Reversal of Death Sentence Is Upheld

A federal appeals court ruled Wednesday that a Fullerton man convicted of a 1982 Orange County murder should not be executed because he received constitutionally deficient representation at the penalty phase of his trial.

The U.S. 9th Circuit Court of Appeals in San Francisco, overturning a 1996 California Supreme Court decision, said that John Visciotti, 45, should be given a term of life without possibility of parole or a new sentencing hearing.

Wednesday’s ruling marked the ninth time since November that the 9th Circuit has either reversed a death sentence or upheld the decision of a federal trial judge who had overturned a death sentence.

In this instance, the court affirmed a decision of U.S. District Judge Manuel Real, who found that Visciotti’s trial counsel, Roger J. Agajanian, provided ineffective assistance by failing to adequately investigate or present mitigating evidence that could have led to a life sentence.

The 9th Circuit ruling was unanimous, with U.S. Circuit Judge Harry Pregerson, one of the three judges, contending that Agajanian’s performance was so bad that the guilty verdict should also have been overturned.

Visciotti was convicted in 1983 of fatally shooting Timothy Dykstra and seriously wounding Michael Wolberg in a robbery that netted $120. Visciotti and co-defendant Brian L. Hefner left the two men in Santiago Canyon southeast of Orange after Visciotti shot them with a gun Hefner provided, according to trial testimony. Wolberg, who lost sight in his left eye, was the key witness against Hefner and Visciotti in separate trials. Hefner received a life sentence.

Orange County prosecutors sought the death sentence against Visciotti, citing the fact that he was the triggerman, several years older than Hefner and had a criminal record, including having served three years in prison after pleading guilty to stabbing a man in 1978.

When he sentenced Visciotti to death in October 1983, Orange County Superior Court Judge Robert R. Fitzgerald said, “It’s my greatest hope, sir, that you will actually be executed, and if it would happen soon, I would enjoy that.”

On Wednesday, Pregerson, joined by Judges A. Wallace Tashima and Marsha S. Berzon, described several bad moves by Agajanian at the penalty phase that warranted overturning the death sentence. The judges said Agajanian, among other things, failed to investigate and discover mitigating evidence, gave a rambling closing argument that undercut his client’s case, and failed to tell the jury about psychological and physical abuse Visciotti suffered as a child.

Visciotti had a troubled upbringing in a violent family, started using drugs at age 8, and was in and out of Juvenile Court.

The 9th Circuit said Agajanian did not heed the advice of two court-appointed psychiatrists that Visciotti should get further psychological testing because his numerous head injuries might have caused brain damage.

Agajanian told one of the doctors that he was “not willing to take the time for or to pay for” additional investigation, even though Agajanian later said he thought a court would find that Visciotti could not pay for counsel or expert witnesses and therefore could get them at government expense.

In addition, Pregerson wrote, Agajanian inaccurately portrayed “Visciotti as the one ‘bad seed’ in his family” rather than as a victim of serious abuse. “Perhaps most importantly,” the judge said, Agajanian’s closing argument gave the jurors “no reason not to impose the death penalty.”

The 9th Circuit panel concluded: “There is a reasonable probability that the omitted evidence would have changed the [jury’s] conclusion that the aggravating circumstances outweighed the mitigating circumstances and hence, the sentence imposed.”

In its ruling Wednesday, the 9th Circuit disagreed with two previous decisions of the California Supreme Court, which had upheld the death sentence. In 1996, the state high court acknowledged “multiple failings” by Agajanian but said that even if the lawyer had presented additional mitigating evidence, “it is not probable” there would have been a different result.

Two state Supreme Court justices, Stanley Mosk and Janice Rogers Brown, issued dissents at the time that used even stronger language than the 9th Circuit did Wednesday. Agajanian’s closing argument at the penalty phase was “worthless,” Mosk wrote. Brown said, “Agajanian’s abysmal across-the-board performance rendered the penalty phase of the trial a complete and utter farce.”

The 9th Circuit said the California Supreme Court majority had been flatly incorrect in the standard it applied for what a defendant had to show to prevail on a claim of ineffective assistance of counsel.

Under a 1984 U.S. Supreme Court decision, Strickland vs. Washington, to prevail on a claim of ineffective assistance of counsel, an inmate must demonstrate that his trial lawyer’s performance was well below professional norms and that there was a “reasonable probability” that the deficient performance prejudiced the outcome.

“The California Supreme Court’s decision was ‘contrary to’ Supreme Court law because it mischaracterized Strickland’s prejudice standard,” Pregerson wrote. “Instead of evaluating whether there was a reasonable probability that, absent Agajanian’s deficient performance, the result of the proceedings would have been different, the California Supreme Court evaluated whether a more favorable result was probable absent Agajanian’s deficient performance.”

Deputy federal public defender Statia Peakheart said she and her co-counsel, William H. Forman, were “extremely happy for Mr. Visciotti. His trial lawyer did not represent him to any sort of proper standard.”

Gary W. Schons, senior assistant attorney general, said, “We are disappointed by the outcome.” He said “there is a strong likelihood” that the state will ask the 9th Circuit to rehear the case with a larger panel of judges.

For his part, Agajanian said he did not think his performance was constitutionally deficient. But he added that as he does not believe in the death penalty, he was happy for Visciotti. After the Visciotti case, Agajanian was suspended three times from the State Bar of California, and in 1994 voluntarily resigned from the bar, according to bar spokesman Marlon Villa. Agajanian was readmitted last year.