His execution was scheduled for yesterday, about twenty-four years after his conviction. He had apparently asked to waive his appeal rights, and then relented at the last moment, allowing an appeal to be filed on his behalf. It was stayed by the U.S. Supreme Court minutes before the execution, in a 6-3 decision (Roberts, Scalia and Alito dissenting), the first stay decision joined in by Justice Thomas.
We don't know what the U.S. Supreme Court's reasoning was in this case.
The national coalition to abolish the death penalty provides some insight into what appellate issues might be present in the case.
Although Wilcher was tried twice and in two different counties (even though the crime was one single incident), Judge Marcus D. Gordon presided over both of these trials. While this may be considered standard in some cases, in this case there is reason to believe that Judge Gordon was bias [sic] and should have recused himself. First, one of Wilcher’s numerous appeals states that, during a period between Judge Gordon’s resignation and reelection to the bench, he was listed as an attorney representing Sheriff Glenn Warren, who was charged with extortion. Coincidentally, this was the same sheriff whose testimony provided a bulk of the evidence against Wilcher. Disturbingly, the judge deemed none of this information—the extortion charge or the prior professional relationship—admissible in court. Second, Wilcher’s appeals further discredit Judge Gordon by pointing out that the judge was biased, as demonstrated by one-sided contact, judicial comments, and a jury selection process that resulted in a tainted jury. The Supreme Court of Mississippi denied this appeal solely because these issues should have been brought out during trial or through a direct appeal. Although the Supreme Court of Mississippi did not assert that Judge Gordon was in fact biased, the court did claim that Wilcher’s argument that the judge should have recused himself “may have merit.”
Wilcher also appealed in an attempt to demonstrate in effective assistance of counsel, claiming that his lawyers failed to present mitigating psychological evidence of troubled childhood. Although a psychological and psychiatric evaluation by two state doctors determined that Wilcher was not under extreme psychological or emotional duress during the crime, Wilcher’s counsel was not present during this evaluation. Additionally, no cross examination of the two state-appointed professionals was ever conducted, and no testimony from other mental health professionals was ever presented. The Mississippi Supreme Court claims that even if these factors were altered during the course of the trial, Wilcher cannot show that the outcome would have been different.
If this is a fair statement of the facts, the most likely issue on appeal would be ineffective assistance of counsel by virtue of failing to raise the issue of judicial bias either at trial or on direct appeal. In a similar vein, if the issue of bias was newly discovered evidence, it might come outside the general requirement that the issue needed to be raised at trial, or at least, on direct appeal.
Another alternative is this one, which would be consistent with the fact that Wilcher was unhappy that his execution did not go forward:
Bobby Wilcher’s lawyer is continuing to seek to have the execution stayed by the courts, arguing that Wilcher should have a mental evaluation to determine his competency to waive his appeals. Bobby Wilcher suffers from bipolar disorder, a serious mental illness for which he takes medication on death row. In addition to bipolar disorder, Bobby Wilcher has a long history of psychological problems, including suicide attempts. On 14 June 2006, a federal judge found Wilcher competent to waive his appeals, after a hearing held at short notice without expert testimony presented.
SCOTUS Blog states:
In the appeal to the Supreme Court, Wilcher's lawyer raises three questions. The first contends that the Circuit Court violated the Supreme Court's 1996 decision in Lonchar v. Thomas, barring federal courts from dismissing a first habeas petition for reasons other than those spelled out in habeas law. The petition argues that Wilcher was denied relief because of the lateness of the filing of his attempt to resume his challenge. The second question claims a right to appeal over a due process violation in the District Court proceeding, and the final question claims a right to appeal over his competency to abandon his challenge.
It is a case worth watching.
Hat Tip to Sentencing Law and Policy Blog.
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