Is ‘ineffective’ legal counsel enough to appeal a death row sentence? Idaho a test case

POCATELLO (Idaho Statesman) – The only woman on Idaho death row is seeking to have her sentence reconsidered, but a U.S. Supreme Court ruling last week has thrown her active federal appeal into question.

Robin Row, 64, was convicted of murdering her husband and two young children after setting afire their Ada County home in February 1992 to collect money from their life insurance policies. A judge handed her a death sentence, making her just the second woman in Idaho history to receive the death penalty.

Attorneys representing Row have been appealing her case ever since, now nearly 30 years after she arrived on death row. Unlike her seven male peers who are housed at the Idaho Maximum Security Institution near Kuna, Row is held at the state’s Women’s Correctional Center in Pocatello.

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Row’s current appeal before the U.S. District Court for Idaho argues that she had ineffective legal counsel, because evidence of brain damage was never introduced during sentencing. A U.S. Supreme Court decision late last month, however, is expected to make pursuing a federal appeal based on assertions of ineffective counsel much more difficult.

Essentially, the Supreme Court’s ruling in Shinn v. Ramirez — a case pertaining to two Arizona death row inmates — establishes that unless evidence of ineffective counsel is first presented at the state level, it may not be used in a federal appeal.

Justice Clarence Thomas issued the court’s 6-3 majority opinion. Justice Sonya Sotomayor wrote the dissent, stating the decision will leave many, including those facing execution, “without any meaningful chance to vindicate their right to counsel” guaranteed under the Sixth Amendment of the U.S. Constitution.

Robert Dunham, executive director of the Death Penalty Information Center, said the legal precedent set by the ruling makes it harder for wrongfully convicted prisoners to prove their innocence, and for those who unconstitutionally received the death penalty to avoid execution. The Washington, D.C.-based nonprofit takes no formal stance on the death penalty, but has been critiqued by some capital punishment proponents as supportive of anti-death penalty positions.

“In very practical terms, it means that people who were subjected to multiple unfair proceedings automatically lose,” Dunham told the Idaho Statesman in a phone interview. “When you’re trying to decide whether someone lives or dies, the single most important thing should be the truth, and you want that decision to be made on the best available evidence.”

Idaho is one of 24 U.S. states that maintain capital punishment. Three others — California, Oregon and Pennsylvania — have standing, governor-imposed bans.

Since 1998, attorneys with the nonprofit Federal Defender Services of Idaho have petitioned the federal court system on behalf of Row, after their client’s state-level appeals were exhausted. In Idaho federal district court, records show that they have argued, in part, that Row’s previous attorneys failed at her 1993 sentencing hearing to present evidence of her intellectual disabilities, which may have altered the course of her death sentence.

Gary Raney, a retired Ada County sheriff, was an arson investigator with the department in 1992, when Row’s two-story duplex burned down that February with her husband and two children inside.

Raney didn’t report the next morning to the family’s rental townhouse west of the Boise Airport thinking the incident was anything more than an accident — and certainly not a homicide, he said. But, upon inspection and interviews with Row, the pieces “started not adding up.”

Raney told the Statesman he came to learn that Row’s reason for staying with a friend the night before the early morning fire, her whereabouts at approximately the time of incident, and some newly established life insurance policies for her husband and two kids were all red flags. Investigators later found a storage unit in Meridian where Row had moved furniture and important documents before the fire, and the sheriff’s office began building its case against her.

Still early in his law enforcement career, Raney said he felt outmatched by someone he perceived to be a “psychopath.”

“I always tell people, she was well out of my league,” Raney said in a phone interview. “I was a good detective, but she was a better criminal, because she was a psychopath. She knew how to casually deal with it, six hours after her family had died.”

As he continued to investigate, Raney said he discovered Row had two previous children — each of whom also died under suspicious circumstances.

The first was a 15-month-old daughter, who died in southern New Hampshire in 1977. At the time, the toddler was said to have died from sudden infant death syndrome, or SIDS. Today, such deaths are understood not to occur beyond a child’s first year of life, according to the U.S. Centers for Disease and Prevention, and court records indicate instead that Row “very likely” killed her daughter.

Row also had a 6-year-old son, who died in a Northern California cabin fire in 1980. Row collected nearly $30,000 in life insurance money on a policy she opened on her son just a month prior, according to court records. “It is also very likely she killed her 6-year-old,” state the court records.

Row was never prosecuted for the deaths of either of her other two children. Raney said he’s confident charges would have been brought against Row in California in the case of her 6-year-old’s death if she was acquitted in Idaho.

ROW APPEALS IN FEDERAL COURT

Based on a prior 2012 U.S. Supreme Court ruling, a death row inmate’s ability to mount an appeal in federal court was affirmed in a 7-2 decision over legal arguments of ineffective counsel. Five years later, Idaho’s federal district court held a hearing for Row in 2017 based on the argument she had ineffective counsel that failed to present evidence of her brain damage.

Raney testified as a witness during Row’s federal appeal process, recalling to the Statesman that he described the convicted killer as “incredibly smart” and “very manipulative.” His characterizations conflicted with her attorneys’ attempts to show Row as cognitively impaired, based on a pair of brain scans taken prior to the 1992 house fire, which were never introduced by her prior attorneys.

“I had my professional interactions with her, the interpersonal interactions and was able to see her ability to process details very, very well,” Raney said. “But I also fully acknowledge I’m not a psychologist or psychiatrist and that there are nuances in the human brain that certainly I don’t understand, and certainly wouldn’t pass judgment on another professional’s opinion.”

In September 2021, U.S. District Court Judge B. Lynn Winmill issued a preliminary ruling that the evidence suggested her trial court attorneys “performed deficiently,” according to court records. As a result, he wrote, the case “cries out to be returned to a jury of Row’s peers to decide her fate.”

“Had Row’s brain abnormalities been presented to the trial court in a timely, comprehensive, and scientific evidence-based manner, there is a reasonable probability of a different outcome in Row’s state sentencing proceedings,” Winmill wrote in his ruling. “The decision whether to condemn a human being to die — no matter how despicable the crimes at issue — must be made free from the constraints of the outdated all-or-nothing medicolegal model.”

But two months later, Winmill granted a motion from the state seeking to delay his decision until after the U.S. Supreme Court ruled in the Ramirez case. It is not entirely clear what the Supreme Court’s decision could now mean for granting Row a new sentencing hearing.

The Idaho Department of Correction, which oversees the state’s death row inmates, deferred to the attorney general’s office, which, through a spokesperson, declined comment on pending litigation. Row’s Federal Defender Services attorneys also declined to comment.

Responses and additional legal filings from both the state and Row’s attorneys are due to Idaho’s federal district court within 60 days following the U.S. Supreme Court’s Ramirez decision.