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S.C. Supreme Court issues opinion of duty of counsel to present mitigation evidence

By Bill Watkins, Esq.

In Council v. State, the South Carolina Supreme Court affirmed relief in a death penalty PCR case. Council was convicted of sexually assaulting a woman and forcing her to ingest cleaning fluids. At trial, Council?s lawyer argued that he was not the murderer, but rather an accomplice at the scene actually did the killing. In the penalty phase, trial counsel only called the defendant?s mother as a mitigation witness. She testified about Council's mental health between the ages of 7 and 14 and that he had been teased while a child at school. Not surprisingly, a jury returned a verdict of guilt and recommended a sentence of death.

The death sentence was overturned because trial counsel fails to present voluminous mitigation evidence. For example, no social history was compiled. Had a social history been compiled evidence could have been presented to the jury that several of Council?s family members suffered from mental illness, that his father was an alcoholic and extremely violate, that Council lived in several homes which did not have running water and indoor plumbing, that he did very poorly in school, and that he had attempted suicide at a young age. Had trial counsel obtained a forensic psychiatrist, testimony could have been presented that respondent was an undifferentiated schizophrenic, which began in early adolescents for childhood.

In summary, the Supreme Court agreed with the PCR court that the mitigation evidence would have been powerful and that that trial counsel was ineffective for failing to present such evidence. Accordingly, the sentence of death was reversed.

Full post as published by South Carolina Appellate Law Blog on September 10, 2008 (boomark / email).