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Fourth Circuit Grants Habeas Relief for Death Row Prisoner Because Trial Court Excluded Expert Testimony Defendant Represents Low Risk of Violence in Prison

by David Reutter

The U.S. Court of Appeals for the Fourth Circuit reversed the denial of habeas corpus relief to a death row prisoner. The Court held that where the jury’s only choices were life in prison without parole or death, the exclusion of expert testimony that the defendant “represents a very low risk of committing acts of violence while incarcerated” is a violation of clearly established law.

Before the Court was the appeal of Mark Eric Lawlor. He was a leasing consultant at an apartment complex in Fairfax County, Virginia, when on September 24, 2008, he consumed alcohol and a large amount of crack cocaine. He had access keys to each apartment and entered the residence of Genevieve Orange. Lawlor “sexually assaulted, bludgeoned, and killed” her.

He was convicted at the guilt phase of his trial, leaving the jury to decide the penalty. It was faced with deciding whether he fit the future dangerousness and vileness aggravators. The jury ultimately found that both aggravators were present, and it recommended a sentence of death, which the trial court imposed. Lawlor’s appeals in state court were denied, as was his habeas corpus petition in a Virginia federal district court.

At issue on appeal in the Fourth Circuit was the exclusion of testimony by Dr. Mark Cunningham, a clinical psychologist and expert in prison risk assessment and adaption. He conducted a thorough review of Lawlor’s history by interviewing people and reviewing his past school, prison, employment, mental health, and rehabilitation records. Cunningham used statistical data and actuarial models to analyze Lawlor’s “potential to adjust to a life term in prison without serious violence.”

During Cunningham’s testimony, the trial court “repeatedly admonished defense counsel and Dr. Cunningham not to confine ‘society’ to prison.” That is, the court told Dr. Cunningham: “It’s future dangerousness, period, not future dangerousness in prison….” 

The jury sent two notes during deliberations, asking if a threat to society meant “prison society or society in prison.” It was instructed that it meant all of society, and they should not concern themselves with the circumstances once Lawlor was sent to prison. One juror said in an affidavit that his vote for death was based on Lawlor being a threat if released to “regular society.” That juror did not believe Lawlor would be a continuing threat while in prison.

The Fourth Circuit explained that the U.S. Supreme Court clearly established in Eddings v. Oklahoma, 455 U.S. 104 (1981), that the Constitution requires “that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record . . . that the defendant proffers as a basis for a sentence less than death.” The Supreme Court applied that rule in Skipper v. South Carolina, 476 U.S. 1 (1986), when “considering a capital defendant’s right to present mitigating evidence regarding future dangerousness when that aggravator is alleged.”

The Skipper Court instructed that courts must predict a convicted person’s probable future conduct when they engage in the process of determining the punishment to be imposed, and the “defendant’s past conduct [is] indicative of his probable future behavior.” Relevant to the inquiry of whether a defendant should be spared the death penalty is consideration that “he would pose no undue danger to his jailers or fellow prisoners and could lead a useful life behind bars if sentenced to life imprisonment.” Id. 

The Court found this is well established law. It also pointed to California v. Ramos, 463 U.S. 992 (1983), which states, “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.”

At oral argument, the State “conceded that prison society is a relevant part of the ‘society’ mentioned” in Virginia law. The trial court applied an erroneous classification of society. It also improperly excluded evidence of “conditions of prison life.” The Fourth Circuit further found the Virginia Supreme Court contravened U.S. Supreme Court precedent with its distinction between “character” and “characteristics” in discussing admissibility of mitigation evidence in a capital case. Thus, its finding that Cunningham’s proffered testimony “was not probative of Lawlor’s disposition to make a well-behaved and peaceful adjustment to life in prison” was inadmissible constitutes error.

Thus, the Fourth Circuit held the “district court erred in concluding that the state court did not unreasonably apply clearly established federal law.” The Court had “grave doubt” that the error of excluding Dr. Cunningham’s testimony was harmless. Accordingly, it reversed and remanded the matter to the district court for further proceedings. See: Lawlor v. Zook, 909 F.3d 614 (4th Cir. 2018). 

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Related legal case

Lawlor v. Zook



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