David Leroy Washington

Case record: David Leroy Washington

Background

David Leroy Washington was a petitioner-appellant in capital proceedings that culminated in execution in Florida by electrocution on June 13, 1984. The case of David L. Washington led to the U.S. Supreme Court’s decision on the quality of counsel guaranteed to indigent inmates.

The offence

During a ten-day period in September 1976, Washington committed a series of crimes across Dade County, Florida. The series included torture, kidnapping, and three murders.

On September 20, 1976, Washington and an accomplice stabbed to death a minister, David Pridgen.

Three days later, Washington broke into the house of Mrs. Katrina Birk. After binding Mrs. Birk and her three elderly sisters-in-law, Washington shot and stabbed each of them, killing Mrs. Birk and inflicting severe injuries upon the others.

On September 29, Washington kidnapped Frank Meli, a twenty-year-old college student, and tied him to a bed with the help of two accomplices. After an attempt to extort ransom money from Meli’s family failed, Washington stabbed him to death.

The opinion described each of these criminal episodes as involving a substantial degree of preparation and theft.

Investigation

Washington surrendered to Dade County police on October 1, 1976, after his two accomplices were arrested for the murder of Frank Meli. He voluntarily confessed to the crime in a lengthy statement to the police.

Trial

Washington was indicted for the Meli murder on October 7, 1976. William Tunkey, an experienced criminal lawyer, was appointed as Washington’s attorney.

On November 5, Washington—acting against Tunkey’s advice—confessed to the Pridgen and Birk murders. Additional indictments were returned, and Washington’s trial was set for December 1 before Judge Richard Fuller.

Washington waived his right to a jury trial and, again acting against Tunkey’s advice, pleaded guilty to all charges when he appeared before Judge Fuller. During the plea colloquy, Washington stated that he did not have a significant prior criminal record and explained that his actions resulted from extreme stress and anxiety due to his unemployment and corresponding inability to provide for his family. He also stated that he accepted responsibility for his crimes.

Judge Fuller responded that he had “a great deal of respect for people who are willing to step forward and admit their responsibility.”

Washington waived his right to have a sentencing jury.

Sentencing

At the special sentence hearing required in capital cases, Tunkey adopted the testimony that Washington had given during the plea colloquy and argued that Washington’s remorse and willingness to face the consequences should persuade the court to impose life imprisonment rather than death.

Tunkey moved to exclude Washington’s “rap sheet” from evidence.

At sentencing on December 6, the judge specifically found that even if Washington had no significant prior criminal record, the aggravating circumstances of the case would still “clearly far outweigh” the factors in mitigation. Washington was sentenced to death on each of the three counts of first degree murder. He was also sentenced to consecutive terms of imprisonment for the other crimes.

The death sentences were upheld on direct appeal in Washington v. State, 362 So.2d 658 (Fla.1978), and certiorari was denied, 441 U.S. 937 (1979).

Prosecutor’s remarks at sentencing (verbatim appendix)

MR. GERSTEIN: Does Your Honor desire to hear from the State first? THE COURT: Yes, sir.

MR. GERSTEIN: If Your Honor please, this is a case in which capital punishment, the death penalty, is as warranted as any factual situation that will ever appear before Your Honor and is warranted under the statute setting aggravated circumstances as any situation that will ever appear before Your Honor. This defendant has left in his wake a trail of human destruction involving three dead persons, a woman who is partially blinded, another woman who is in a coma and who, according to the medical testimony, will be nothing more than a vegetable. He has left a series of people shot and stabbed while he carried out murder and robbery and kidnapping. When the People of the State of Florida, through their elected representatives, established the death penalty, it certainly was with this kind of crime in mind. Nothing occurs to me that would adequately punish this series of events other than the death penalty. In recent days, we have seen the media give a great deal of attention to the plight of persons who face the death penalty. We have seen relatively little attention given to the plight of victims and their families. It is especially true in this situation. I was especially moved by the circumstances involving the final victim, who was a young student, some twenty years of age, who was working his way through college by holding down two jobs, who had planned to become a tax lawyer, who was helping to support his family, who had been left without a father because his father was killed in the service of his country overseas. He became the last victim in a chain of horror stories that has rarely been exceeded in this community and he became the last victim as a result of the defendant's total greed. There is a portion of the confession in connection with the stabbing and killing of Frank Meli that is horrendous. The question is posed to the defendant, "When you say you put a pillow over his face, what for?" The answer is "He--" referring to Meli, "--when we got into it, he just start hollering when I stabbed him. When I stabbed him, that's when he started hollering. Then he just kept on hollering. Then when he stopped hollering, he just start moaning real loud. Then he start saying the Lord's Prayer. Said it three or four times, over and over." It comes from page 15 and 16 of the defendant's statement. It seems to me, Your Honor, that of the aggravating circumstances set out in the statute, six of the eight aggravating circumstances would apply to the final homicide, to the one from which that statement in the confession is taken. The defendant himself concedes through counsel that two of the aggravating circumstances apply to all of them; that's conceded; that is that all three killings were during the commission of robberies or kidnapping, that they were for money. We respectfully submit that Meli was killed to keep him from identifying his assailants, to frustrate the enforcement of the law, since there would be no identity; that it was especially cruel and heinous and atrocious. I have examined the mitigating circumstances and I don't find one within the statute that would warrant any sympathy, any consideration, any leniency, any mercy from Your Honor or from anyone else. I don't know what we can do to stop this kind of thing in this community but I do know that the people of this State have enacted a law that calls for capital punishment, the death penalty, in certain instances and in certain crimes. I do know that it is high time that we had some of the same concern for the victims of crime and their families that we continually exhibit for defendants in this State and in this country. No one is going to compensate the victim of this crime or his family and there is little that we can do except to see to it that there is some justice and we can do that by seeing to it that the death penalty is assessed in this case.

THE COURT: Mr. Tunkey?

MR. TUNKEY: Your Honor, just briefly.

• MR. GERSTEIN: May I in rebuttal respond very briefly?

• THE COURT: I will hear it. If you want to make further comment, Mr. Tunkey, I will hear you.

MR. GERSTEIN: Mr. Tunkey says that the People of the State of Florida have never voted for capital punishment. I don't know how the people of this state establish laws other than through their elected representatives, since we do not submit our laws to public referendum before they are enacted. They are enacted through elected representatives. I won't attempt to play God and say whether or not there is a spark of anything that's decent within this defendant, save to express my firm conviction to Your Honor that if there is a spark of anything that is decent within him, he has not exhibited it at any time in any of the things that have been related to this Court. There is nothing of human decency that was exhibited at any time by him. And further, I have listened carefully to Mr. Tunkey as he speaks of the hopes and aspirations of this defendant, and I reiterate to Your Honor what about the hopes and the aspirations of the victims and their families? I don't know what the future will hold. I don't know whether the law that says this defendant cannot be paroled within 25 years will always be the law in this state. I don't know what this defendant will do in prison. But I do know that the people have provided one form of punishment that is the appropriate punishment, and the only appropriate punishment for these crimes.

Appeals

Washington challenged his death sentence through direct appeal and post-conviction proceedings.

On direct appeal, the death sentences were upheld in Washington v. 937 (1979).

Post-conviction relief in state court

In March 1980, now represented by different counsel, Washington moved for post-conviction relief in state circuit court under Fla.R.Crim.P. 3.850, focusing on Tunkey’s failure to investigate fully and develop character evidence for the sentencing stage.

Washington attached fourteen affidavits from friends, relatives, and acquaintances who stated they would have testified if his attorney had requested them. He also attached reports from two psychiatrists stating that “while [ Washington ] was not under the influence of extreme mental or emotional disturbance, he was chronically frustrated and depressed because of his economic dilemma wherein he was unable to find employment and provide for his wife and children.”

The Florida circuit court denied the motion without holding an evidentiary hearing. It found Washington had failed to satisfy the test for ineffective assistance of counsel established in Knight v. State, 394 So.2d 997 (Fla.1981), including that the failure caused prejudice in the sense of a likelihood that the deficient conduct affected the outcome.

On appeal, the Florida Supreme Court affirmed, finding that “the appellant has failed under the Knight criteria to make a prima facie showing of substantial deficiency or possible prejudice and has failed to such a degree that we believe, to the point of moral certainty, that he is entitled to no relief under rule 3.850.” Washington v. State, 397 So.2d 285, 287 (Fla.1981).

Federal habeas proceedings and Strickland-related litigation

After exhausting state remedies, Washington sought federal habeas corpus relief under 28 U.S.C. Sec. 2254, again attacking Tunkey’s preparation for the sentencing phase.

At an evidentiary hearing, Tunkey testified that after Washington confessed, he experienced a feeling of “hopelessness” regarding the case and believed there was little chance of Washington avoiding the death penalty. Tunkey testified he chose to introduce evidence of Washington’s emotional distress only during the plea colloquy and then rely primarily on persuading the judge of Washington’s sincerity and frankness in pleading guilty.

Tunkey testified he made little attempt to develop evidence of Washington’s emotional distress beyond conversations with Washington in connection with his plea colloquy, including not following up with Washington’s wife and mother after they failed to keep appointments, and not requesting a presentence report or psychiatric investigation because he anticipated they might reveal information more harmful than helpful.

Judge Fuller testified on behalf of the state.

The district court, while finding an “error in judgment” in failing to investigate thoroughly, concluded Washington was not prejudiced based on Judge Fuller’s testimony.

An en banc appeal addressed standards for ineffective assistance of counsel and prejudice. The case returned to the Supreme Court as Strickland v. Washington, 466 U.S. 668 (1994), which articulated the guiding principles for the constitutional right to effective counsel for indigent defendants.

The U.S. Supreme Court determined that neither of the newly set standards was violated and that Attorney Tunkey’s performance was not inept; Tunkey had deliberately chosen not to use psychiatric evidence and a presentence report for fear they would hurt rather than help Washington’s plea for mercy. The Court also noted that the aggravating circumstances were “overwhelming” and that the omitted evidence might not have saved Washington from death row.

Outcome

Washington’s death sentence stands. He was executed by electrocution in Florida on June 13, 1984.

In his final statement, Washington apologized to the victims’ survivors, saying: “I'm sorry for all the grief and heartache I have brought to them. If my death brings any satisfaction, so be it.”

Other details

Additional factual dispute described in the federal litigation

The federal proceedings addressed the question whether Tunkey’s failure to present additional character and psychiatric evidence constituted ineffective assistance and, if so, whether Washington suffered prejudice.

Judge Vance’s en banc opinion emphasized that in some circumstances a strategic choice makes unnecessary a certain line of investigation and that the habeas petitioner must show “actual and substantial disadvantage” to the conduct of the defense.

The en banc opinion also discussed inadmissibility of portions of Judge Fuller’s testimony concerning reasons for imposing death and probable response to evidence, explaining that a judge may not be asked to testify about mental processes in reaching a judicial decision.

Additional claims reviewed in a later federal appeal

A later federal appeal described that Washington presented two claims: (1) that the death penalty in Florida was unconstitutional because it was administered in an arbitrary, capricious, and racially discriminatory fashion in violation of the Eighth and Fourteenth Amendments; and (2) that his sentencing was unconstitutional because of remarks of the prosecutor referring to victims at sentencing.

The later federal appellate disposition affirmed the denial of habeas relief and stated that the first ground was controlled adversely to Washington by Sullivan v. Wainwright and Wainwright v. Ford.

On the prosecutor-remarks claim, the appellate court stated that the prosecutor’s entire argument was attached as an appendix and noted that no exception was taken and that the sentencing judge was sitting without a jury. The appellate court concluded it could not determine that the remark was likely to have had any effect on the sentencing decision of the judge.

Supreme Court summary quotation

Justice Sandra Day O’Connor wrote for an 8-to-1 majority, formulating a two-pronged system for establishing incompetency claims, including that counsel’s performance must fall below “prevailing professional norms” and that the defendant must show a “reasonable probability” that, but for counsel’s unprofessional errors, the result would have been different.