Eleventh Circuit Decision in Lawhorn Case Affirms Need for Effective Counsel at Penalty Phase


On March 11, 2008, the Eleventh Circuit Court of Appeals affirmed the district court’s judgment granting Alabama death row prisoner James Charles Lawhorn a new sentencing trial because his trial lawyer was ineffective.

Mr. Lawhorn’s lawyer waived penalty phase closing argument and objected to the prosecutor making any further closing statement. The prosecutor asserted his right to make a closing argument even if the defense did not make one. The trial judge agreed with the prosecutor and permitted him to make a rebuttal argument, during which he identified Mr. Lawhorn as the victim’s “executioner” during “a lying-in-wait ambush” which was “as cold and calculated and as merciless . . . as you can get.” The jury recommended that Mr. Lawhorn be sentenced to death.

In state postconviction proceedings, trial counsel testified that he made a strategic decision to waive closing argument because he wanted to prevent the prosecutor from making one. The postconviction trial judge found that counsel had presented caselaw to the trial court supporting his position and had made a reasonable strategic decision. The state appellate court agreed, adding that a defense closing “would have had little impact.”

The Eleventh Circuit disagreed, holding that counsel’s decision to waive closing argument was not made after a thorough investigation of the law but was based on a “gross misunderstanding of a clear rule of Alabama criminal procedure.” (Alabama law provides that, if a defense attorney waives closing argument, the trial judge may permit the prosecutor to make a closing argument.) The court held that defense counsel is obligated to understand “the legal procedures and the legal significance of tactical decisions within those proceedings.”

The Eleventh Circuit also rejected the state court’s view that a defense closing argument is unimportant: “Because one of the most important functions of the capital sentencing process is the opportunity to humanize the defendant, the importance of the defense’s closing argument cannot, therefore, be overstated.” Closing argument is counsel’s one “last clear chance” to marshal all of the mitigating evidence before the jury and explain or minimize the prosecution’s evidence.

Counsel’s failure prejudiced Mr. Lawhorn because a closing statement could have refreshed the jury’s memory of the evidence of substantial domination presented during the guilt phase and could have made arguments about the mitigation of Mr. Lawhorn’s age at the time of the offense and his troubled family background. Because one juror voted for life even without a closing argument, defense counsel “needed only to convince two other jurors to alter the outcome of the proceedings.”

The decision reaffirms the requirement that lawyers must be effective and that verdicts are not reliable without adequate assistance of counsel, and underscores not only trial counsel’s obligation to research and know the law in preparation for trial, but also the critical importance of using closing argument to humanize and advocate for a client’s life at the penalty phase.