remove them
from my case. But you denied me that request, as I told you
they never let me know what was going on. I asked that I be
able to get my own lawyers that would keep me up on appeals
and motions but you did not grant me that. Now these lawyers
defaulted my case... . I feel that if I had known I could have
got help to file the appeal myself, but I got nothing from them,
so now I wish to know why you denied me relief on new attor-
neys when I requested it.
Letter from Joe Wise to Judge McCormick of July 30, 1991 (Tab 22). In response, Judge
McCormick directed court clerk Coleman to send Joe a copy of the order in which Judge
McCormick reappointed Crawford as Joe’s lawyer. Letter from Eugene Coleman to Joe
Wise of September 3, 1991 (Tab 23). This order was cold comfort indeed; it had come far
too late to work any change in the disastrous consequences of Hawthorne’s failure to file the
notice of appeal.
All Joe could do to protect his legal interests from the dereliction of his lawyers was
to complain to the courts that appointed his lawyers. Joe did this. Had the Circuit Court
26
listened even once to Joe, the deficiencies in his representation might have been corrected.
But the court never did. Joe tried to fulfill his responsibility for his own case; in this effort
he turned out to be alone.
8. What Might Have Been: The Probability Of Federal Relief
Had Joe gotten to litigate, with competent counsel, his claims of ineffective assistance
of counsel in federal court, there is a great probability — more nearly a certainty — that he
would have received a new sentencing trial. The federal jurisprudence concerning ineffective
assistance of counsel is built on a bedrock constitutional principle — an accused’s absolute
right to be represented by counsel. The United States Supreme Court never has wavered
from this principle because lawyers in criminal cases "are necessities, not luxuries." Gideon
v. Wainwright, 372 U.S. 335, 344 (1963). The accused’s right to counsel is by far the most
important and pervasive of his rights, because it affects his ability to assert any other
constitutional or statutory rights he may have. Indeed, without counsel, the right to a trial
itself would be "of little avail." Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
Given its special value, it is not surprising that the constitutional right to counsel is
the right to the effective assistance of counsel, or in other words, a reasonably competent
attorney whose advice is within the range of competence demanded of attorneys in criminal
cases. McMann v. Richardson, 397 U.S. 759, 770 (1970). In fact, the text of the sixth
amendment itself suggests as much, requiring not merely the provision of counsel to the
accused, but "assistance . . . for his defense."
In Strickland v. Washington, 466 U.S. 668 (1984), the seminal ineffective assistance
of counsel case, the United States Supreme Court recognized that it is a fundamental duty of
27
counsel appointed to represent a capital defendant to conduct a Teasonable mitigation
investigation:
These standards require no special amplification in order to define counsel’s
duty to investigate, the duty at issue in this case. As the Court of Appeals
concluded, strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigations are teasonable precisely to
the extent that reasonable professional judgments support the limitation on
investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.
466 U.S. at 690-91.
Under the Strickland standard, a decision not to investigate mitigation for the penalty
phase of a capital trial nearly always is indefensible. Although counsel may make difficult
decisions not to present certain mitigation, these decisions must be informed ones — in other
words, counsel must petform a reasonable investigation before making an informed decision
Not to present mitigation. Because a decision not to present mitigation, made without
reasonable investigation, is not a strategic decision or trial tactic, dozens of state and federal
courts have reversed death sentences when counsel for a capital defendant forfeited the
penalty phase of a capital trial, as Claiborne did in Joe’s case. Claiborne’s performance
rivals the worst performance by defense counsel in any of these cases.
Appended to this petition is a summary of 26 state and federal cases in which courts
have reversed death sentences because counsel failed to properly investigate and present the
28
mitigation available on behalf of a capital defendant. Summary of Successful Habeas Cases
(Tab 24). These cases have in common some or all of the following critical factors:
Trial counsel was inexperienced in capital defense;
Trial counsel overemphasized the guilt trial;
Trial counsel labored under a fundamental misunderstanding of
capital jurisprudence;
Trial counsel failed to investigate and present mitigation; and
Post-conviction counse] developed and presented mitigation on
behalf of the capital defendant.
ype
ne
Each of the first four factors is true of Claiborne. Though Joe’s case fell within a familiar
pattern for successful habeas petitions on the basis of the first four factors, the last factor is
decidedly untrue of Robinson and Hawthorne.
For example, in Lloyd v. Whitley, 977 F.2d 149 (Sth Cir. 1992), cert. denied, __
U.S. __, 113 S.Ct. 2343 (1993), the Fifth Circuit found that an attorney’s failure to pursue
independent psychiatric examination of a capital defendant was based on a misunderstanding
of the law and amounted to ineffective assistance of counsel. Jd. at 158-59. The court stated
that:
[w]hether counsel’s omission served a strategic purpose is a pivotal point in
Strickland and its progeny. (footnote omitted) The crucial distinction between
strategic judgement calls and plain omissions is echoed in the judgments of this
_court. (footnote omitted)
Id. at 158. Lloyd’s attorneys had the benefit of some investigation that indicated that Lloyd
had mental problems, but they failed to pursue it. Jd. at 151-52. The court found "that the
decision of defense counsel not to pursue an independent psychological analysis of Lloyd was
neither a strategic choice made after investigation nor a strategic choice made in light of
limits on investigation." Jd. at 158. "[Counsel’s] decision had nothing to do with
29
Strategy . . . [and was] not [ ] made after thorough investigation of the law; [counsel] was
unaware of the law." (foomote omitted) Jd.
In People v. Perez, 592 N.E.2d 984 (Ill. 1992), cert. denied, ___ U.S. ___, 113 S.Ct.
608 (1992), the Illinois Supreme Court found that Perez’s trial counsel was ineffective and
teversed his sentence of death. Perez’s trial counsel did little, if any, investigation to present
mitigating evidence on behalf of Perez at the sentencing hearing. The attorney testified that
he had two interviews with the Perez before trial. Id. at 986. At both interviews Perez
refused to cooperate with his attorney. Id. The attorney testified that he initially knew
nothing about Perez’s family, except that they had lived somewhere in Chicago. Id. In the
week between the guilt and sentencing phases of the trial, Perez gave his attorney some
information on his background and family, including that his family had moved away without
telling him when he was out one day. Id. The attorney called some telephone numbers
Perez gave him, but obtained no useful information. Jd. 986-87. He never went to visit the
places identified by Perez, nor did he send his investigator. Id. at 987.
Unlike Claiborne, Perez’s attorney had secured his school records, which contained
information about his childhood and family and included scholastic aptitude reports that
indicated Perez’s full scale IQ fell into the "mentally deficient" range. Id. The attorney did
not introduce this evidence at the sentencing hearing, though he could not recall why he had
not introduced it. Id. Despite evidence of mental deficits, the attorney did not attempt to
have any mental health experts appointed. Id. at 989.
At the post-conviction evidentiary hearing, Perez’s post-conviction attorneys presented
extensive evidence regarding his family background. This included evidence that the father
30
was an active drug dealer, alcoholic, and abusive to his children, who lived in fear of him
every day. Jd. at 989. He whipped the children with electrical cords. Like Joe Wise, Perez
. and his siblings were terrorized by their criminal father. Id.at 9g8-g9,
Faced with this evidence, the Illinois Supreme Court held that Perez’s trial counsel
was ineffective because of his failure to perform any investigation or present evidence he had
at the sentencing hearing. The court specifically found that it was trial counsel’s "lack of
diligence, rather than any drawback or strategy, which prevented him from introducing
important mitigating evidence" and that a failure to investigate Perez’s mental history or
background precluded any determination that the failure to present such evidence was a
strategic decision. Id. at 993-95. The court further found that the failure of the trial counsel
to present such evidence denied Perez a fair sentencing hearing and the court vacated the
sentence and remanded for a new sentencing hearing. Id. at 996-97.
In Louisiana v. Sullivan, 596 So.2d 177 (La. 1992), judgment affirming conviction
rev’d., Sullivan v. Louisiana, ___ U.S. __, 113 S.Ct. 2078 (1993), the Supreme Court of
Louisiana determined that Sullivan was provided ineffective assistance at the sentencing phase
of his capital murder trial because his counsel completely failed to perform any investigation
of mitigating evidence. Jd. at 190-91. Sullivan’s trial counsel admitted that he had done no
investigation into mitigating evidence because he did not believe the jury would return a
capital murder conviction. Jd. The Louisiana Supreme Court concluded that, absent a
complete investigation, there could be no tactical reason not to put on mitigating evidence.
Id. at 191. The court further concluded that a reasonable investigation would have
uncovered mitigating evidence. ‘For example, trial counsel could have presented evidence
31
that Sullivan was raised in an abusive, alcoholic, often brutal environment and that petitioner
was mentally ill. Id. The trial court found that this evidence was sufficient to undermine
confidence in the outcome of the sentencing phase and remanded the case for a new
sentencing hearing. Id. at 192. See also-Mak v, Blodgett, 970 F. 2d 614 (9th Cir. 1992),
cert. denied 112 S. Ct. 2282 (1993) (new sentencing trial granted in case of defendant,
Tepresented by two lawyers with three and four years of experience, convicted of killing
thirteen persons; without any tactical reason, counsel failed to develop or present evidence,
including background, family relationships, or cultural location, to humanize defendant); In
re Marquez, 822 P.2d 435 (Ca. 1992) (trial counsel’s total lack of investigation for mitigating
evidence found to be ineffective and prejudicial to the outcome of the sentencing hearing
where the only evidence presented in the post-conviction proceedings related to the good
qualities possessed by the defendant).
_ As in these cases, Claiborne’s failure to present the wealth of mitigation available for
his defense of Joe Wise did not result from a tactical decision. To the contrary, Claiborne
was ignorant of this evidence, because he misunderstood the law and failed to perform even a
minimal investigation into Joe’s background. This cannot be defended as trial strategy.
Moreover, the prejudice to Joe is manifest — the trial court and jury knew about Joe Wise
only what the prosecution had told them. We know now that there was much more to Joe’s
story. Claiborne’s ineffectiveness cost Joe his constitutional right to individualized capital
sentencing — in other words, Joe was deprived of his right to have an informed jury decide,
after getting to know Joe, whether he should live or die.
32
Faced with the disturbing facts of this case, the Probability that the federal courts
would have required a reliable sentencing trial for Joe is high, Though federal courts on
occasion affirm decisions of counsel, after reasonable investigation, is forego presentation of
mitigation, they Toutinely censure "decisions" by counsel not to prepare at all for the penalty
phase of a capital trial. Joe accordingly may pay a very high Price for his habeas counsel’s
failure to file a notice of appeal — he may pay with his life.
D. THE UNTRIED MITIGATION CASE
Claiborne need not have forced the jury to decide Joe’s fate in ignorance of his life.
Evidence of Joe’s deprived childhood and depraved family background, all of it readily
available to Claiborne and Joe’s state habeas lawyers, is exactly the sort of evidence on
which juries routinely base verdicts for life imprisonment. See Letter of Professor Scott E.
Sundby of August 27, 1993 (Tab 25). Unfortunately, Joe’s trial lawyer offered none of it to
the jury.
1. Generational Abuse
Little is known about Joe’s father Ray Boose’s childhood, but Joe’s mother Alma
Wise Johnson suffered through a home life very similar to the one she eventually would
provide for Joe. Alma was one of 12 children, although three of her siblings died as infants.
Her parents worked as sharecroppers on tobacco farms, and she described them as "pure
alcoholics" who would get drunk in town every weekend and start fighting with others. Her
father often told her she was not his child, and he "whipped me all of my life with extension
_ cords, belts and switches that were twined together three at a time." Statement of Alma W.
Johnson, p. 1 (Tab 26). When she was nine years old her father pushed her through a glass
33
window because she had eaten some beans without asking. She was cut, but she was not
allowed to see a doctor. When she was ten years old, she got angry with her father after he
punished her and grabbed his shotgun, planning to kill him. He knocked the gun out of her
hand and it fired, knocking her backward; she says he laughed and whipped her with an
extension cord until the color of her skin could not be discerned beneath the blood. Alma
says her brothers treated her as badly as her father did. She describes an incident where her
brothers hit her in the head with a rock and knocked her out, and then her father blamed her
for the incident and beat her. Jd., pp. 1-2.
When Alma was older, she was riding in a convertible with her parents and they got
into an argument. She told her father to stop the car and stood up, thinking he would stop.
Instead he pushed her, Alma says, and she fell out and was knocked unconscious. She was
taken to the hospital and her father had her committed to a psychiatric hospital, where she
was told she was being treated for alcoholism. Id. p. 2.
Alma’s sister Hilda Ann Dunn describes how her father mistreated Alma by swearing
at her, beating her, and kicking her out of the home when she was pregnant. According to
Ann, Alma argued often with her brothers and sisters and was the "black sheep" of the
family. She and her sister Doza Dunston both described the car incident, but said Alma was
trying to commit suicide. Statement of Hilda Ann Dunn, p. 1 (Tab 27); Statement of Doza
Dunston, p. 1 (Tab 28).
Alina’s mother, Alma Williams, said that Alma’s father hated her and told her when
she was nine "that was one I should have thrown away, when I got you." He would often
disappear for days or weeks at a time, and Mrs. Williams said her husband "wanted every
34
woman that wore a skirt except me." He left when she told him she was pregnant with their
last child and didn’t come back until the baby was three weeks old.. Statement of ‘Atha.
Williams, p. 1 (tab 29). Whenever her husband returned from one of his alcoholic binges,
he would "knock the hell out of" his wife. Statement of Hilda Ann Dunn, p. 1.
When fifteen-year-old Alma became pregnant with Ray Boose’s child, her father
kicked her out of the house. She returned home frequently to escape Boose’s violent assaults
on her, but her family offered no protection against Boose. On one occasion Boose shot into
Alma’s family’s house in an attempt to force Alma to come back home. Alma’s father was
angry because Boose missed Alma and nearly shot her sister. Jd.
2. Poverty And Education
Joe came from an almost inconceivably impoverished family. .When Joe was born,
his father Boose was running from the police for a murder he had committed. Because he
was always on the lam, Boose kept his family in rural shacks and woodland cabins.. These
seldom had indoor plumbing, so the family used latrines when they did not use the woods
themselves. Statement of Alma W. Johnson, p. 2. After five years, Alma tired of the
fugitive life and she turned Boose in to the authorities. Statement of Doza Dunston, p. 1.
When Joe was twelve, his family finally made the upward move into the Massey
public housing project. Joe’s life in public housing represented the longest sustained period
in his life when he had the fay of an indoor toilet. Public assistance supported the family,
but sometimes that still left them without resources for necessities. For example, Joe entered
the Wake Forest-Rolesville Middle School, after the family moved in to the Massey projects
Joe was sent home from school the first day because he had no shoes. Social service notes
35
from that time indicate that the social worker helped Alma obtain shoes and clothing, which
allowed Joe to return to school. Social History For Joe Louis Wise (Tab 30), Exhibit G.
The worker also noted that Alma needed mental health services for emotional problems that
were affecting her children’s behavior. Jd. p. 13. It was at this time that Joe began to act
out in school, engaging in fights that resulted in his suspension.
Joe attended first and second grade at DuBois Elementary School (an all-black
school), where he was held back in the first grade. He went to Rolesville Elementary School
for grades three through six. His grades were average to below-average, which probably
reflected the fact that during this time Joe’s family was subsisting on welfare and living in a
series of run-down homes, as well as the limitations on Joe’s intellectual capabilities. His
mother, who was frequently depressed, drank heavily throughout this period and physically
abused the children. Social History for Joe Louis Wise, p. 12.
A social worker assigned to their case documented the condition of their various
homes. One had beer cans and whiskey bottles thrown about the yard; another was unheat-
ed, causing Alma to take her children elsewhere during the day to keep them watm. A third
house was so dilapidated that the social worker had trouble getting onto the porch because of
the broken steps; yet another house could be reached only by crossing a creek, and the path
leading to the house was impassable in bad weather. Id. pp. 9-12.
Jim Peebles, the assistant principal of Wake Forest-Rolesville Middle School,
remembers Joe as a boy who had a lot of potential but whose background "hung around his
neck like a ball and chain." He attributes some of Joe’s difficulties to his life in the public
housing projects, which "did not provide a positive environment for him." Peebles visited
36
with Joe and his mother at the housing project, but his impression was that Alma would
agree with anything he said in order to get him "off of her back" and that she failed to
follow through on his suggestions regarding Joe. Peebles also teceived information that
Alma was prostituting at their apartment. Teachers reported to him that Joe was sleeping in
class. When Peebles questioned him, Joe reluctantly told Peebles that Alma had locked her
children out of the house the previous night so she could entertain "guests." Statement of
James Peebles, pp. 1-3 (Tab 31).
Peebles stated that as a result of the lack of supervision in the home, Joe was allowed
to stay out as late as midnight and fell in with the "harder elements" of the housing projects,
a group of older boys with whom Joe engaged in shoplifting. Joe’s school attendance
dropped significantly during these years; his school records show no more than two absences
in each of his elementary school years, but over thirty absences each year during middle
school. Despite Joe’s troubles during this time, Peebles had this to say about Joe:
Joe was a special kid to me. I felt that I could not do all I could for Joe. I
saw his potential but I was not able to get through. I did not succeed with Joe
and I really wanted to. Although I am not surprised, I was very disappointed
when I heard about his trouble. I felt good about Joe but he was unable to
overcome the peer pressure and his background. I wish I had accomplished
more with him and I am disappointed that I did not.
I know that when Joe was 13, 14 and 15 years old, he came from a disadvan-
taged situation. He was not raised or cared for in any manner approaching
what could even distantly resemble the best of circumstances. I believe Joe
would have been successful had he just had a few more good turns in his life.
But those positive turns were too few and too far between for Joe. Joe has a
special place in my memory. He is a good person. I saw his potential and
felt Joe was just on the verge of making the turn and had hoped the best for
him. Yet it became obvious to me that over the three years that I knew Joe,
the extent to which his background hung around his neck like a ball and chain
37
certainly exceeded my best efforts to give Joe a positive outlook and hope for
the future. I will always remember Joe because J felt g00d about him and
because he was a young man that I wanted so much to succeed.
Id.
When Joe was 13 years old, he ran away from his mother’s home and was placed in a
detention center. Social worker Linda Banks Dillard recalls the frustration she felt while
working with the family:
I remember Alma Johnson as being overwhelmed emotionally most of the
time, somewhat hysterical and immature. She had a difficult time coping and
blamed Joe for her problems. Joe reported to me that his mother often lost
control and cried, which was upsetting to him, and that she singled him out
among his brothers as the ’bad guy.’
Joe was a lost child with very little self-awareness. I was frustrated that I was
not effective in helping Joe resolve his inner turmoil. I saw his potential for
good but there was some underlying force moving him that I could not put my
finger on. At one point I wanted to try removing Joe from his home and
placing him in foster care or with his maternal aunt because he was so
conflicted living with his mother.
Statement of Linda Banks Dillard, pp. 1-2 (Tab 32).
A major source of conflict between Joe and his mother was Joe’s desire to live with
his father. Dillard noted in a report to the court considering Alma’s runaway petition against
Joe that Joe needed a relationship with his father, to which Alma was opposed, and that as a
result Joe was resentful of and uncooperative toward his mother. She also indicated that
there was a great deal of hostility between Alma and Boose, and that Alma showed "little
understanding of Joe’s feelings for his father." Social History for Joe Louis Wise, pp. 14-
15.
As a result of Joe’s problems in school, including an incident when he was caught
carrying a knife, he was admitted at age 14 to Haven House, a halfway house for juveniles.
38
While living at Haven House Joe was permanently expelled from Daniels Junior High
School. Joe was sent next to Samarkand Manor, a training school, where he spent several
months before being conditionally released. Two months later Joe was expelled from
Rolesville Middle School because of fighting. Id. p. 19. At the age when Joe was most in
need of stability and obviously in need of attention and help, he was shuffled from home to
home and from school to school. Joe’s behavior resulted in his being labeled a problem, but
as Hans Selvog points out in his Social History of Joe, "Behavioral indicators of abuse
frequently emerge or intensify as children approach adolescence." Jd. p- 21.
3. Borderline Mental Retardation
Joe’s intellectual capabilities have been tested numerous times in ‘his life, and he has
always tested as borderline mentally retarded. In June of 1978, Joe was evaluated at the
Western Correctional Center for a presentence diagnostic study by order of the Wake County
Superior Court. Psychological testing revealed that Joe was functioning intellectually in the
borderline mentally retarded range, with a WISC-R IQ score of 79. Id. pp. 18-19. The
examining psychologist "suggested that Joe’s intellectual potential may well be within the low
average range, but social deprivation, learning disability, and emotional problems combine to
interfere with Joe’s ability to realize his full potentials." The psychologist observed:
Joe’s relationship with his mother is quite dysfunctional. Joe related to his
mother both as son and protector. He has learned to manipulate her [through]
temper tantrums, physical threats, and threats of self-injurious behavior,
thereby avoiding her overly harsh discipline, coping with her inconsistent and
confusing manner of showing him affection, and generally getting his own
way. His attempts to manipulate others in the same manner have been not
only ineffective but have resulted in his getting into various kinds of trouble
and becoming increasingly anxious and frustrated.
Id. p. 19.
39
More recently, Joe was evaluated by Dr. James B. Wade, a clinical neuropsychologist
at Medical College of Virginia. After extensive testing, over twelye hours spent with Joe,
and review of voluminous records documenting his life, Dr. Wade concluded that Joe is
indeed borderline mentally retarded, and that this condition had a negative impact on Joe’s
social development:
Clearly, this patient was taught quite early in life that the world is a hostile,
dangerous place. His parents frequently tortured him with physical and mental
abuse. His father offered him attention and praise only when he followed his
commands (which often meant rebelling against societal norms). Joe learned
as a child that he could not rely on others to meet his needs for security and
love. Unfortunately, due to cognitive limitations (Borderline Mental Retarda-
tion), and destructive parenting, he developed a "chip on his shoulder" attitude
in order to protect himself from hurt and rejection. He also learned to
manipulate others to satisfy his needs. With his father’s encouragement, he
began abusing recreational drugs (e.g. alcohol). Alcohol intoxication
contributed to behavioral acting out by further reducing his brain’s ability to
inhibit asocial behavior. The specific events taking place the day of the
homicide are unknown. Nevertheless, based on the social development data
presented in this report, aggressive retaliation when threat is perceived is a
clear norm taught to him by his family.
Report of James B. Wade, Ph.D, p. 5 (Tab 39).
4. Joe’s Violent And Abusive Upbringing
Joe’s primary role model was his father, Massey Ray Boose. Described as an
"exploitative, nefarious, criminal figure," and "Charles Manson-like," Boose made his living
from selling drugs, alcohol, and stolen property, and running a prostitution ring. He and
Joe’s mother moved frequently when their children were young, because Boose was "on the
run" from the police for a murder he had committed. At the time that Joe’s older brother
Thomas was born, the family was living in an abandoned car. Joe’s mother Alma was 15
years old at the time; Boose was 18. When Joe was born, they lived in a house without
40
electricity or plumbing. Frequently they hid in shacks in the a and slept on straw
mattresses. Statement of Alma W. Johnson, p. 2.
Boose treated his children "like they were nothing," and he was extremely violent
with Alma and the children. He beat Alma while she was Pregnant with Joe, and he
terrorized his children when he was with them. For example, Boose had a special method of
punishment for Joe’s younger brother Donnell; he would throw the baby up to the ceiling and
let him fall onto a bed, where Donnell would lie screaming. Statement of ee W. Johnson,
p. 3.
When Joe was two years old, he was crying one day and wanted his father to pick
him up. Boose’s response was to grab Joe and put him behind a stove. Joe’s face blistered
from the heat, but Boose refused to let Alma take Joe to a doctor. When Joe was four,
Boose held him by the foot and beat his head on the floor. Statement of Hilda Ann Dunn, p.
3. Another time when Thomas and Joe were caught playing in the family’s water barrel,
Boose beat and stabbed Thomas with a stick, then beat Joe. Statement of Thomas Ray Wise,
p. 1 (Tab 33). Alma says that Joe was so frightened of his father when he had done
something wrong that he would wet himself when Boose came into the room. Statement of
Alma W. Johnson, p. 3.
Alma tried many times to leave Boose, but he always found her and forced her, at
gunpoint, to return. On one occasion he tied her to a bed, threatening to kill her for leaving
him, and shot into the wall over hee head nine times. He also brought his other girlfriends
into their home. Joe and Thomas once walked into a room where Boose was in bed with his
41
Thomas caught
girlfriend. Boose sent them out with a lit rag in kerosene to use as a]; amp;
fire and. was badly burned, requiring a skin graft. Statement of Alma W. Johnson, p. 3.
Boose’s usual-method of controlling those around him was to threaten them with guns
or other violence. Thomas says that Boose always carried guns, sometimes two or three at a
time, and that Boose would shoot at him for talking back. Boose shot Thomas in the leg
with a handgun when he was four, and shot him with a rifle when he was 17, later picking
out the bullet himself because he wouldn’t allow Thomas to go to a doctor. Boose also used
violence as a teaching tool for his children; he once made them watch him shoot a man who
had stolen from him, then told his children the same would happen to them if they disobeyed
him. Statement of Thomas Ray Wise, pp. 1-2.
According to Thomas, Joe was treated worse than the rest of his siblings, and Boose
and Alma would often beat Joe for no reason. Statement of Thomas Ray Wise, p. 2. Joe’s
aunt, Hilda Ann Dunn, also says that Joe received worse treatment than his brothers, and
that Alma frequently hit him in the head. Statement of Hilda Ann Dunn, p. 1. Joe’s
brothers also beat him and encouraged their friends to beat him, and they called him "that
half white boy" and "redhead." Statement of Thomas Ray Wise, p. 2; Statement of Hilda
Ann Dunn, p. 2. Thomas describes Joe as "the child that nobody wanted," and says he is
surprised Joe never committed suicide. Joe’s only hope for getting attention or praise from
his father was to emulate his father’s behavior. Boose actively encouraged Joe to behave
violently; he once gave Joe a gun and told him to shoot his brother Thomas. When Joe
refused, Boose beat him. Statement of Thomas Ray Wise, p. 2.
42
Eventually Alma helped the police find Boose, and he Went to prison for murder.
After Boose was locked up, Alma continued to beat her children, often with switches and:
electrical cords, the same weapons Alma’s father had used on her as a child. She was unable
to feed her children and often begged food from the neighbors until she found out how to get
welfare. They moved frequently, living in houses that were infested with snakes or that did
not have plumbing and electricity. Statement of Alma W. Johnson, pp. 3-4.
During this time Alma had a parade of lovers who often physically abused her,
sometimes in front of her children. Alma was married to Joe Johnson, an alcoholic, for two
years, and Thomas recalls that they fought often and that once Alma knocked Johnson out.
Statement of Thomas Ray Wise, p. 1. Alma also told a social worker that Johnson abused
Joe and the other children by assaulting and kicking them. Alma suffered from depression
and twice attempted suicide, resulting in psychiatric hospitalization. She also suffered
nervous breakdowns for which she blamed Joe, and she threatened to put him into foster
homes.
Boose resumed his corrupting influence on Joe after his release from prison. He
taught Joe how to gamble, and Joe would stop to gamble between school and home. Thomas
says Joe wanted to make fast money, like his father. When Joe was 12, he and Thomas
spent some time in South Carolina with Boose, where they worked in the fields picking
cucumbers. Thomas left when Boose refused to pay them and treated them badly, but Joe
stayed longer. Boose, who was selling drugs and running a prostitution ring, introduced Joe
to drugs and had Joe sleep with the prostitutes, who were as young as 14. Boose controlled
the women in his usual manner: he beat them regularly, even when they were pregnant, and
43
ran over one of them with a car. He controlled the Money they eame d, and forced them to
take drugs, which he supplied to them as long as they obeyed him. He threatened to Kill
them if they did not do what he demanded. Statement of Thomas Ray Wise, 2.
Joe’s half-sister, Diane Boose, described how Boose forced her to work in the tobacco
fields starting at the age of five. She was whipped if she failed to wake up at 3:00 a.m., and
during busy periods she worked until 8:00 p.m. Boose fathered around 30 children, and he
forced all of them to work in the fields and to steal property, which he would resell.
Everyone was afraid of Boose; Diane says when Boose beat her in front of the other
workers, no one comforted her because they were all scared of him. Statement of Diane M.
Boose, p. 2 (Tab 34).
Boose beat Diane regularly, and she describes the type of punishment he would
inflict:
If we looked or said anything wrong, made a loud noise or talked out of turn,
we were hit with a fan belt or switch. Sometimes we were forced to stand in
one place in the woods all night long. We were afraid of the woods because
my father always said that men were killed in those woods. If we weren’t
doing what we were suppose[d] to we would be forced to pick up rocks, 15
buckets full, and place them in piles. We were punished by forcing us to chop
grass by pulling it by hand or using a hoe. Other times, we were made to dig
ditches all day long. Often times he would strip us before he whipped us.
Statement of Diane M. Boose, pp. 1-2.
Diane now refuses to have contact with her mother, because her mother still lives
with Boose. She and Joe’s grandmother both state that Boose took "credit" for murdering
Ricketson; Diane says he did it "to inflate his violent and criminal reputation in order to
intimidate people he was trying to control." Statement of Diane M. Boose, p. 2.
According to Alma, after Joe lived with his father, he began to act "like he had a
mental problem." He would act as though he didn’t understand what people were telling
- him, and he talked to himself or laughed for no reason, A social worker took him to a
psychiatrist, but Alma never received a report about any treatment Joe received, Statement
of Alma W. Johnson, p. 4.
Joe’s traumatic childhood included witnessing a aaiinte!” When Joe was eleven years
old, he was at a neighbor’s house when two brothers started arguing. Gis shot the other and
killed him. Joe ran home to tell his mother, and for months afterward he had nightmares
and would wake up and call out in the night. Statement of Alma W. Johnson, p. 4. Joe has
repressed his memory of the killing.
5. The Mitigating Force Of Joe’s Awful Upbringing
The jury that sentenced Joe to death knew none of these facts. Claiborne’s decisions
preventing the jury from achieving a better understanding of who and what shaped Joe into
the person he was. No juror could have heard these descriptions of Joe’s home life without
realizing that Joe was trained to accept violence as a way of life.’ His father taught him that
people can and should be controlled through violence, and that violence, together with sex,
drugs, and thievery, is an acceptable way to make a living. Joe was taught to do unto others
as his family did unto him. Joe Jearned that he could gain acceptance from his father only
by acting like him.
In summary, Joe’s “early childhood is marked by abandonment, neglect and rejection
. . . punctuated with hunger, fear of parents’ abuse, transience and an unpredictable
environment." Social History for Joe Louis Wise, p. 20. The facts were horrible and
45
horrifying. Their mitigating force would have been Powerful, as Professor Scott Sundby
explains: ©
Could an even minimally competent presentation of Mr. Wise’s
childhood have made a difference? I strongly believe so. As a professor at
University of California - Hastings College of the Law, ] participated in a
National Science Foundation funded study of why jurors impose the death
penalty. The portion of the study which I conducted involved interviewing
over 130 jurors who had served on 36 cases; in half the cases the jury had
chosen life imprisonment and in half they imposed death. The interviews were
exhaustive, lasting between 3-5 hours on average.
What I found regarding mitigating evidence was that jurors-look closely
to see whether somewhere along the line the defendant had an opportunity to
choose a law abiding path. If such an opportunity existed, hardships, such as
poverty or an alcoholic parent, would not sway the jury to life, because the
jury would believe that, despite the hardships, the defendant could have chosen
the high road. If, however, the jury felt that the defendant faced severe
hardships and never was given the support and opportunity that would have
enabled him to overcome his disadvantages, they would choose life over death.
Without a doubt, severe abuse as a child by family members was the
archetypal example of where juries would find that the primary support system
a child depends upon — his parents and siblings — had so failed the defendant
that they would not find death justified. They would not, of course, find that
the hardships excused the murder, but simply that death was too great a
punishment to impose upon someone who never had the chance to lead a
normal life and abide by societal norms.
Do Joe Wise’s circumstances fit this latter scenario? All a minimally
competent attorney had to do was paint a cursory picture of Joe’s childhood to
impress upon the jury how he never had the opportunity to choose the high
road — a father who physically tortured him when he was as young as two
years of age; a father who openly abused his siblings and tried to get Joe to
participate; a father who ran a prostitution ring out of the home; a father who
introduced his own son to drugg at age 12; a father who openly abused Joe’s
mother; a father who gave positive reinforcement only when Joe did his anti-
social bidding. What of the other possible source of guidance and comfort,
Joe’s mother? A product of a horrible family situation herself, she physically
abused Joe and threatened to place him in foster homes; she was mentally
unstable and tried to commit suicide several times; she taught Joe morals by
bringing a parade of lovers through the house. Might Joe have found
understanding in a brother or sister? Joe’s siblings openly admit that they
would physically abuse Joe as a child and make him feel like an outcast. It
46
would not take a silver-tongued orator to make a
~ never had a fighting chance to become a productive
had « mem i
that imposing the death penalty would serve no valiq re :
jury understand that Joe
Letter of Professor: Scott E. Sundby of August 27, 1993, Neither silver-tongued orator, nor
for the purposes of capital defense, minimally competent attorney, Claiborne neglected to
present any of these facts to the jury, thus surrendering Joe’s chance for a life sentence.
E. REHABILITATION AND REMORSE
Whatever Joe’s family and background may have done to him, Joe has not accepted,
even on death row, that he cannot change and rise above his background and upbringing.
Death row provides few, if any, opportunities for tehabilitation; certainly the prison does not
devote its efforts to rehabilitating those sentenced to die. Despite those circumstances, Joe
has managed to make himself valuable to the many friends he has made in the last eight
years.
Dave Herbertson has known Joe for eight years and personally experienced the
Positive effect Joe has had on people. Dave states that Joe has performed many valuable
services for him:
After I started visiting Joe, I began a ministry at the juvenile detention
center in Chesterfield County. I asked Joe to write letters to the kids at the
center to help get them back on the right track. Joe readily agreed, and he
wrote many letters to the kids I told him about. I found from these letters and
from other efforts by Joe that he had a talent for counseling, and I believe that
Joe was a valuable asset in this ministry.
When I left Virginia for Florida, Cruz Soto took over the ministry at
the detention center. I had introduced Cruz to Joe, and Joe continued to assist
Cruz however he could after I left.
Just because I had left Virginia did not mean that Joe could not
continue to help me. I taught a junior high-level Sunday School class in
Florida, and Joe wrote to my students in that class just as he had with the
47
. combined with his talent for counseling people
detention center. Joe had devoted considerable sty,
dy ‘to the Bible, ‘and this,
» Made his letters both informed
and effective.
My nephew and my brother-in-law both exper, a
drug and alcohol problems. When Joe found this out, ie Gee ee hen
to try to help them get over their problems. My brother-in-law Steve Clark
said to me, one time after receiving Joe’s letter, that he was very moved and
impressed that someone facing the fate that Joe was facing and living in the
conditions in which Joe was living could muster such concern for Steve. Both
of them are doing better now, and while Joe is no miracle worker, I do give
him some credit for their improvement. :
I remember another time when Joe’s friend Sister Maria Castillo was
depressed and wondering whether she was doing any meaningful work. Joe
did all he could to help her overcome her depression and reassure her that God
would find a way to use her. I know that Sister Maria benefitted from Joe’s
efforts.
I do not remember any occasion when I asked Joe for help that he did
not provide it.
Affidavit of David Herbertson, 1 3-8 (Tab 35).
lives:
Joe’s friend Rich Hutchinson states that Joe is a positive force in his and his family’s
I believe that what Joe is doing in prison right now is worthwhile. I know, for
example, that Joe has been very helpful to me because of his upbeat attitude
and positive approach. “Whenever I am depressed about something in my life,
I think of Joe and of how he is approaching his difficult situation, and I feel
better. This is a gift from Joe that I have been able to share with many
people.
Affidavit of Rich Hutchinson, 1 5 (Tab 36). This theme is echoed by Dave Herbertson:
In the time I have known him, Joe has helped me more than I have helped
him. Joe does his best to stay positive and upbeat, despite the difficult
circumstances in which he lives and the fate hanging over him. He is always
encouraging his friends and lifting their spirits. For the eight years that I have
48
known Joe, I have been able to compare all the
7 ae Problems I ii
life to the problems Joe faces and the positive way jn which We setae ts
situation. Joe’s positive encouragement and approach always uplifts me
Affidavit of Dave Herbertson, { 11.
Joe has been a comfort to his friends in their most difficult moments. According to
Rich Hutchinson, Joe was able to help him and his ex-wife improve their relationship, to the
benefit of their son:
When my wife and I separated in Arkansas, for a long time, she did
not want to speak with me. Joe and I discussed the difficulties I was having.
Because both of us were friends with Joe, he was in a position, and he made
many efforts, to bridge the gap between my wife and me. Even after our
divorce was final, Joe did not quit. On our wedding anniversary, Joe sent
Sally a poem that expressed my feelings about Sally that I had discussed with
Joe. There is no question but that this act by Joe helped to alleviate the bad
feelings that had come between Sally and me. The resulting improvement in
our relationship helps in dealing with our kids, and for that I thank Joe.
Affidavit of Rich Hutchinson, {1 6.
Similarly, Joe provided solace to his friend Ben Peacock when he was dying of cancer
and to Ben’s daughter Elizabeth after Ben died, as Ben’s widow relates:
Ben died of cancer two years ago this October. Once Ben became sick,
we were not able to visit Joe. Joe concealed his disappointment that we could
not visit him as we used to, and he threw himself into doing all that he could
to help Ben and us through Ben’s terminal illness. When Ben was confined to
bed at home for three weeks toward the end, Joe called Ben at home all the
time, talking to him for hours and keeping his spirits up. Many people are
uncomfortable around terminally ill people, but Joe spent hours a day on the
phone with Ben. Ben moved back to St. Mary’s after the three weeks, and Joe
stayed in touch with him right to the end. I know that Joe’s concern meant a
great deal to Ben.
In addition to this, Joe got every one he knew to pray for Ben, and he
urged his friends who could, such as Reverend Bill Wells and Rich
rate Hutchinson, to visit with Ben. At Joe’s request, some of these friends came to
a prayer service for Ben’s recovery at St. Mary’s Hospital.
Elizabeth was thirteen when Ben died. Afte
t he di
trouble falling asleep at night. Joe would call anq ‘al her ee ogee fell
asleep. He continued to do this until they moveq him to Greensville in
August. I am grateful for Joe’s help in getting us through the time after Ben’s
death. :
Affidavit of Lynda Peacock, 1 3-5 (Tab 37).
Another example of Joe’s unselfishness earned a story in the Richmond News-Leader
on December 29, 1986. Donald Halley Stratton’s mother was gunned down in a Richmond
doctor’s office when he was eleven months old. A trust fund was established for Donald,
and letters and donations poured in:
One of the most touching letters — one Mrs. Pillow [the trust
administrator] says she had difficulty reading aloud — was sent by Joe Lewis
[sic] Wise, a convicted murderer sentenced to die in Virginia’s electric chair.
He said, in part: I’ve always loved children, and it just broke my heart
to hear what happened to you. . . . I only have $5, so I hope that the $2 that I
sent you helps you to find all that it can give.
Excerpt, Richmond News-Leader, December 29, 1986 (Tab 38). Joe wrote a poem for
Donald, called "In My Heart," which the paper published with the story.
All Joe’s friends have remarked on Joe’s growth while on death row. Dave
Herbertson says that "Joe has shown steady growth in the eight years I have known him.
When I first met Joe he would sometimes react to adverse situations in inappropriate ways.
_ Now, however, Joe confronts adversity in much more positive ways." Affidavit of Dave
Herbertson, 10. Lynda Peacock has seen the same thing. Affidavit of Lynda Peacock, 1
2. Rich Hutchinson, who has experience dealing with convicts and parolees, sees significant
growth and potential in Joe:
When I was in Chesterfield County, I volunteered at a work release
program for parolees. Because of this experience, I am not naive about
50
ate
prisoners and ex-convicts. I can distinguish betwee:
and I can tell with a fair degree of accuracy which ones will succeed on the
outside and which will fail. My belief is that the changes for the belay which.
T have seen in Joe are authentic, and if Joe right now would not be able to :
- make it on the outside, I am firm in my opinion that his efforts to better
himself will get him to that point before too long. Given the limited
opportunities available to prisoners on death row, these
Joe’s making.
en insincerity and sincerity,
changes are entirely of
Affidavit of Rich Hutchinson, 1 3.
Based on these actions and on his exhaustive evaluation of Joe, Dr. Wade has
concluded that objective evidence substantiates Joe’s growth while on the row and that Joe
has advanced significantly beyond the legacy of his dysfunctional family and upbringing.
Accordingly, Dr. Wade has concluded that Joe has shown significant potential for
rehabilitation:
It is interesting to note that the patient indicated that the last 8 years of incar-
ceration have been the happiest years of his life. When I inquired further
about this he offered that the prison environment has provided him (for the
first time in his life) with an opportunity to feel appreciated by others. I must
admit that in the years that I have been conducting Neuropsychological
evaluations of inmates, I was impressed by Mr. Wise’s altruistic behavior,
because it is atypical. Notwithstanding the infractions described in his prison -
records, it appears that Mr. Wise responds well to, and should continue to
grow in, the structured environment of prison.
eK
Each of the affidavits reviewed speak to a growth in maturity during the past
eight years. These data are consistent with the patient’s self-report that prison
life gave him the opportunity to learn prosocial ways to contribute to the lives
of others; and through these deeds he enjoyed being appreciated. The data
provided above are consistent with my evaluation findings, and suggest that
Mr. Wise has demonstrated good rehabilitation potential. In my opinion he is
likely to show further personal growth if he remains incarcerated.
Report of Dr. James B. Wade, pp. 6,8.
51
we
Dr. Wade-also noticed in Joe " intense emotiona] turmoil while discussing the events
surrounding his incarceration. He became visibly depressed while discussing the homicide.
In my opinion, and based upon my clinical experience, this behavior is consistent with
remorse regarding his actions." Report of James B. Wade, Ph.p p. 6
F. CONCLUSION
In Gideon v. Wainwright, the United States Supreme Court held that under the Sixth
Amendment to the Constitution, an indigent defendant facing criminal prosecution in state
court has the right to have counsel appointed for him. The Court stated for all of us that:
The right of one charged with crime to counsel may not be deemed fundamental and
essential to fair trials in some countries, but it is in ours. From the very beginning,
our state and national constitutions and laws have laid great emphasis on procedural
and substantive safeguards designed to assure fair trials before impartial tribunals in
which every defendant stands equal before the law. This noble ideal cannot be
realized if the poor man charged with crime has to face his accusers without a lawyer
to assist him.
372 U.S. 335, 344 (1963).
In a very real sense, this is a fundamental clemency case in the same way that Gideon
v. Wainwright was a fundamental constitutional case. Joe Wise does not seek relief from this
office because he claims innocence. Rather, he seeks commutation of his death sentence
because, like Clarence Earl Gideon, he was denied his constitutional right to the assistance of
counsel. Unlike Gideon, however, Joe was on trial for his life. And unlike Gideon, Joe was
unable to present his constitutional claim to the federal courts of the United States. As a
consequence, Joe faces a September 14, 1993 execution date.
52
Joe does not complain about Virginia’s capital Sentencing systeut or its system of
“appointing counsel to represent those charged with Capital murder. Rather, Joe requests
commutation because, in his case, these systems have failed completely, in a way that could
not now be repeated. Joe’s death sentence is a true miscarriage of justice. It is wholly
unreliable, because for all these years it has gone untested by the crucible of our adversarial
system. Under these unique circumstances, it would be appropriate for the Governor to
commute Joe’s sentence of death to one of life imprisonment,
JOE LOUIS WISE, SR.
By
Of Counsel
James D. Crawford Barry A. Weinstein
Samuel W. Silver William H. Wright, Ir.
SCHNADER, HARRISON, SEGAL & LEWIS VIRGINIA CAPITAL REPRESENTATION
1600 Market Street, Suite 3600 RESOURCE CENTER
Philadelphia, Pennsylvania 19103 1001 East Main Street, Suite 510
(215) 751-2309 Richmond, Virginia 23219
(804) 643-6845
53
