MARYLAND/USA - Federal appeals panel reviews death row case Judges question why man didn't testify at his trial

By Gail Gibson

Originally published January 25, 2002

RICHMOND, Va. - A federal appeals panel that could determine whether Kevin Wiggins goes from death row to freedom yesterday scrutinized the state's largely circumstantial case against him in the 1988 murder of an elderly Woodlawn woman, but also pointedly asked why he didn't testify in his own defense.

The three-judge panel of the 4th U.S. Circuit Court of Appeals is reviewing U.S. District Judge J. Frederick Motz's decision last fall to void Wiggins' murder conviction and death sentence. He ruled that Baltimore County prosecutors had insufficient evidence and that Wiggins' trial lawyers had failed to adequately represent him.

If the appeals court upholds Motz's decision, it could mean freedom for Wiggins, 40, who had no criminal record and whose IQ indicated borderline mental retardation when he was charged in the 1988 killing of Florence Lacs - a crime he always insisted he didn't commit.

After his conviction in 1989, Wiggins blurted out, "I didn't do it. He can't tell me I did it." Given that, Chief Judge J. Harvie Wilkinson III questioned yesterday why Wiggins didn't take the witness stand at trial.

"He's making protestations of innocence here," Wilkinson said. While acknowledging Wiggins' right to avoid self-incrimination, the judge also said: "You would think that someone would provide an explanation of their behavior."

Defense lawyers handling Wiggins appeal said their client's low IQ and long history of abuse would have made him a poor trial witness. They argued that those factors should have been used to Wiggins' benefit at his sentencing but that trial lawyers failed to research his past and to tell jurors facts that could have helped him avoid a death sentence.

Donald B. Verrilli Jr., a Washington attorney representing Wiggins, told the appeals panel that Motz's ruling last year properly recognized those failings as well as the prosecutors' limited evidence.

A decision by the appellate court is expected by spring. Motz has ordered that Wiggins remain in prison during the appeals, saying that it would be a "cruel hoax" if Wiggins was temporarily freed, only to be jailed again if the state won its appeal.

Prosecutors say Motz went too far in his decision and argue that it is his ruling - not Wiggins' murder conviction - that should be overturned. Before the appeals panel yesterday, Assistant Attorney General Ann N. Bosse said the original verdict by Baltimore County Circuit Judge J. William Hinkel was correct and should be upheld.

 "It is the state's position that Judge Hinkel carefully went through the testimony, he discarded a number of witnesses and then drew inferences from all that was in front of him," Bosse said.

 After a bench trial in 1989, Hinkel convicted Wiggins of drowning Lacs, a 77-year-old widow who lived alone in a one-bedroom garden apartment on Woodlawn Drive. A jury then sentenced Wiggins to death. The conviction and death sentence were twice upheld by Maryland's highest court on a 5-2 vote.

 Wiggins had worked as a painter in Lacs' apartment complex on the last day she was seen alive. That night, Wiggins and his girlfriend, Geraldine Armstrong, used Lacs' car and credit cars, court records show.

 Armstrong was never charged in the case, and she testified against Wiggins at his trial. The government's case against Wiggins was largely circumstantial. Wiggins' fingerprints were not found in Lacs' apartment, although five unidentified prints were recovered.

In voiding Wiggins' conviction, Motz speculated that one or both of Armstrong's brothers, one of whom had lived in Lacs' building, might have had a role in the woman's death.

The Baltimore Sun