Through attorneys' pro bono work, death penalty vacated in landmark ruling

Documentary evidence convinced en banc panel that inmate is intellectually disabled

By Barbara L. Jones
BridgeTower Media Newswires
MINNEAPOLIS — Bruce Webster’s hold on life has been tenuous since 1996 when he was convicted in Texas of kidnapping and murder and sentenced to death. Until June 18, when his death sentence was vacated.

It took years, but documentary evidence eventually convinced an en banc panel in the U.S. Circuit Court of Appeals for the 7th Circuit that the record showed that Webster, with an IQ of between 51 and 61, is intellectually disabled. That makes him ineligible for the death penalty under the U.S. Supreme Court 2002 opinion in Atkins v. Virginia and 18 U.S.C. sec. 3596 (c). The circuit court sent the case back down to the District Court for the Southern District of Indiana, which vacated Webster’s death sentence after an evidentiary hearing.

Webster was represented pro bono by lawyers at Dorsey & Whitney, including Steven Wells, Kirsten Schubert and Kate Johnson.

It is the first time any court in the United States has held a habeas hearing based on newly discovered evidence of intellectual disability, and the first time that a death sentence has been invalidated on that basis.

In Atkins, Justice John Paul Stevens wrote, “If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution.” Stevens also wrote that it is unlikely that the intellectually disabled can control their behavior based upon fear of the punishment.

Stevens also wrote, “Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.”


Flaws in the death penalty system

But for about 12,000 pro bono hours contributed by Dorsey & Whitney over 11 years, Webster might have been executed by now for a kidnapping and murder that occurred when Webster was about 21 years old, and hanging with the wrong crowd. Four other men were involved in the crime, a drug deal that spiraled into tragedy.

His case was proved and his life saved in part by the attention of an anonymous clerk in an Arkansas social security office, who responded to repeated records requests that had been futile in prior years, Wells said.

“This case highlights the flaws in our death penalty system. The Social Security Administration failed to provide information critical to Mr. Webster’s defense, despite requests. The Government continued to pursue his execution even after being made aware of the new evidence. And the supposedly comprehensive provisions to the statute specifically governing death penalty habeas petitions failed to account for newly discovered evidence that a defendant is simply not eligible to be executed because of his intellectual disability,” Wells said.

Dorsey acquired the case from the Capital Project of the Federal Defender’s Office and originally planned to present a clemency petition to then-president George W. Bush.

Although evidence was presented at the original trial that Webster was intellectually disabled the government countered that he was faking it to avoid the death penalty. He lost his first appeal and his initial habeas petition.
But then new Social Security records emerged when Dorsey took the clemency case.

This is not a case where the original trial counsel flubbed the case, Wells said. The trial lawyers specifically requested records from the Social Security Administration and were told that none existed. Texas attorney Larry Moore and an investigator personally went to the SSA office separately and were told there were no records.

But eventually the SSA responded to Dorsey’s request and a packet of records arrived. It did appear that some records were missing but the employee who had sent them retired, and the office again replied that Webster’s records — including those sent to Dorsey — were destroyed.

Webster unsuccessfully sought relief in the 5th Circuit, where he was convicted, under 28 U.S.C. § 2255. The court said that the evidence of Webster’s intellectual disability did not establish innocence as required by the statute.

Since section 2255 was inadequate, Webster’s attorneys took the case to the 7th Circuit, where he is incarcerated, under 28 U.S.C. § 2241, referred to as a savings clause. His relief was denied by the District Court and the Court of Appeals panel that found that Webster did not rely on a new decision, the evidence was not withheld from the former lawyers, and the Social Security records did not facilitate a new line of defense. As a result, the court found section 2255(e) barred review.

The en banc court reversed and sent the case back to determine whether section 2241 afforded relief. District Court Judge William Lawrence found that Webster satisfied his burden of proving intellectual disability by a preponderance of the evidence. It found that the Social Security records were unavailable to Webster and his counsel at the time of trial despite trial counsel’s due diligence.

According to Lawrence’s order, the records showed that Webster applied for disability benefits a year before the crime, and doctors found his intellectual functioning impaired. The records also showed Webster’s inability to think and write clearly.

The records also contained a letter that Webster’s special education records had been destroyed, although at trial the evidence was that Webster had never received any special education. There is no evidence that the special education records were deliberately destroyed, Wells said. He did argue spoliation of evidence but the court did not reach the issue, he said.

What the records did not show is evidence of malingering that would invalidate the test results, the judge determined. In particular, he found a government witness — a clinical psychologist — to be either demonstrably incorrect or biased in some of his testimony and that trial counsel told Webster to do his best on the trial-related tests. In fact, the late-arriving records would have obliterated the argument at trial that Webster was faking it, Wells said.

The court also determined that Webster proved he had significant limitations in adaptive functioning. The records also demonstrated that Webster is barely literate, the court said.

Erin Dooley, the public affairs officer for the U.S. Attorney in Dallas said that the office is evaluating the next steps in the case.


Keeping the faith

Johnson said that Webster was rendered speechless when they gave him the news. “It’s breathtaking,” she said. A partner at Dorsey, Johnson started working on the case as a brand new associate. “We kept the faith,” she said. Schubert said a huge burden was lifted when the order came.

Wells said the result was attributable to the Capital Project of the Federal Defender’s Office and the dozens of attorneys who worked on the case over the years. There are Dorsey “ex-pats” all over town who contributed to the case, he said. “It was so clear this guy should not be on death row we were oversubscribed with attorneys,” Wells said.