04/05/2010 05:12 am ET Updated May 25, 2011

Justice Sotomayor: Right-Wing on the Death Penalty?

The Conservative bloc and its media allies, including Fox News and Rush Limbaugh, denounced Sonia Sotomayor when President Obama nominated her for the Supreme Court. The Right proclaimed that Sotomayor was going to be a leftist Latina "activist" judge. In all the hoopla over Citizens United v. FEC, the campaign finance case, however, few noticed that in the case Wood v. Allen Justice Sotomayor delivered the majority decision denying relief to the petitioner, a death row prisoner in Alabama. Justices Roberts, Scalia, Thomas, Ginsburg, Breyer, and Alito joined Justice Sotomayor in agreeing with the lower court's finding that trial lawyers for the petitioner engaged in effective assistance of counsel, even though they did not investigate mitigating evidence at the penalty phase of Wood's trial.

A competent defense lawyer in a capital case presents mitigating evidence at the sentencing phase, after the defendant has been found guilty of murder, to try to persuade the jury to not sentence the defendant to death.

In Wood v. Allen, the petitioner alleged that he had mental retardation and should not be executed. The question of whether or not a death row inmate has mental retardation is one of life or death because the Supreme Court held in Atkins v. Virginia that defendants convicted for murder cannot be sentenced to death if they prove they have mental retardation. Those prisoners can be sentenced to life in prison without parole.

Justice Stevens, joined by Kennedy, wrote the dissenting opinion in Wood v. Allen. Justice Stevens said that the trial record showed that trial counsel's decision to not investigate "powerful" mitigating evidence was not strategic, which is permissible, but the result of inattention and neglect. The dissent noted that before petitioner's trial, his counsel learned that Wood had an "IQ in the borderline range of intellectual functioning" and was "reading on less than a third-grade level." Justice Stevens wrote that Wood's former special education teacher testified during the post-conviction hearing that Wood was classified by the school system as "educable mentally retarded." Even though they knew about this evidence, the trial lawyers did not investigate it or present it to the jury.

The question of whether or not a decision not to investigate an issue is considered strategic or ineffective assistance of counsel is of utmost important in death penalty post-conviction appeals because it is well-settled that a lawyer has a duty to conduct a thorough investigation of possible mitigating evidence. It will be interesting to watch Justice Sotomayor's future death penalty decisions and whether she will pull along the moderate justices to the right-wing side, much to the delight of the Fox News and Limbaugh crowd.