Mississippi Supreme Court, 10/22/09: An important death penalty case and a fraud case

There are two published opinions in the Mississippi Supreme Court’s decision list.  One reverses a case where Judge DeLaughter converted a motion to dismiss to a summary judgment without prior notice, and got wrong the statute of limitations for fraudulent concealment.  The claim is against Eugene Tullos, the lawyer for the administrator of an estate, had told the heirs he’d auctioned some of the estate’s realty, when in fact there had been no auction, but rather a transfer to another lawyer (as a straw man) who two years later transferred it back to Tullos.

Is anyone keeping track with how many cases of Judge DeLaughter’s have been reversed since the recent revelations?  Is this just something that I’m noticing because I’ve been sensitized to it?

The other decision is a sharply divided post conviction review in a death penalty case, Anthony Doss’s case, presenting two issues:  Ineffective assistance of counsel, and whether the defendant was retarded and therefore not subject to the death penalty.  There are two majority opinions, one by Justice Graves (joined by Dickinson, Chandler, Kitchens, and Waller) holds that Doss did not have effective assistance of counsel because his lawyer failed to perform an adequate investigation. Dickinson (joined by Waller and Chandler) writes about ineffectiveness:

¶55.    Although I have no personal reluctance in voting to affirm the death penalty in an appropriate case, I cannot do so where the defendant has not had reasonable (not necessarily perfect) representation and a fair trial; and particularly during the phase of the trial in which the fact-finder decides whether or not to put the defendant to death.
¶56.    Doss – who very well may deserve the death penalty – certainly did not have effective or reasonable representation during the penalty phase of his trial. I find it amazing that anyone might conclude otherwise, after reading the affidavit9 submitted by his trial counsel. I agree that we must remand for a new sentencing hearing on the question of whether Doss should be executed or serve life without parole.

Judge Lamar dissents on ineffectiveness, accussing the majority of going behind findings of fact.  On retardation, she wrote the majority, and Graves (joined by Kitchens only) dissents.

This is a big victory for Rob McDuff; winning at post-conviction is a tough feat, particularly on ineffectiveness issues.  It’s my experience that the court in the recent past has completely failed to pay attention to the United States Supreme Court decisions about counsel’s duty to investigate.  I hope this has changed, and this decision is a product of the realignments on the court– note Kitchens and Chandler in the majority.