Home / Opinion Digests / Criminal Practice / Criminal –  Death row inmate receives reprieve

Criminal –  Death row inmate receives reprieve

The 4th U.S. Circuit Court of Appeals said the state court erred in not allowing an expert for a convicted murderer to testify on the probability of the defendant committing future violent acts in prison, which went directly to the dangerousness aggravator the jury relied on to sentence him to death. The exclusion of evidence and other factors were not harmless error.


In February 2011, Mark Eric Lawlor was convicted on two counts of capital murder. After both sides presented testimony and witnesses at the penalty phase, the jury found that both the vileness aggravator and future dangerousness aggravator were present, and it returned a death sentence on each of the two murder counts.

Lawlor appealed to the Supreme Court of Virginia, arguing that the trial court erred by excluding testimony of an expert witness (Dr. Cunningham) who would have explained that Lawlor represented a very low risk for committing acts of violence while incarcerated. The court upheld the trial court’s rulings regarding Dr. Cunningham, explaining that, as used to rebut the future dangerousness aggravator, “evidence concerning [Lawlor’s] probability of committing future violent acts, limited to the penal environment, is not relevant.” It affirmed the convictions and death sentence.

The United States Supreme Court denied certiorari. On Dec. 16, 2013, Lawlor filed a state habeas petition, which did not raise the expert testimony issue. The state habeas court dismissed the petition on Oct. 31, 2014.

Lawlor then timely filed a federal habeas petition. The district court referred the petition and motion to a federal magistrate judge. That judge recommended denying the motion and dismissing the petition. The district court adopted the magistrate’s recommendation, dismissed the petition with prejudice and declined to issue a certificate of appealability


A defendant must be permitted to introduce evidence of past good behavior in prison to aid the sentencing body in predicting probable future behavior and conduct. It is likewise clearly established that the sentencing body should be presented with all possible relevant information to enable it to make a prediction about a defendant’s probable conduct in prison. Finally, it is well established that expert testimony regarding probable conduct in prison is not per se inadmissible.

The Supreme Court of Virginia did not ignore these precepts. However, it rejected Lawlor’s appeal on three grounds: irrelevance of prison society, inadmissibility of prison conditions and inadmissibility of characteristics, not character. These rationales are contrary to both state law and clearly established Supreme Court law.

The Virginia Supreme Court has held, “[t]o be admissible, evidence relating to a prison environment must connect the specific characteristics of the particular defendant to his future adaptability in the prison environment,” and that is precisely what Dr. Cunningham sought to do here. Because the state court misconstrued Virginia law and contravened clearly established federal law, the commonwealth cannot escape the directive of Skipper v. South Carolina, 476 U.S. 1, 5 (1986) by relying on its erroneous classification of “society.”

The red herring infecting all stages of this case is the idea that prisoners may not present evidence of prison conditions or security measures as mitigating evidence in the face of a jury’s choice between life in prison without parole and the death penalty. Lawlor has never attempted to introduce generalized evidence of “conditions of prison life” as the Virginia courts have defined them. We therefore reject this rationale in the Virginia Supreme Court’s decision.

Finally, the Virginia Supreme Court reasoned that because “characteristics alone are not character,” and “evidence [must] be ‘peculiar to the defendant’s character, history, and background,’” This analysis is contrary to clearly established Supreme Court law and finds no home in Virginia law. For these reasons, and those noted above, the district court erred in concluding that the state court did not unreasonably apply clearly established federal law.

The trial court’s exclusion of Dr. Cunningham’s evidence, constant declaration that society in prison is irrelevant and failure to fully and correctly answer the jury’s questions leaves this court with “grave doubt” that the error was harmless. Therefore, granting relief is appropriate in this case.

Reversed and remanded.

Lawlor v. Zook (Lawyers Weekly No. 001-167-18, 37 pp.) (Thacker, Stephanie, J.) Case No. 17-6, Nov. 27, 2018, from E.D. Va. at Norfolk (Davis, Mark Steven, J.). Timothy Patrick Kane for Appellant, Matthew P. Dullaghan for Appellee.

Leave a Reply

Your email address will not be published. Required fields are marked *