Death Penalty Overturned for Killer
By Charles Montaldo - About.com
March 28, 2012
The Arizona Supreme Court has set aside the death
sentences of a man who bludgeoned to death his girlfriend and each of
her two children one at a time with a baseball bat and a pipe wrench as
they arrived home from school and work. The court ruled that the crimes
of James Granvil Wallace were not legally heinous.
Wallace has been on Arizona's death row for 28 years.
His sentences have now been commuted to life sentences.
Under Arizona law in 1984, when Wallace turned
himself in and confessed to the three murders, to be given the death
penalty, prosecutors had to prove that the crime was especially heinous
by showing that Wallace either relished in the crime, inflicted
gratuitous violence or needlessly mutilated the victims.
Laying in Wait to Kill
In Wallace's case, prosecutors argued that he
inflicted gratuitous violence. Here's why:
While living with Susan Insalaco in her Tucson
apartment, he came home drunk on Jan. 31, 1984 and Susan told him he had
to move out. The next morning, Susan went to work and her son Gabriel,
12, and her daughter Anna, 16, went to school.
Anna was the first to come home that day. Wallace hid
behind the front door with a baseball bat. When she arrived, he hit her
at least 10 times so hard the baseball bat broke. But she was still
moaning and not yet dead. He drug her into the bathroom and plunged the
broken bat into her neck and out her back.
When Gabriel arrived, Wallace hit him 10 times with a
18-inch pipe wrench, crushing his skull and killing him.
Two hours later, when Susan Insalaco came home from
work, he hit her four or five times with the pipe wrench, killing her
Atrocious, But Not Heinous
Although the Arizona court said the crimes were
"atrocious" and "senseless" they did not rise to the level of
"especially heinous" under the law, because Wallace "did not inflict
more wounds on the family than he thought were necessary to kill them."
"Even among capital cases, this case is atrocious,"
the justices wrote in their ruling. "Wallace's premeditated, brutal
murders of Anna and Gabriel clearly were senseless, and the
unsuspecting, defenseless victims were helpless."
Current Law Allows Death Penalty
Under current Arizona law, a killer can get the death
penalty simply for killing more than one victim, but that was not the
law in 1984.
Arizona Assistant Attorney General Kent Cattani told
reporters that he still believes that Wallace did exhibit gratuitous
violence during the murders of the children.
"He should have known, given the size of the
instrument used and the size of the victims, that he had inflicted
enough violence to cause death," Cattani said.
INMATE 053811 WALLACE JAMES, G
Wallace lived with Susan Insalaco and her two
children, 16-year-old Anna and 12-year-old Gabe.
After an argument with Susan on the night of January
31, 1984, Susan told Wallace to move out the next day. After Susan, Anna
and Gabe left the next day, Wallace did not leave, and instead stayed in
the house and decided to kill them.
When Anna returned from school that day, Wallace was
waiting with a baseball bat. He hit Anna repeatedly on the head until
the bat broke, then pushed the broken end of the bat through her throat.
Wallace put Anna’s body in the bathroom, cleaned up, and then got a
steel pipe wrench from a shed.
When Gabe came home, Wallace followed him into his
room and killed him by striking him in the head with the pipe wrench.
Wallace then waited for Susan.
When she arrived 2 hours later, she asked him why he
had not left as she had requested. He followed her into the kitchen, and
killed her by hitting her in the head with the same wrench.
Presiding Judge: Hon. James C. Carruth
Hon. Virginia C. Kelly (resentencing)
Prosecutor: Edward C. Nesbitt (trial) & John Davis (resentencing)
Rick Unklesbay & Teresa Godoy (resentencing)
Defense Counsel: Lamar Couser (trial), George Curtis (resentencing)
Eric Larsen & Jill Thorpe (resentencing)
Start of Trial: March 1, 1985 (guilty Plea)
Verdict: March 1, 1985 (guilty Plea)
Sentencing: May 15, 1985
Resentencing: August 25, 1987
Resentencing: April 7, 2005
Especially heinous, cruel or depraved
Age of victim (under 15)
Prior conviction for a serious offense
State v. Wallace, 151 Ariz. 362, 728 P.2d 232 (1986).
State v. Wallace, 160 Ariz. 424, 773 P.2d 983 (1989).
[Direct Appeal pending before the Arizona Supreme Court)
184 F.3d 1112 (9th Cir. 1999)
JAMES GRANVIL WALLACE, Petitioner-Appellant,
TERRY STEWART, Respondent-Appellee.
UNITED STATES COURT OF APPEALS FOR THE NINTH
Argued and Submitted April 22, 1998
Decided July 21, 1999
Appeal from the United States
District Court for the District of Arizona, William D. Browning,
District Judge, Presiding. D.C. No. CV-91-00315-WDB.
Before: Procter Hug, Jr., Chief
Judge, and Alex Kozinski and Thomas G. Nelson, Circuit Judges.
KOZINSKI, Circuit Judge:
Petitioner, James Granvil Wallace,
pleaded guilty to first degree murder and was sentenced to death.
The circumstances of the crime are brutal and undisputed.
One afternoon in February 1984,
Wallace lay in wait at the mobile home he shared with his girlfriend,
Susan Insalaco, and her two children.
The first person to arrive was
Anna, Susan's 16-year-old daughter. Wallace struck her repeatedly
with a baseball bat, breaking the bat. As Anna lay moaning, he
forced the broken bat through her throat until it hit the floor, and
then dragged her body into the bathroom.
Gabe, Susan's 12-year-old son,
arrived next. Wallace struck him repeatedly with a pipe wrench,
fracturing his skull and leaving brain matter on the floor. Susan
arrived last and he struck her repeatedly with the wrench.
Wallace then took money from
Susan's wallet, bought some liquor and drank it; he spent the night
at a friend's house. The next day he turned himself in to the police.
He has reported what he remembers of the murders and has never
denied he was the perpetrator. Indeed, he insisted on pleading
guilty in order to spare the victims' family the anguish of a trial.
Nothing in the record explains
Wallace's violent actions. The senselessness of the tragedy is
underscored by the fact that the rational mind can find nothing that
Wallace gained by destroying Susan Insalaco and her children. The
bizarre circumstances of the crime suggest that Wallace may have
been acting as a result of some mental infirmity, which might have
constituted a mitigating circumstance under Arizona's death penalty
Nevertheless, Wallace was
sentenced to death for his crimes, and his principal claim in his
federal habeas petition is that his counsel were ineffective in
presenting the available mitigating evidence to thesentencing court.
It is to this question we turn first.
Ineffective Assistance of Counsel
A. Several lawyers represented
Wallace in his state court proceedings. Lamar Couser, who was
appointed after two previous counsel withdrew, represented Wallace
through his guilty plea and initial sentencing. Couser moved for a
mental examination, and Dr. Richard Hinton, a court-appointed
clinical psychologist, found Wallace competent to stand trial based
on a review of police records, the results of an MMPI (psychological
profiling) test and a brief interview with Wallace. Wallace then
pleaded guilty to the three murders.
In the two and a half months
between the plea and sentencing, the probation department had two
psychiatrists, Drs. Barry Morenz and James Little, examine Wallace.
Their joint evaluation, which was included in the presentence report,
diagnosed Wallace with antisocial personality disorder and
polysubstance abuse, and noted that Wallace's mother "appeared to
have suffered from a mental illness of psychotic proportions."
Couser then retained Dr. Otto
Bendheim, another psychiatrist, to testify on Wallace's behalf at
the sentencing hearing. However, Couser did not provide Bendheim
with Wallace's MMPI results or with any information about Wallace's
From his brief interview with
Wallace and the presentence report, Bendheim ascertained that
Wallace's mother had been mentally ill. Bendheim was unable to
diagnose Wallace with any type of mental infirmity and testified
that Wallace had been aware of his actions. His only explanation for
Wallace's conduct was that "there must've been something that went
wrong in [his] mind."
Couser argued briefly for leniency.
He mentioned Wallace's "chaotic upbringing" in passing, but focused
on Wallace's history of heavy drug use and the possibility that he
had dissociated during the murders. The court found one aggravating
factor applicable to all the murders: that they were committed under
especially heinous, cruel or depraved circumstances.
As to Susan Insalaco, the court
also found that her murder was committed for pecuniary gain (theft
of the liquor money), another aggravating circumstance. With barely
a mention of Wallace's mental health, the court found one mitigating
circumstance, Wallace's remorse. However, it found this didn't
outweigh the aggravating circumstances, and sentenced Wallace to
death on all three murder counts.
George Curtis took over as counsel
on appeal. He persuaded the Arizona Supreme Court to reverse the
pecuniary gain aggravating circumstance and to modify the trial
court's findings on the "cruel, heinous or depraved" aggravating
circumstance. The court remanded for resentencing with respect to
the mother's murder, but affirmed with respect to the murders of the
children. See State v. Wallace, 728 P.2d 232 (Ariz. 1986).
Thus, the stakes at Wallace's
resentencing were relatively low: Because two of Wallace's death
sentences remained in place regardless of the remand, Curtis could
not spare his client the death penalty, no matter how persuasive a
showing he made as to the murder of the mother.
At resentencing, Curtis presented
the testimony of a new psychiatrist, Dr. David Gurland. Curtis
provided Gurland with police reports and Dr. Bendheim's testimony
but gave him no information about Wallace's background or family
history. Gurland later claimed that he spoke with Wallace's brother
while preparing his diagnosis, but Wallace does not have a brother.
Gurland testified that Wallace was in a dissociative state at the
time of the murders, and hypothesized that Wallace's psychological
problems were rooted in part in his mother's early death, but
Wallace's mother is still alive.
Beyond this flawed account, no
witness discussed Wallace's background in significant detail at the
hearing. Gurland concluded that Wallace was not able to fully
appreciate the wrongfulness of his actions or to conform his conduct
to the requirements of law--a mitigating circumstance under Ariz.
Rev. Stat. S 13-703(G)(1). Drs. Hinton and Morenz concluded
otherwise, testifying for the government that Wallace had not been
dissociated at the time of the murders. The court again sentenced
Wallace to death, and this time the Arizona Supreme Court affirmed.
See State v. Wallace, 773 P.2d 983 (Ariz. 1989).
B. Because Wallace admitted
committing the murders and pleaded guilty, the only question left
for trial was Wallace's sentencing. Exploring the defendant's mental
state and other potential mitigating factors was clearly a central
task for his counsel. Yet Wallace's lawyers devoted remarkably
little time to this task.
Of the 45.9 hours Couser spent on
Wallace's case, he spent 36 minutes conferring with Dr. Bendheim,
and only 1.4 additional hours talking to other prospective witnesses
for the sentencing hearing. He did not provide Bendheim with the
MMPI results and he did not investigate what Drs. Little and Morenz
referred to as Wallace's "very chaotic childhood." This information
was easilywithin his reach: Wallace's three sisters have since
signed affidavits saying they would have willingly provided
information about Wallace's childhood and testified on his behalf,
yet Couser never contacted them.
Curtis spent 45.25 hours preparing
for Wallace's resentencing, including only about an hour
interviewing witnesses. In his own words, he "conducted no factual
investigation concerning . . . potential mitigation [ ] or the
appropriateness of the death penalty." Curtis Aff. P 4.
Had they only looked, Couser and
Curtis would have discovered a great deal about Wallace's family
history, which Dr. Bendheim now describes as "one of the most
dysfunctional family environments I have ever encountered. "
Wallace's mother was in and out of mental hospitals, diagnosed as
psychotic, alcoholic and anorexic, among other things.
On one occasion, she stabbed her
husband in the head with a butcher knife. On multiple occasions, she
tried to kill herself. She would disappear for weeks, and her
children eventually would find her hidden naked somewhere in the
house. On one particularly bizarre occasion, she resurfaced
underneath Wallace's bed, naked and kicking so hard the bed bounced
up and down.
Wallace woke up the household with
his screams. Wallace's father, a severe alcoholic, once "cold-cocked"
his wife in front of Wallace and "stomped" repeatedly on her neck.
Wallace himself sniffed glue and gasoline daily between the ages of
ten and twelve, and experienced a "clinically significant series of
head traumas" while growing up. Dr. David Lisak, who examined
Wallace in 1993, concluded that"[t]he family and home in which Jim
Wallace was raised was marred by an almost unimaginable level of
chaos, neglect, bizarre and insane behavior, and by extreme violence
between the parents."
The sentencing judge saw only
glimmers of this history, and received no evidence about its
significance vis-a-vis mitigating circumstances. Wallace has
presented affidavits from three psychiatrists explaining that
psychosis and alcoholism are genetically passed from parents to
children, and both of Wallace's parents displayed signs of major
mental health disorders.
Furthermore, children raised in
profoundly dysfunctional environments like the Wallace household are
prone to develop severe psychiatric disturbances. Indeed, the
evidence now shows that Wallace suffers from a "major depressive
disorder" and, most probably, organic brain damage.
The doctors who testified both for
and against Wallace now agree that their diagnoses were at least
incomplete. Dr. Bendheim believes the information about Wallace's
family background "would . . . have been of vital importance" to his
diagnosis, and the "extreme[ly] importan[t]" MMPI results could have
had a "substantial[ ] impact[ ]." Dr. Gurland based his testimony
primarily on Bendheim's original, admittedly incomplete, analysis.
Even the government's experts agree.
Dr. Hinton characterizes Wallace's
background as "extremely important" information, and now says he "would
have, at the very least, recommended that a full competency
examination of Mr. Wallace be conducted." Dr. Morenz now believes
that Wallace suffers from multiple mental disorders, and that at the
time of the murders, "Wallace's capacity to conform his conduct to
the requirements of the law was significantly impaired."
In sum, had these experts known
the details of Wallace's family background, the substance and tone
of the sentencing hearings would have been significantly different.
Which brings us to the heart of the issue here: Does an attorney
have a professional responsibility to investigate and bring to the
attention of mental health experts who are examining his client,
facts that the experts do not request? The answer, at least at the
sentencing phase of a capital case, is yes.
The facts here are similar to
those in a recent case where we remanded for an evidentiary hearing
on the question of ineffective assistance of counsel at the penalty
phase. In Caro v. Calderon, 165 F.3d 1223 (9th Cir. 1999), we stated
that "[i]t is imperative that all relevant mitigating information be
unearthed for consideration at the capital sentencing phase." Id. at
There, defense counsel knew that
the defendant had been abused as a child and exposed to neurotoxic
chemicals throughout his life. However, the lawyer did not seek out
neurochemical experts or even provide the examining doctors with the
information he had about the defendant's background. Upon learning
the full extent of Caro's background, one examining doctor declared
that had he known it earlier, he would have testified that the
defendant had diminished mental capacity. See id. at 1226.
Although the lawyer's failure to
develop and relay medical evidence did not constitute ineffective
assistance at the guilt phase, we concluded that sentencing--where
mitigation evidence may well be the key to avoiding the death
penalty--is different. See id. at 1227. We explained that,
[c]ounsel have an obligation to
conduct an investigation which will allow a determination of what
sort of experts to consult. Once that determination has been made,
counsel must present those experts with information relevant to the
conclusion of the expert . . . . A lawyer who knows of but does not
inform his expert witnesses about . . . essential pieces of
information going to the heart of the case for mitigation does not
function as `counsel' under the Sixth Amendment.
Wallace's situation also bears
some similarity to two recent cases where we affirmed findings of
ineffective counsel at the penalty phase. At the sentencing hearing
in Clabourne v. Lewis, 64 F.3d 1373 (9th Cir. 1995), Clabourne's
lawyer relied on the trial testimony of one psychologist, and
inadequately cross-examined the State's psychologists. See id. at
However, he had barely prepared
his own psychologist for his trial testimony, and had provided him
with scant information about the defendant and his background. See
id. Norhad the lawyer provided the State's psychologists with
statements and records that would have helped them profile the
defendant's mental health accurately. See id. at 1385. Clabourne's
lawyer was also Lamar Couser. See id. at 1376.
In Hendricks v. Calderon, 70 F.3d
1032 (9th Cir. 1995), we concluded that the defense lawyer had
reasonably relied on psychologists' findings in not pursuing a
mental defense at trial. See id. at 1037-39. Even though the
psychologists lacked important information about Hendricks's drug
problems and hard childhood, we held that counsel's failure to
investigate and relay this information was not deficient because the
psychologists had not asked for it. See id. at 1038.
At the penalty phase, however,
this same lack of diligence did constitute ineffective assistance.
Recognizing that "[e]vidence of mental problems may be offered to
show mitigating factors in the penalty phase, even though it is
insufficient to establish a legal defense . . . in the guilt phase,"
we said that "where counsel is on notice that his client may be
mentally impaired, counsel's failure to investigate his client's
mental condition as a mitigating factor in a penalty phase hearing,
without a supporting strategic reason, constitutes deficient
performance." Id. at 1043.
To descend to the level of
ineffective assistance of counsel, a lawyer's performance must be
poor indeed. Yet, Caro, Hendricks and Clabourne establish that, at
the penalty phase of a capital case, a failure to investigate or to
adequately prepare expert witnesses may sink to that level.
Based on the affidavits he
presented, Wallace has made out a prima facie case that Couser and
possibly Curtis were less than competent at sentencing.
It's true that the experts who examined Wallace didn't ask Couser or
Curtis to investigate his background further.
However, Hendricks holds that this does not relieve the attorneys of
their duty to seek out such evidence and bring it to the attention
of the experts.
Because there was no hearing, the
State did not have an opportunity to cross-examine Wallace's
affiants, or to present evidence of its own. Nor, of course, did the
district court make any findings. However, were the district court
to accept all of Wallace's evidence, it could find that Wallace's
lawyers were ineffective, and conclude that "there is a reasonable
probability that the death sentence would not have been imposed" had
they been effective. Hendricks , 70 F.3d at 1044. We therefore
remand for an evidentiary hearing and findings as to whether Couser
and Curtis were ineffective and, if so, whether Wallace was
prejudiced as a consequence.
C. Wallace also argues counsel
were ineffective at the guilt phase, a much tougher sell given Caro
and Hendricks. Wallace hasn't presented or even suggested enough
evidence to show that he lacked the mental capacity to stand trial,
or that he could have raised a credible insanity defense. Although
Dr. Hinton now says he would have recommended a full competency
hearing had he known more about Wallace's background, he didn't
request more information at the time of the examination. Under
Hendricks, Couser's failure to produce the information doesn't
constitute ineffective assistance.
Wallace argues the trial court
erred by not ordering a pretrial competency hearing. The court was
entitled to rely on Dr. Hinton's original recommendation that
Wallace was fit tostand trial. Further, the evidence before the
trial court here resembles the evidence before the court in de
Kaplany v. Enomoto, 540 F.2d 975 (9th Cir. 1976) (en banc), where we
held it was not error to fail to hold a competency hearing.
Wallace raises a number of other
claims related to his sentence. Most are specious, but several do
pose somewhat difficult questions. Should the ultimate result on the
ineffective assistance claim be that the State must hold a new
sentencing proceeding, it would be unnecessary to decide any of
these other claims. We therefore do not reach them at this point.
Should Wallace ultimately fail as to his ineffective assistance
claim, we shall reinstate these claims and decide them then.
We REVERSE the district court's
judgment as to ineffective assistance of counsel at the sentencing
phase and REMAND for an evidentiary hearing on that claim. We AFFIRM
on the remaining portion of the ineffective assistance claim and on
the competency hearing claim.
James G. Wallace