State High Court Upholds O.C. Death Sentence

A divided California Supreme Court upheld a death sentence Monday for a Fullerton man, rejecting arguments that the defendant deserved a new penalty trial because his lawyer was incompetent.

John Louis Visciotti was convicted in 1982 of fatally shooting 22-year-old Timothy Dykstra and wounding another co-worker in the eye during a robbery.

Visciotti, 38, contended on appeal that his former lawyer, Roger J. Agajanian, was incompetent because he failed to tell jurors of Visciotti’s severely troubled childhood before they sentenced him to death in 1983. Agajanian was later forced to resign from the State Bar of California and was convicted on two counts of criminal contempt, all relating to other cases.

In a 5-2 decision, the court majority acknowledged “multiple failings” on the lawyer’s part, but said the errors did not represent a “total breakdown” of the process.

“It is not probable that had this evidence been presented, a more favorable result would have resulted at the penalty phase,” Justice Marvin Baxter wrote for the majority.

Justices Stanley Mosk and Janice Rogers Brown disagreed, with one describing Visciotti’s penalty phase as a “complete and utter farce.”

Santa Ana attorney Richard Schwartzberg, one of Visciotti’s lawyers on the appeal, said the defendant will now turn to the federal courts.

Defense lawyers had argued that jurors might have sentenced Visciotti to life in prison without parole instead of death had they known of his troubled family life.

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. Before reaching the decision, the court in 1994 had taken the unusual step of ordering a review of the case by the Orange County Superior Court.