Judge Finds Killer on Death Row Had Competent Defense

A murderer from Fullerton who is appealing his death sentence claiming his attorney was incompetent had, in fact, “an experienced criminal trial attorney,” an Orange County Superior Court judge said Thursday.

Attorneys for John Louis Visciotti, 37, had argued before the state Supreme Court that his former attorney, Roger J. Agajanian, never told the jury about his troubled childhood before they sentenced him to death in 1983. They also pointed out that Agajanian was subsequently forced to resign from the state Bar Assn. and was convicted on two counts of criminal contempt, all relating to other cases.

Visciotti fatally shot 22-year-old Timothy Dykstra of Westminster, a former co-worker, after Visciotti lured him to Santiago Canyon and robbed him in 1982.

While it is common for killers on Death Row to appeal their sentences claiming attorney incompetence, it is highly unusual for the Supreme Court to consider that possibility.

But nearly three years ago, the state Supreme Court did just that in Visciotti’s case. The justices asked Orange County Superior Court Judge Eileen C. Moore--who did preside over the case--to hear testimony on the issue of Agajanian’s handling of the defense. The high court also asked her to answer specific questions.

Moore’s answers now go back to the justices, who will hear further arguments on the question before deciding whether Visciotti should have a new penalty trial.

Moore also said in her report that Agajanian “used his store of knowledge, experience, professional instinct and intuition” in Visciotti’s case. But she also found that he did not take some actions on Visciotti’s behalf.

Outside of interviews with Visciotti’s family and friends, Agajanian did not “become aware of potentially mitigating evidence from any other source.” Neither did he review “school records; juvenile court records; or other material relevant to the defendant’s history.”

Agajanian testified that he did not present evidence of Visciotti’s troubled family life or lengthy juvenile record because, “frankly, I didn’t think it would work. Maybe now with the Menendez-type case . . . it works. Maybe you can use an Oprah defense . . . (when) your clients become the guests rather than the clients and maybe the jury becomes the audience. Who knows?”

Deputy Dist. Atty. Chuck Middleton, who argued the prosecution’s case before Moore, said the judge’s finding made the point to the Supreme Court “that Mr. Agajanian provided an adequate defense.”

Visciotti’s current attorneys could not be reached for comment Thursday. But earlier, one of the defense lawyers, Richard Schwartzberg, said that had Agajanian taken the steps the justices asked about, “that jury would have voted for life.”

Visciotti’s guilty verdict was upheld by the 4th Court of Appeal in Santa Ana, and in early 1992 the state Supreme Court rejected Visciotti’s “final” appeal in a 6-1 decision. The U.S. Supreme Court declined to hear Visciotti’s appeal that year.

But after reconsidering, the state Supreme Court decided to take another look at the competence issue.