In a rare move, the 4th Circuit Court of Appeals (which handles cases from North and South Carolina, as well as Maryland, Virginia, and West Virginia) granted relief to death row inmate Dr. William Gray [1] earlier this week. The Court said that Gray, who was sentenced to die for the 1992 murder of his wife in Lenoir County, should receive a new sentencing hearing because his lawyers failed to investigate and present considerable evidence that Gray was severely mentally ill.
Dr. Gray had been exhibiting bizarre behavior for months before he shot his wife. After he was arrested, he was kept in the state mental hospital for five weeks. Once Dr. Gray returned to the jail, he had to be kept in the juvenile cell block for his own safety. Everyone around him in the months before and after the murder noticed that Gray had made a precipitous decline into mental illness, but his attorneys – neither of whom had tried a capital case before - presented no such evidence to the jury. Now William Gray has a second chance.
What Strickland Requires
Capital defendants, like all other defendants in felony cases, are entitled to the effective assistance of counsel. In Strickland v. Washington, the U.S. Supreme Court set the standard for what constitutes ineffective assistance of counsel. The Strickland test has two prongs – first, that counsel’s performance fell below an objective standard of reasonableness, and second, that there is a reasonable probability that the outcome of the proceeding would have been different if counsel had performed adequately. As to the "reasonableness prong," counsel is given wide leeway in making strategic decisions about how to proceed. The second prong is often referred to as the "prejudice prong"; the defendant has to have been prejudiced, or harmed, in some way by counsel’s ineffectiveness.
In death penalty cases, courts consider whether counsel was ineffective at one or both phases of the trial. A capital trial is really two trials in one. First evidence is presented and the jury decides whether the defendant is innocent or guilty. If the defendant is found guilty of first-degree murder, the second "trial" begins. In this phase, evidence is presented and the jury decides whether the defendant should be sentenced to life or death. Experienced defense counsel puts on evidence about the client and his background to convince the jury that despite his crime, the defendant does not deserve to die.
In the last decade, the Supreme Court has issued a number of decisions about what constitutes effective representation at the sentencing phase. In 2000, Williams v. Taylor set the baseline for applying Strickland in the sentencing phase – failure to investigate and prepare for the sentencing phase can render counsel ineffective. In 2003’s Wiggins v. Smith, the Court found that counsel cannot make a strategic decision (for the "reasonableness prong") about what evidence to present in the sentencing phase if they have not adequately investigated the client’s background. Finally, in 2005, the Court ruled in Rompilla v. Beard that counsel has a duty to undertake an investigation of the client’s background even if the client says there’s nothing to find.
What Happened in Gray’s Case
In early 1992, William Gray’s wife told him she wanted a divorce. He went, as they say, off the deep end. Gray’s friends and associates said that he "didn’t have a grasp of what was going on" and "didn’t appear to be in his right mind." He became "disturbed" and "distraught." His behavior so alarmed the Grays’ marriage counselor that the counselor withdrew from the case. Mr. Gray repeatedly contacted his wife’s doctor, who believed that Gray was suffering from a "behavioral aberration and psychological problem." Gray hired Bob Worthington to represent him in the divorce proceedings.
On November 24, 1992, William Gray shot his wife after a struggle in the driveway of their home. He hired his divorce lawyer, who had never handled a capital murder case and had participated in only one first-degree murder trial, to represent him. Dr. Gray later retained Dal Wooten, who had also never handled a capital case. When Dr. Gray’s money ran out, Worthington and Wooten were appointed by the court to represent him at trial. [If this case were tried today, Dr. Gray would be appointed at least one attorney with prior capital trial experience. Both attorneys would be required to have substantial criminal litigation experience, as well as familiarity with the practice of investigating mental health and the client’s background.]
Gray was placed on suicide watch in the Lenoir County Jail. A jail employee checked on him every fifteen minutes, and noted that he appeared very depressed. Gray reported to the employee that he had been unable to sleep for the previous two months. He fainted during a visit from a friend. The chief jailer – not Gray’s attorneys – suggested that he be committed to Dorothea Dix Hospital for a mental health evaluation. When Worthington made the motion, the court granted it immediately.
Gray was kept in a psychiatric facility for five weeks. The doctor there noted that Gray had been under tremendous stress which "may have contributed to the regression in behavior and reductions in impulse control." He diagnosed Gray with "adjustment disorder and mixed disturbance of emotions and conduct," and noted that Gray had "narcissistic traits with some features of paranoid nature." The doctor’s report was clear that he had limited information about Gray’s condition prior to the crime, and that he would revise his opinion if provided with further information. Worthington had two documents in his file from the divorce case that contained reports from third parties (the marriage counselor and Mrs. Gray’s doctor) about Dr. Gray’s abnormal behavior before the shooting, but he did not give them to the psychiatrist.
When Gray returned from Dorothea Dix, Worthington suggested that they hire an independent psychiatrist. Gray insisted that "there was nothing wrong with him" and that "he didn’t need a psychiatrist." Worthington never raised the issue again. Worthington never even discussed the idea of hiring a mental health expert with his co-counsel, Dal Wooten. Worthington’s only conversation with Gray about his mental health took place before Gray was even indicted, well before the death penalty was officially on the table. Gray continued to suffer from anxiety attacks and fainting spells. Friends described him as irrational and "damaged emotionally." Worthington requested that Gray be moved to the juvenile cellblock of the county jail "due to his physical and mental condition."
Despite all of this, no mental health evidence was presented at either the guilt/innocence or sentencing phases of Dr. Gray’s trial. The sentencing phase took less than a day; Gray’s attorneys presented only six character witnesses to say things like ‘he was a good father’ or ‘he coached Little League.’ Unsurprisingly, the jury recommended a sentence of death.
Dr. Gray’s post-conviction attorneys hired an independent psychiatrist, who diagnosed Gray as suffering from paranoid personality disorder, with a severity of eight on a scale of one to ten. The psychiatrist further found that Dr. Gray was under considerable emotional distress at the time of the shooting, and that his ability to conform his conduct with the requirements of the law was significantly impaired by his personality disorder, with the added stress of his marital problems. None of this evidence was presented to the jury.
What the Fourth Circuit Found
The majority opinion held that "counsel rendered ineffective assistance by failing to investigate and develop, for sentencing purposes, evidence that Gray suffered from a severe mental illness, and it is reasonably probable that this failure prejudiced the outcome at sentencing."
- The reasonableness prong
In deciding whether trial counsel’s conduct was "reasonable," the Court considers the facts of the case before it from counsel’s perspective at the time of trial. Counsel is not required to run down every rabbit hole, but they are expected to comply with the professional norms of the day. The Fourth Circuit referenced Wiggins, saying, "According to the Supreme Court, it was a well-defined norm at the time of Gray’s trial that investigation into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence." [Internal citations omitted.] Counsel cannot settle on a strategy for the sentencing phase until such investigation has been conducted.
The Court found that Gray’s counsel ignored repeated "red flags" that would have led competent attorneys to further investigate his mental impairment. Friends, associates, even employees of the jail and state mental hospital told counsel that Gray was disturbed and irrational. Counsel never spoke to each other about hiring a psychiatrist, and Worthington only raised the issue with Gray once, long before trial. Counsel never tried to get funding from the court to hire an independent psychiatrist, nor did they take the doctor from Dorothea Dix up on his offer to provide further evaluation. Finally, the court noted that no reasonable lawyer would "rely on his client’s self-assessment of his mental health, especially in a capital case." Given this total failure to investigate obvious signs of mental illness, the Court held that counsel cannot be said to have made a reasonable, strategic decision not to put on mental health evidence in the sentencing phase.
- The prejudice prong
Ineffective assistance of counsel claims frequently lose on the prejudice prong. Courts find that the evidence counsel failed to present was not particularly moving, that the suggested evidence could have either hurt or helped the defendant, or that the crime was so depraved and disturbing that the jury would not have been swayed by the evidence. Here, the Court found that none of those things are true.
The Fourth Circuit found that Gray suffers from a severe mental illness, evidence of which would have given the jury some means of explaining his compulsive behavior and inability to control his actions. The evidence would have directly supported two mitigating factors – that Gray committed the murder while under the influence of mental or emotional disturbance, and that Gray’s capacity to conform his conduct to the requirements of the law was impaired – that could have convinced the jury to spare his life. This sort of evidence is not a double-edged sword; in no way does it make Gray seem more evil or more like the "worst of the worst" offenders.
The Court also noted that "the State’s evidence in support of the death penalty is far weaker" in Gray’s case than it is in many cases. In Williams v. Taylor, for example, the defendant beat an elderly woman, stole two cars, set fire to a home, stabbed a man during a robbery, and after he was incarcerated, choked two inmates and broke another prisoner’s jaw. Dr. Gray had no serious prior record of violence, nor has he been violent in prison.
The State secured a death sentence for Dr. Gray by arguing (1) that Dr. Gray committed the murder to disrupt or hinder the exercise of a governmental function (that is, he killed his wife to "disrupt" their divorce proceedings), (2) that Dr. Gray killed his wife to prevent her from "the exercise of her official duty as a witness" (testifying against him in a misdemeanor case), and (3) that the murder was especially heinous, atrocious, and cruel (Dr. Gray had assaulted his wife at least once prior to the murder, and she sustained minor injuries in the struggle prior to the shooting).
Given the relatively weak evidence in support of a sentence of death, the Court found it reasonably likely that the jury would not have sentenced Gray to die had it known about the severe mental illness that led to the shooting.
What Happens Now
One possibility is that the case will, as the Court requested, go back to Lenoir County. A new jury will be impaneled. They will not consider whether Gray is guilty, only what sentence should be imposed. Because the murder occurred in 1992, the jury can choose either life with the possibility of parole or the death penalty. [Since 2001, all persons convicted of first-degree murder have been sentenced either to life without parole or to the death penalty.] A jury will decide, with all of the information the law says they should have, whether Dr. Gray lives or dies.
Another possibility is that the 4th Circuit will take the case en banc. Normally the federal circuit courts hear cases in three-judge panels. (Here is was M. Blane Michael, Roger L. Gregory, and Allyson Kay Duncan.) Upon motion of the losing party, or with the support of the majority of the judges, the Fourth Circuit could decide that it would be best for all thirteen active judges rehear the case and issue a new opinion.
The 4th Circuit is widely regarded as one of the most conservative circuit courts, and one of the most hostile to capital defendants. Between 1992 and 2001, the Court reviewed over 100 petitions for habeas corpus from death-sentenced inmates. (Not including successive petitions filed by the same defendant, or cases in which the district court denied relief and the 4th Circuit remanded due to procedural error.) The Court denied relief in every case. In twenty-three of those cases, the inmate got relief from either the district court or a three-judge panel of the 4th Circuit, but relief was taken away. The last death row inmate to get relief from the 4th Circuit was Tim Allen in 2004. He is now serving a life sentence. Prior to Mr. Allen, no one had gotten relief from the 4th Circuit since 1992.
Contact Attorney General Roy Cooper and tell him that fairness demands that Dr. William Gray receive a new sentencing hearing. Dr. Gray’s trial attorneys failed to present critical and readily available evidence that their client was severely mentally ill, and that his illness contributed to his actions. The jury didn’t know the whole story when they sentenced Dr. Gray to death. If a new jury is impaneled, they will have the opportunity to hear the case that should have been presented in 1993, and justice will be done. Ask Attorney General Cooper not to request that the 4th Circuit rehear Dr. Gray’s case en banc. The three-judge panel made the right decision, and it should be allowed to stand.
Attorney General Roy Cooper
9001 Mail Service Center
Raleigh, NC 27699-9001
(919) 716-6400
[1] Dr. William Robert Gray was a dentist prior to his incarceration. For those who think professionals cannot suffer from debilitating mental illness, I refer you to the tragic case of David Crespi, the Charlotte bank executive who stabbed his twin five year old daughters to death in 2006. He is now serving a life sentence.
DeathWatch North Carolina