“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

Trump 11th Circuit judge Lisa Branch wrote the 2-1 August decision in Jenkins v. Commissioner that rejected a request for post-conviction relief and held that a death-row prisoner with an IQ of 78, whose lawyer failed to present available mitigating evidence at the penalty phase of his trial, should be executed. Judge Charles Wilson vigorously dissented, pointing out that there should at least be an evidentiary hearing on the issue of intellectual disability, which was dealt with by the state court in “a mere three sentences.”

Mark Allen Jenkins was sentenced to death for a murder committed in Alabama in 1989. Two claims to prevent the imposition of the death penalty were raised but rejected by state courts and a lower federal court. First, during the penalty phase of the trial, after which the jury voted in favor of the death penalty by one vote, Jenkins’ lawyer Stan Downey failed to call witnesses or present mitigating evidence concerning Jenkins’ abusive childhood and other issues. Second, Jenkins never received a hearing that could have led to the conclusion that executing him would be cruel and unusual punishment under the Eighth Amendment because of his serious intellectual disability under the Supreme Court’s Atkins decision.

In a 2-1 decision by Branch, the 11th Circuit affirmed these rulings and ordered that the execution could go forward. Branch adopted the view that there was no ineffective assistance of counsel because Downey adopted a strategy of arguing that the death penalty should not be imposed because of remaining doubt about Jenkins’ guilt, and thus he was not obligated to investigate other mitigating factors, and that there was no adequate proof of prejudice resulting from what Downey failed to do.

Judge Wilson demonstrated what was wrong with Branch’s reasoning. Under recognized Supreme Court precedent, Wilson explained, a lawyer’s strategy decisions “cannot be justified unless counsel first conducted a constitutionally adequate investigation.” In this case, Wilson went on, the record at a state post-conviction hearing showed that “Downey conducted no such investigation,” and another lawyer testified that Downey told him he had “not investigated potential mitigating evidence” at all. Downey did “even less” than attorneys in cases whose performance has been ruled ineffective in other 11th Circuit cases, Wilson noted, including failing to investigate Jenkins’ “significant deficits in cognitive functions,” his “juvenile history,” his “poor school records,” and his “abusive childhood.” For example, Jenkins’ stepfather beat him “on a semi-daily basis, would lock him in a room for hours without food, and even made Jenkins eat his own feces.”

The “compelling” and “horrendous” testimony that could have been presented for Jenkins, Wilson concluded, demonstrated a “reasonable probability that at least one juror” would have made a different decision on the death penalty if Downey had done his job properly. And the record showed that Downey spent only “fifteen minutes” in “preparation for the penalty phase,” which Wilson explained was a “wholly inadequate amount of time under Supreme Court precedent.”

Branch’s opinion also agreed with the state and lower federal courts that Jenkins’ Atkins claim should be rejected and asserted that he did not “diligently attempt to develop the factual basis for this claim in state court.” But as Judge Wilson explained, it was “not possible” to adequately analyze the contention based on the current record. The state court evaluated the claim in a “mere three sentences,” and Jenkins “never had an opportunity to present evidence” concerning it. Branch’s complaint that Jenkins did not explicitly ask for an evidentiary hearing was misplaced and “superficial,” Wilson went on, because Jenkins did specifically ask a state appeals court to “remand his case for further proceedings” in a lower court, which was “equivalent to a request for an evidentiary hearing” that would have occurred automatically in Alabama if the case had been remanded. Branch’s “rigid understanding” that the term “evidentiary hearing” must have been used, Wilson concluded, “should not bar a death row prisoner from bringing a constitutional, and potentially lifesaving, claim.”

As a result of Branch’s 2-1 ruling, however, Mark Allen Jenkins is all too likely to be executed despite his counsel’s deficient performance, and without any opportunity for it to be shown that imposing the death penalty upon him is unconstitutional because of his serious intellectual disability.

NOTE: In June, 2020 the court issued a revised opinion in which Branch still ruled against Jenkins, though on slightly different grounds. Judge Wilson continued to dissent, adhering to his contention that Branch was wrong on the ineffective assistance of counsel issue and that there should be an “evidentiary hearing” on the intellectual disability issue.