Death Sentence, Conviction Overturned

A federal appeals court on Friday reversed the conviction and death sentence of a man found guilty of murdering, robbing and raping a woman in Contra Costa County in 1982, ruling that his defense attorney provided constitutionally deficient representation.

The 3-0 decision marked the 10th time in a year that the U.S. 9th Circuit Court of Appeals has either reversed a California death sentence or upheld the ruling of a lower federal court judge toppling a capital sentence previously approved by the state Supreme Court. Friday’s decision was the second of the 10 cases where the verdict also was overturned.

The court has upheld three death sentences during the same period.

On Friday, in the case of Michael Wayne Jennings, the San Francisco-based appeals court ruled that attorney Michael J. Oliver’s “unreasonable failure to investigate psychiatric evidence and possible medical defenses fell below the minimal standard of effectiveness that can be reasonably expected of defense counsel.”

While there was a wealth of circumstantial evidence that Jennings committed the murder, the court said, Oliver failed to explore the possibility of a mental defense that could have resulted in Jennings being convicted of a lesser crime. If Jennings had been convicted of second-degree murder or manslaughter, he would not have been eligible for the death penalty.

“Given the wealth of mental health and drug abuse evidence at the ready, effective counsel almost certainly would have made an effort to raise reasonable doubt, as to” whether Jennings had the intent necessary to commit first-degree murder, Judge Betty B. Fletcher wrote.

The 9th Circuit said that Jennings, 52, should either be retried or released.

Friday’s decision reversed a unanimous 1988 state Supreme Court ruling and a subsequent ruling by U.S. District Judge William A. Ingram of San Jose, who in 1999 rejected claims that Jennings’ right to a fair trial had been violated.

Jennings’ appellate attorneys, Marianne D. Bachers and Gilbert Eisenberg of San Francisco, said Friday that they were elated. “The 9th Circuit understood that my client did not receive a fair and just trial,” Bachers said.

Dane Gillette, a senior deputy attorney general, said he was very disturbed by the ruling and the overall trend of reversals. He said his office would definitely seek a rehearing before a larger panel of 9th Circuit judges.

Jennings was convicted in 1984 of murdering Violet Newman, 63, in her Concord home in August 1982.

Her body, discovered by her brother-in-law after she failed to appear at work, was unclothed except for a night hat and gloves, according to court documents. Her wallet, checkbook and telephone answering machine were missing.

An autopsy found 14 stab wounds to her chest and abdomen. A carotid artery and a jugular vein were severed. There was clear evidence of rape.

The 9th Circuit cited several facts linking Jennings to the murder. He had known Newman for much of his life, having lived next door to her at his parents’ home. In addition, strapping tape found in Newman’s home bearing Jennings’ thumb and palm prints matched tape found in his pickup truck. Semen consistent with Jennings’ blood type was found on Newman’s body. And Jennings volunteered facts about the crime to friends and the police that had not been made public.

Oliver put on what the 9th Circuit described as a “very weak alibi defense.” The key issue before the appeals court was whether Oliver’s failure to investigate possible mental defenses constituted ineffective assistance of counsel under the U.S. Supreme Court’s 1984 Strickland vs. Washington decision.

That decision holds that a defendant seeking to show that his 6th Amendment right to effective assistance of counsel was violated must demonstrate both that his lawyer’s performance was well below professional norms and that the deficient performance undermined confidence in the outcome of the trial.

Fletcher, an appointee of Jimmy Carter, wrote that Oliver’s performance had been so bad that both parts of the Strickland standard had been met. Judges Marsha S. Berzon, a Bill Clinton appointee, and Thomas G. Nelson, a George Bush appointee, joined in the opinion.

Among Oliver’s failures, Fletcher wrote, were:

* He did not conduct any follow-up with a psychiatrist who had undertaken a two-hour examination of Jennings before Oliver was appointed to handle the case.

* He did not ask for copies of Jennings’ voluminous medical records.

* He did not seek appointment of additional experts to evaluate Jennings’ mental state or the possible effects of methamphetamine on Jennings, even though he knew a syringe had been found in Jennings’ car and Oliver knew his client had reported to the police that he had been “strung out on ... crank for over a year.”

* He did not follow up on reports from Jennings’ ex-wife--who was represented by Oliver in divorce proceedings against Jennings--that Jennings had attempted suicide by driving his car into a tree.

* He did not investigate a previous incident--of which he had some knowledge--in which a judge ordered Jennings committed involuntarily for psychiatric evaluation because he appeared catatonic.

Fletcher said that Judge Ingram had misconstrued the Strickland standard in rejecting Jennings’ claims when he reviewed the case after the state Supreme Court upheld the verdict.

“We are not to determine whether it is possible to find a worse attorney, but whether a particular defendant received representation sufficient to satisfy the 6th Amendment,” Fletcher wrote.

She also emphasized that as long ago as 1983, the California Supreme Court had ruled that “a possible conflict between a diminished capacity and an alibi defense would not excuse counsel’s failure to initially investigate the strengths of a ‘mental defense’ vis-a-vis an uncorroborated alibi defense.”

In fact, Fletcher wrote, even the prosecutor in Jennings’ case expressed concern to the trial judge that Oliver “had not properly investigated substantial medical records and that the failure could provide grounds for appeal.” Oliver then assured the judge he had fulfilled his duty, Fletcher said.

An attorney who had diligently investigated the case would have opted for a mental defense strategy, Fletcher concluded. Had Jennings done that, “we ... find it reasonably probable that the jury--which deliberated for two full days before rendering its guilty verdict ... would have rendered a verdict for second-degree murder or manslaughter, both of which were presented as options, but neither of which was argued or supported by the case Mr. Oliver presented,” Fletcher wrote.

Some years after the trial, the State Bar suspended Oliver at least twice for failing to meet his obligations to clients. And earlier this year, the State Bar ordered him removed from active status, according to the agency’s records.