Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Advanced Search Go
Free Newsletter Sign Up

Death Penalty OK Though Jury Not Told of Accused’s Brain Damage

July 23, 2020, 1:49 PM

A Texas woman found guilty of capital murder and sentenced to death lost a bid to overturn her conviction, after the Fifth Circuit said she failed to show ineffective assistance of counsel.

The failure of Erica Sheppard’s attorney to call family members to testify about her abusive and traumatic upbringing, or to seek a comprehensive psychiatric diagnosis of Sheppard, didn’t constitute ineffective assistance, the court said.

It was sufficient that her attorney had a psychiatrist evaluate her sanity and competence, and testify that she suffered from depression and mood swings and heard voices in her head, the court said.

Evidence that she suffered from brain damage and her low cognitive ability would have been merely cumulative, the court said.

And while Sheppard’s counsel failed to object to an erroneous instruction given before the start of the punishment phase that each party to an offense “should be equally responsible as to punishment,” the court said the instruction was harmless.

The failure to object to the prosecutor’s comments about the possibility that the legislature could change the parole rules going forward were also harmless because the prosecutor clarified that the parole law is not for their consideration, the court said.

Sheppard, who is Black, also asserted that the state violated her equal protection rights when the prosecutor struck a Black venire member.

Though Sheppard argued the juror was impermissibly struck because of his race, the prosecutor asserted that the juror may have empathized with Sheppard because he was a victim of false arrest. There is no indication that this reason was pretextual, the court said.

Judge Jerry E. Smith wrote the majority opinion, joined by Judge Catharina Haynes.

Judge Carolyn Dineen King, in a dissenting opinion, said Sheppard’s trial counsel provided ineffective assistance by failing to present evidence that Sheppard had significant mental and psychological impairments.

Trial counsel failed to call expert witnesses who could have testified that Sheppard had the cognitive ability of a 14-year-old and that she suffered from organic brain dysfunction, posttraumatic stress disorder, and dissociative disorder, King said.

As a result, King said, “Sheppard was sentenced to death by a jury that did not know that she has brain damage and the cognitive ability of a fourteen-year-old. And the jury heard only isolated snippets of the extensive abuse and trauma that she suffered throughout her life.”

Kilpatrick Townsend & Stockton LLP represented Sheppard on appeal.

The case is Sheppard v. Davis, 5th Cir., No. 18-70011, 7/22/20.

To contact the reporter on this story: Peter Hayes in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Patrick L. Gregory at