On Monday, February 27, the Supreme Court of the United States rejected an appeal by the Commonwealth to a limited grant of a petition for a writ of habeas corpus. On June 3, 2005, the Supreme Court of Virginia, in a 4-3 decision, reversed a sentence of death and remanded the case to the trial court for resentencing, in light of a misleading jury instruction in the penalty phase of trial. In that ruling, Morrisette v. Warden, the Virginia court determined that the jury should have been instructed that it could sentence the defendant to death or life in prison if it found the sentencing predicates for the death penalty (vileness or future dangerousness). The instruction as actually submitted did not give the jury the choice once it found the proper predicates.

In June, the Virginia court found that Morrisette’s trial lawyer had provided ineffective assistance by failing to object to the patently incorrect instruction. The challenge is based on the US Supreme Court’s 1984 decision in Strickland v. Washington, which provides for a two-step process in evaluating ineffective assistance claims. The first prong requires that the petitioner show that the assistance he received fell below the accepted standard for an attorney’s performance. The second prong requires that the petitioner show that the ineffective assistance prejudiced him in his defense. In June’s decision, Justice Kinser, joined by Justices Lemons and Agee, dissented, arguing that the defendant had not demonstrated the requisite prejudice.

Today’s action by the high court comes without comment, as is usual for denials of certiorari. It means that Morrisette, having been convicted of capital murder, has one additional chance to ask a jury to spare his life.