By Ruth Brown, Idaho Reports
Just seven days after the governor signed into law a bill legalizing the use of the firing squad for executions, a federal judge issued an order harshly criticizing the counsel of the only woman on Idaho’s death row.
Idaho U.S. District Judge B. Lynn Winmill issued an order on March 31 in the case of Robin Row, dismissing her appeal but not before taking aim at the state’s system of justice for death penalty cases.
Row is on death row after being convicted of the 1992 murders of her husband, Randy Row, and young children Joshua and Tabatha Cornellier. She was accused of intentionally setting fire to their Ada County duplex while all three people were inside to collect life insurance proceeds.
In Winmill’s 63-page order, he harshly criticized Row’s counsel and the way the state prosecutes the death penalty.
The case claimed Row’s Sixth Amendment constitutional rights were violated by ineffective counsel at both her sentencing and post-conviction relief hearings. It claims Row had brain disfunction, found on brain scans, at the time of sentencing and her attorneys failed to address it as a mitigating circumstance of the murders.
The arguments focus on the U.S. Supreme Court ruling in Shinn v Martinez Ramirez, which found in a 6-3 vote in 2022 that the federal court could not allow new evidence to be considered in a case, or grant a new evidentiary hearing, based on ineffective postconviction counsel. The Supreme Court’s decision reversed a Ninth Circuit Court of Appeals decision.
Previously, the Idaho Supreme Court determined that Row had waived several new claims of ineffective assistance of trial counsel for failing to adequately investigate her alleged brain damage.
Trial counsel did not consider the need for a neurological or neuropsychological investigation, despite the references to a CT scan in the police report, according to Winmill’s order.
“…state court records alone show that trial counsel performed deficiently at the investigatory stage of the sentencing phase proceedings. However, without being able to use the evidence developed in the procedurally improper successive post-conviction petitions and in the federal habeas evidentiary hearing, Row cannot show prejudice,” Winmill wrote.
The order outlines repeated failures throughout the 1990s by her then-counsel to consult with a neuropsychologist or obtain expert witnesses on the matter.
Winmill wrote that case clearly fits the description of case that should see remedy. “However, under the current state of the law, the Court can do nothing to provide a remedy to (Row). This is a direct consequence of Idaho’s shortsighted and sometimes inadequate system of expedited justice for death penalty cases.”
“And now we have the Supreme Court’s decision in Ramirez – holding that, under (the Antiterrorism and Effective Death Penalty Act of 1996), the Petitioner has no federal remedy for a violation of her constitutional rights, even when her state court attorneys were shockingly inept and ineffective,” Winmill wrote. “Thus, in this case the “great writ” is reduced to a meaningless exercise in futility.”
“With great reluctance,” Winmill dismissed the case with prejudice.
In March, the Idaho Legislature passed a bill to bring back the firing squad as a legal form of execution, to further allow the Idaho Department of Correction to carry out executions.
Deborah Czuba, supervising attorney for the Capital Habeas Unit of Federal Defender Services of Idaho, issued the following statement on Tuesday afternoon.
“Ms. Row has been under a sentence of death since 1993. She was not sentenced to death by a jury, as would be constitutionally required today, but rather a single judge. She since has had multiple health issues that make it difficult for her to walk and sometimes lead to confusion. She has been a model inmate who is well liked by staff at the prison.
“In October 2021, the federal district court signaled that it intended to grant Ms. Row a new sentencing hearing due to the ‘shockingly inept and ineffective’ performance of her state court attorneys. Their mistake was the failure to present a traumatic brain injury that likely occurred when Ms. Row was in utero or in her early development.
“However, due to a superseding change in law that prevented it from considering the ineffectiveness of prior counsel, the federal court this week ‘with great reluctance’ denied Ms. Row a new sentencing hearing. While doing so, the court recognized that Ms. Row has suffered a clear violation of her constitutional rights and criticized ‘Idaho’s shortsighted and sometimes inadequate system of expedited justice for death penalty cases.’ We intend to appeal Ms. Row’s case to the 9th Circuit Court of Appeals, which we hope will find a path to give Ms. Row the relief that she clearly deserves,” wrote Czuba.