Attorney Competence Issues May Spare Murderer : Justice: The state Supreme Court will get a report this week on the quality of the defense at the 1982 trial of one of Orange County’s most vicious killers.

Like many residents of California’s Death Row, John Louis Visciotti is running out of legal challenges to his execution.

The 37-year-old Fullerton man, considered one of Orange County’s most vicious killers, was convicted in 1982 of murdering one co-worker and shooting a second in the eye during a robbery. In an earlier incident, he had knifed another man and repeatedly stabbed a pregnant woman who begged for mercy.

Sentencing Visciotti to death more than a decade ago, Orange County Superior Court Judge Robert R. Fitzgerald told him, “It’s my greatest hope, sir, that you will actually be executed, and if it would happen soon, I would enjoy that.”

But it didn’t happen, and now Visciotti has a chance to escape Death Row. Visciotti’s lawyers are taking advantage of a common, late-inning approach to save his life: they have raised the issue of his trial attorney’s competence. Ordinarily, death penalty appeals based on incompetent counsel don’t succeed, but Visciotti has already had some success in mounting this claim.

The Supreme Court found in March, 1992, that the handling of the case by Visciotti’s trial lawyer needed to be re-examined by the Orange County Superior Court.

This week, Orange County Superior Court Judge Eileen C. Moore is expected to do that, issuing an assessment for the Supreme Court about the competence of his counsel. In that assessment, Moore will be answering a set of questions from the justices about the quality of the defense given Visciotti during the penalty phase of his trial.

Ultimately, the Supreme Court will decide whether to order a new trial or a new penalty phase.

The story of Visciotti’s attorney isn’t ordinary. After Visciotti’s conviction, his attorney, Roger J. Agajanian, served time in prison for criminal contempt, was suspended from the State Bar of California three times and ultimately was forced to resign from the bar while facing misconduct charges stemming from numerous other cases.

His subsequent history aside, said Deputy Atty. Gen. John Swan, the prosecutor in the case, Agajanian gave Visciotti an adequate, if not ideal, defense. Even if he didn’t, Swan said, “there would have been no different result.”

In 1982, Visciotti and a co-worker, Brian Lyle Hefner, had been selling portable burglary alarms door-to-door in Garden Grove. When they were fired, according to trial testimony, they decided to rob two of their co-workers, who had just been paid. They lured Timothy Dykstra and Michael Wolbert to Santiago Canyon Road on the pretext of meeting some women.

After the robbery, when Wolbert refused to get back in the car with the other three, Visciotti said, “I panicked. I started shooting.”

He hit Wolbert, then 21, in the eye and Dykstra, 22, in the chest.

Hefner is serving a life sentence without the possibility of parole for providing the .22-caliber pistol Visciotti used.

Visciotti’s appeals of his own death sentence to higher courts all failed.

But then, in its unusual ruling, the state Supreme Court ordered the Orange County Superior Court to review the facts of the case. The order questioned whether Agajanian, handling his first capital case, had effectively represented his client.

The court was particularly interested in why Agajanian did not tell the jury about Visciotti’s troubled childhood, including 43 appearances in Juvenile Court, or why he appealed to spare Visciotti for his family’s sake.

“He asked the jury to spare the defendant because it might hurt his parents,” said Richard Schwartzberg, one of Visciotti’s appeals attorneys. “It was not a defense. It’s an interesting argument, but it’s not a defense.”

The high court also asked whether the fact that Visciotti’s family hadn’t paid Agajanian’s full fee influenced his work. (In criminal cases, it is customary to pay in advance. According to testimony at the hearing, the family agreed to pay Agajanian $25,000. The exact amount he was paid is in dispute. Agajanian said it was about $7,000. The family said it was somewhat more, but acknowledged it was nowhere near the full amount.)

In upholding his conviction, the state Supreme Court acknowledged that Agajanian’s final argument to the jury was “a rambling discourse, not tied to particular evidence.” But Associate Justice Stanley Mosk’s searing dissent anticipated the full court’s subsequent change of heart.

“Agajanian’s deficiencies as trial counsel were pervasive and serious,” Mosk wrote. “Examples of Agajanian’s failings are hard to select, each competing with the other for egregiousness.”

The attorney’s plea to spare Visciotti was “worthless,” Mosk wrote.

At the court-ordered hearing last month before Judge Moore, Agajanian said he would conduct his defense the same way if he had it to do over again, attorneys for both sides present said. The unpaid fee, he said, was not a factor.

Agajanian, who is now living in Boulder, Colo., could not be reached for comment.

The state Supreme Court also voiced concern about Agajanian’s professional performance not only during but after this case.

After Visciotti’s conviction, Agajanian was convicted of two counts of criminal contempt in a federal drug case. In that 1985 incident, he misled a judge to avoid having his client appear in court.

For this conviction, he received the first of several suspensions from the California Bar, ultimately resigning his license to practice law while facing misconduct charges stemming from other cases.

He was suspended again in 1990 when he failed to pay his portion of a $1.22-million settlement to 80 investors who were bilked out of millions of dollars by a man who claimed to be a lawyer and worked in Agajanian’s Santa Ana office.

The bar’s later charges against Agajanian in the late 1980s included mishandling clients’ funds, failing to perform services for clients and not informing the court that he was suspended from practice, according to the State Bar. Agajanian resigned on Dec. 2, 1993, before the charges could be heard.

“This case is an example of how the State Bar discipline system can effectively rid the legal profession of bad apples,” said Victoria Molloy, a senior attorney with the State Bar, who handled the most recent Agajanian charges and his subsequent resignation.

Stephen B. Bright, director of the Atlanta-based Southern Center for Human Rights, said, “The right to counsel is not a technicality. It’s the most fundamental of all constitutional rights.” Bright is author of a recent article in the Yale Law Journal titled, “The Death Sentence: Not for the Worst Crime but for the Worst Lawyer.”

On Thursday, Judge Moore is scheduled to announce her findings based on the hearings she has held. The findings will go to the Supreme Court, which will probably ask for further written and oral arguments before rendering its decision.