Robert Wayne Holsey during a death row visit with nieces and a nephew
Update (12/10/2014): Holsey was executed last night at 10:51 p.m.
Update (11/20/2014): Georgia has set a December 9 execution date for Robert Wayne Holsey; a clemency hearing is scheduled for the morning of December 8.
When people recount their alcohol consumption after a night on the town, or even a serious bender, they usually think about it in terms of drinks. Very rarely do they calibrate their intake in quarts. So most of us don't have a good sense of just how much a quart of vodka is—a bit more than 21 shots, as it turns out. That's the amount of alcohol lawyer Andy Prince consumed every night during the death penalty trial of his client, Robert Wayne Holsey, a low-functioning man with a tortured past who now stands on the brink of execution in Georgia.
When a person drinks that heavily, there's bound to be collateral damage—and for Prince and his clients the damage was profound. Once a skilled lawyer, Prince already had dug himself a very deep hole by the time Holsey went to trial in February 1997. But the signs of his downward spiral were clear 14 months earlier, back in December 1995, when a Baldwin County judge first assigned him the case. Prince had recently defaulted on a $20,000 promissory note, and Bell South and Vanguard Financial had won separate judgments against him totaling an additional $25,000. And then there was the probate fiasco: In June 1994, a client named Margaret Collins had hired Prince to handle the estate of her deceased common-law husband, which was valued at $116,000. Within a year there was almost nothing left—Prince had spent it all. He never really considered it stealing, he later insisted. He'd always intended to pay the money back when that one big civil case came along.
In an altercation with neighbors, Holsey's white lawyer wielded a gun: "Nigger, get the fuck out of my yard or I'll shoot your black ass."
His deterioration emerged in other troubling ways. In June 1996, after six months as Holsey's lawyer, Prince got into an argument with neighbors at his apartment complex, cursing at them—"Nigger, get the fuck out of my yard or I'll shoot your black ass"—and threatening them with a gun. He was a white lawyer defending a black man in the high-profile murder of a white police officer, but nowhere in the Holsey case record was there ever a suggestion that he might be unfit to handle the case. He was simply charged with two counts of pointing a pistol at another, two counts of simple assault, two counts of disorderly conduct, and, of course, public drunkenness.
For Prince, it all came back to alcohol. Three months before he wrote the first of many checks against the estate, conduct that eventually put him in prison, he was hit with a complaint from the Athens Regional Medical Center for his failure to pay more than $10,000 for an inpatient substance abuse program he'd attended in 1993. But the drinking began long before that. By 14 he already had a problem with it, and by his late 30s, he'd lost his battle with alcoholism countless times.
On one occasion, in 1988, Prince staggered into the Athens emergency room with a blood alcohol level almost four times the driving limit, declared that he'd been drunk two months running, and asked to be detoxified. He'd come in before, and, as was his pattern, he signed himself out against the advice of the attending doctors. In May 1993, he upped the ante, arriving at the ER with a near-death .346 blood alcohol level. As Thomas Butcher, a doctor at the facility, noted in his psychological evaluation:
When a very intelligent man whose professional life is spent out maneuvering and out smarting other people repetitively makes a serious judgment error based on a belief that has been repeatedly shown to be wrong, he needs to consider that it may be time for him to do some serious revision of his thinking, that is, if he wants to continue to live.
Butcher added that if Prince "made the kind of mistakes in the courtroom that he makes with his drinking he wouldn't have a professional career to worry about."
Three days after the evaluation, Prince checked out of the hospital against doctors' orders, only to return a week later for three weeks of rehab. The treatment didn't take. After two months, he was back again (acute intoxication). But Prince was nothing if not resilient. When a physician brought up his struggles—family problems, his disastrous finances, his heavy work responsibilities—Prince insisted he had them "under control." Events would soon prove otherwise.
There are enough of these cases on record that most people in the legal profession no longer find them particularly shocking.
Prince was by no means the first drunk to handle a death penalty trial. There are plenty of well-documented examples. Also of drug-addicted lawyers, lawyers who refer to their clients by racial slurs in front of the jury, lawyers who nap through testimony, and lawyers who don't bother to be in court while a crucial witness is testifying. There are lawyers who have never read their state's death penalty statute, lawyers who file one client's brief in another client's death penalty appeal without changing the names, lawyers who miss life-or-death deadlines, and lawyers who don't even know that capital cases have separate determinations of guilt and punishment. (See "10 Ways to Blow a Death Penalty Case.")
There are enough of these cases on record that most people in the legal profession no longer find them particularly shocking. What is more shocking, though, is how commonly courts and prosecutors are willing to overlook these situations as they occur, and how doggedly they try to defend the death sentences that result. Trial judges, of course, are often the ones who appointed the lawyers in question. And prosecutors have little motivation to demand that their courtroom adversaries be qualified and effective. It's a flawed system that often results in flawed verdicts. For a clear window into it, we need look no further than the Holsey case.
In the early hours of December 17, 1995, Robert Wayne Holsey was arrested and charged for the murder of Baldwin County Deputy Sheriff Will Robinson, who pulled over Holsey's car following the armed robbery of a Jet Food Store in the county seat of Milledgeville. As with any killing of a police officer, it was a high-profile affair. Most of the county's judges attended Robinson's funeral, and many sent flowers. To ensure an impartial hearing, the trial had to be moved two counties away.
Deputy Robinson's killing generated lots of local press.
Like the great majority of people arrested for serious crimes, Holsey could not afford a lawyer; he had to depend on the court to appoint one for him. But it is reasonable to wonder why any court would have chosen Andy Prince for the job. Beyond his chronic alcohol problem and the financial judgments piling up against him, Prince did not generally handle cases in the Milledgeville area.
As it turns out, little thought was given to his suitability. The selection process in the Holsey case conjures up the old military trope about volunteering by means of everyone else taking a step backward. "Because of who the victim was, nobody within the circuit wanted to be appointed to this case," Prince later testified. "And I told [the judge], sure, I'd take it."
On one condition: He insisted on picking his co-counsel. Prince had handled capital cases before, and with some success, but he'd only worked on the more traditional guilt/innocence part of the representation—never the crucial sentencing phase. He contacted Rob Westin, the lawyer he'd collaborated with previously. Westin said he'd do it, but then reversed himself in short order. Westin "had gone to the solicitor's office in Baldwin County," Prince later explained, "and had been told that they couldn't believe that he was representing Mr. Holsey and that if he continued to represent him he would never get another deal worked out with that office."
Trammell was likely chosen as Holsey's second lawyer "based on proximity," she later testified. "I had not tried to trial a death penalty case."
His next attempt to secure co-counsel failed as well; the lawyer quit after a few months on the case and took a job with the state attorney general's office. Seven months before the trial date, Prince finally found his "second chair" in Brenda Trammell, a lawyer who practiced in Morgan County, where the case was to be tried: "She was about the only one that would take it."
As for Trammell, she assumed she was selected "based on proximity," as she later testified. "I had not tried to trial a death penalty case and I waited for him to tell me what to do, and there really was not a lot of direction in that way."
There was still one thing missing. What distinguishes capital murder trials from noncapital ones is the penalty phase, wherein the jury hears additional evidence and determines the appropriate punishment—usually choosing between death and life without parole. During this phase, a "mitigation specialist," whom the American Bar Association (ABA) describes as "an indispensable member of the defense team throughout all capital proceedings," gathers information that might convince jurors to spare the defendant's life. Indeed, the court provided Holsey's defense team with sufficient funds to hire a mitigation specialist, but no one was ever able to account for the money. Prince later said that he didn't remember what happened to it, only that he was certain no mitigation specialist was ever hired. Which may explain Trammell's response to this question from Holsey's appeals lawyer.
Q: When you got into the case, was there any theory with respect to mitigation in the event that he was convicted?
A: No, sir.
Mitigation theory or not, Holsey went on trial for his life in February 1997.
There is a mantra among competent capital defense lawyers: "Death is different." By this they mean that defending against the state-sanctioned execution of a human being requires extraordinary measures, and that a capital case must be handled with even greater care than a "regular" murder trial. "It is universally accepted," the ABA states, "that the responsibilities of defense counsel in a death penalty case are uniquely demanding."
The Scottsboro Boys, in 1933, with attorney Samuel Leibowitz, who represented them following the US Supreme Court ruling. Fred Hiroshige/Decatur Daily via Wikipedia
This is not a new concept. More than 80 years ago, in an infamous capital rape case against nine black teenagers dubbed the Scottsboro Boys, a trial judge appointed the entire Scottsboro, Alabama, bar to represent the defendants—a showing of false magnanimity that the Supreme Court ultimately rejected, noting that it fell far short of the constitutional requirement for the appointment of counsel. An accused person "requires the guiding hand of counsel at every step in the proceedings," the opinion concluded.
But Holsey's lawyers did not provide that guiding hand. They were an odd couple with an awkward rapport. While Prince was a drunk, Trammell was a part-time minister who eschewed alcohol. She recalled stopping by her colleague's hotel room once during the trial to find him drinking, and never stopped by again. When he called her at home one night during the proceedings, slurring his words, she told him not to call her there anymore.
Their inability to communicate had a predictably devastating effect. In this exchange, Trammell is responding to questions from an appeals lawyer about her cross-examination of the state's DNA expert, who had testified that the victim's blood was found on Holsey's shoes:
Q: When were you told that you would cross-examine Michele?
A: Before lunch.
Q: When did she testify?
A: She was testifying. We took a break for us to do the cross, for lunch, and during lunch I had to learn about DNA.
Q: Did you know, had you had any training about DNA before that?
A: No, sir.
Q: Did you know anything at all about the DNA process?
A: No, sir…I was calling during lunch the capital defense people, to ask them what am I supposed to ask about DNA?
Q: And did you learn…being thrown into that, that questioning concerning DNA is an extremely technical and complicated area?
On February 11, 1997, both sides made their closing arguments and the judge gave final instructions to the jury. Six hours later, the jurors found Holsey guilty of armed robbery and of the deputy's murder. That was the night Prince called Trammell. Drunk. The only time he ever called her at home. He was concerned, she testified, that the sentencing "was not going to be good."
The state presented its case for death the following morning. Eight witnesses detailed Holsey's criminal background. Beyond the crimes for which he had just been convicted, he had pleaded guilty to two counts of aggravated assault 5 years earlier, and an armed robbery with serious bodily injury 14 years earlier. There was considerable dispute over whether the victims in the later incident had initiated the aggravated assaults, but in the end it hardly mattered—Holsey had stabbed a guy four times and admitted to it. By the time they rested their case, the state's lawyers had painted a stark portrait of a violent man with a violent past who now had murdered a faithful public servant in the line of duty.
The defense barely challenged that portrayal. They called several witnesses to prolong the useless debate over who was at fault in the aggravated assaults. Two employees from the county jails testified that he hadn't caused any problems at their facilities. Three people from the local Pizza Hut testified that he'd been a good employee for six months or so, until he lost his job when he went to jail for the assaults. The owner of the bar where the assaults had happened said he "had heard something about" Holsey's bed wetting, and drew some vague conclusions about the mother's neglect of her children and lack of parenting skills. Angela, Holsey's younger sister, begged the jury to let him live, but provided nothing compelling about her brother or their family. Which left only one witness to convey anything of substance: his oldest sister, Regina.
Robert Holsey, top right, with sisters Angela (blue dress), Regina (pale green), two half sisters, and a cousin.
Regina Holsey should have been a star defense witness. She was a deputy United States Marshal, an ex-Marine, and a veteran of Operation Desert Storm—not to mention a former employee of the Baldwin County Sheriff's Department, where the victim had worked. Yet her testimony reads like an underdeveloped roll of film: There are hints of powerful evidence that would cast her brother in a more sympathetic light, but the details never fully emerge. Essential facts are mentioned almost in passing: that their father was shot and paralyzed by the police when her mother was pregnant with Wayne. (The family called him Wayne, not Robert.) That he did poorly in school and was considered borderline mentally disabled. That their mother beat the children. That he was a stutterer, and that his sister Angela and mother, Mary, had mental-health problems.
The record reads almost as though Prince felt he was wasting the jury's time. On four separate occasions, with his most critical witness on the stand, he asked Regina to read from isolated portions of crucial documents rather than guiding her, and the jury, through them:
Q: And I'm not, again, just—I'm going to hit a few highlights. This is a juvenile complaint report dated 6-27-65. And I want you to read just the highlighted portion from that second page of that document. And the jury will be able to read it all, but I'm not going to take that much time. I'm going to hit some of the—would you read those highlighted portions, please?
A: The first part says Mr. Courson advised me that Robert was basically a runaway case. He has no supervision at home and refuses to return home. Says Mrs. Holsey would not go to the school, and sent a note with Robert. Robert was not allowed to return. When he tried to come back, the principal called the police to remove Robert.
Trammell's closing argument is even more cursory, perhaps because she didn't learn she was going to present it until the night before. In a nine-and-a-half-page speech laden with religious references—the lawyer/minister uses the word "God" 16 times and "Jesus" another 5—she managed to condense the mitigating evidence for her client into the space of a single paragraph.
Not all of us are abused and neglected, cursed at. Not all of us grow up with no father, with no mother, in essence who are neglected and are left alone, who are beaten. You know, you have got the records of Angela Holsey. Look at those when you go out. With a foster placement plan that says, "We can't send her back to a parent that won't encourage her in anything; it in actuality encourages her violence." Who is borderline mentally retarded. Wayne is borderline mentally retarded. Does that excuse him? No, there is no excuse. Who stuttered, who wet the bed until he was 12, and no one even takes him to the doctor for it. Who grew up by himself.
She ended with a plea for mercy. As inebriated as Prince may have been when he'd called her before, he was correct in his prediction. In less than two hours, the jury returned with a death sentence.
Trouble caught up with Andy Prince shortly after the trial. Still facing tens of thousands of dollars in judgments, he stole the last $800 from the estate he'd already looted. He then accepted a plea deal related to his fight with the neighbors, receiving probation for disorderly conduct. Eight months after Holsey's sentencing, Prince surrendered his law license, and six months after that, in May 1998, he was indicted for his theft and sent to prison for 16 months. By the time he was called to testify as part of Holsey's appeal, he was out of prison, sober, and getting by as a freelance paralegal. From the appeals transcript:
Q: Did you attempt to conceal your difficulty with alcohol from [the trial judge]?
A: I didn't attempt to conceal it. I just didn't parade it around. At the time, I didn't consider I was having any trouble with alcohol.
Q: And why is that?
A: You know, I could drink a quart of liquor every night and work all day long. I thought I was doing fine.
Q: Since you have become sober, do you have a different opinion now?
Q: And what is your opinion now?
A: Well, what I considered was doing fine at the time was just barely getting by.
Asked whether he should have resigned the Holsey appointment, Prince, who passed away in 2011, replied, "I shouldn't have been representing anybody in any case."
Just as alcoholics see things more clearly when they stop drinking, death penalty cases often come into better focus when good lawyers take over from bad ones. Holsey's case certainly did. But did it matter? The state of Georgia argued that it didn't. Sure, maybe Holsey's lawyer was plastered every night, and maybe another attorney might have handled it better. But Holsey was guilty of murder, the state's attorneys argued, and the best lawyers in the country couldn't change that fact. His appeal was little more than crying over spilled milk.
Holsey's mother doled out verbal brutality, too: "butthole," "sissy ass," "motherfucker," "dumbo," "buck teeth motherfucking monkey."
Capital cases are more than questions of guilt or innocence, though. Often the biggest question is whether the guilty should live or die. And the disturbing details of Holsey's early years only came to light as his appeals unfolded. It turned out, for instance, that his school had promoted him socially year after year despite his inability to grasp basic material. As early as first grade, Holsey was well behind his fellow students—his math and reading abilities never got past the fourth-grade level. As one of his junior high school teachers put it in an affidavit, he "just wasn't playing with a full deck." Two doctors testified that Holsey was not merely borderline, but was actually mentally disabled, which by law would make him ineligible for the death penalty.
There was far more the jury never heard—riveting testimony from witnesses who would have gladly shared the information had anyone bothered to ask. Holsey's mother, Mary, it turned out, was legendary around the neighborhood for the fearsome physical abuse she inflicted on her children. If Wayne opened the refrigerator looking for food because he was hungry, he was beaten. If he crossed the street to pick blackberries, he was beaten. If he wet the bed, which he did until he was a teenager, he was beaten. He was beaten with hands, curling irons, extension cords, high-heel shoes, cooking spoons. In the house, on the corner. The physical abuse was accompanied by verbal brutality: "butthole." "Sissy ass." "Motherfucker." "Dumbo." "Buck teeth motherfucking monkey."
All of this was summed up in the affidavit of Sandra Francis, a woman who grew up in the same neighborhood as the Holsey children before going off to college and graduate school in New Jersey: "I remember saying prayers of thanks and gratitude to God that I was not one of Mary Holsey's children," Francis testified. "We called her unit in the projects the 'torture chamber.'"
That other kids called the Holsey's unit "the torture chamber" was just one detail his lawyers never raised during his sentencing—or ever bothered to find out.
By the end of the appellate hearing, a much clearer portrayal of Robert Wayne Holsey had emerged: a stuttering, bed-wetting man with very low intellectual function who was raised in poverty and terrorized by a vicious, violent, and psychotic mother. The judge concluded that Holsey's trial defense team had "failed to prepare and present any meaningful mitigation evidence as a defense to the death penalty…
In light of this lack of any significant preparation or presentation of such defense, no one can seriously believe that the Petitioner received the constitutional guarantees of the Sixth Amendment right to effective assistance of counsel.
Holsey was going to get a new sentencing hearing—or was he? The state appealed to the Georgia Supreme Court, which had to consider the same two questions that the court below had just answered "no" and "yes": Had Andy Prince mounted a competent defense? And would it have made any difference if he had?
There is a reason that the "entire Scottsboro bar" did not satisfy the constitutional right to counsel when that Alabama trial judge made his outlandish appointment. Fifty-two years later, the Supreme Court, in the case of Strickland v. Washington, explained:
That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.
In other words, whether it be the entire bar or just one person, whoever represents the accused has a far greater obligation than just standing around with a law license in his pocket. But the court didn't stop there. If it had, everyone accused of a crime might go looking for the worst attorney he could find as a sort of insurance policy. To prevail on appeal, the condemned must demonstrate that if his lawyer hadn't done such a poor job, the verdict or sentence might reasonably have been different. And there's the rub.
In most states, a single juror's change of heart can convert a death sentence into a life sentence.
The Georgia Supreme Court opinion in the Holsey case does not mention Andy Prince's alcoholism. It doesn't mention his arrests, his disbarment, or his imprisonment. What it does say is that Holsey's death sentence was vacated "on the basis of trial counsel's alleged ineffectiveness in preparing and presenting mitigation evidence." Alleged. The opinion actually makes it sound as if Prince and Trammell did an outstanding job, describing the evidence found on appeal as "largely cumulative of evidence presented at trial, which highlighted Holsey's limited intelligence, his troubled and abusive home life, his positive contributions at home and elsewhere, and his mother's and sister's mental health issues." Concluding that the result would not have been different, the court reimposed the death sentence.
How do judges determine whether there is a reasonable probability of a different result? In Strickland, the Supreme Court said the decision should be objective, assuming that "the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision." But is the decision really objective? The death penalty is an individual moral choice. In Georgia—as in most of the 32 states that allow capital punishment—a single juror's change of heart can convert a death sentence into a life sentence. So the Georgia Supreme Court was saying that, in its objective opinion, the new evidence would not have changed any juror's mind.
Apparently the court was not moved by the affidavit of Larry Johnson. One of the Holsey jurors, Johnson had also been a juror in the 1991 capital case of William Brooks, who was represented by a team of expert death penalty lawyers and received a life sentence. Johnson provided his affidavit against the specific advice of the state Attorney General's Office, which sent a letter to the Holsey jurors advising them it was in their best interest not to discuss the case with Holsey's defense team. Johnson considered the tone of the letter "inappropriate"—he knew it was his prerogative to speak to whomever he wanted. Here's what else he said:
I was left to assume that Mr. Holsey was one of the "worst of the worst" in our society. I figured that if a deeper or fuller explanation for his violence had been available, surely the lawyers would have presented everything that they could.
And then he reached the rub.
Had Mr. Holsey's lawyers provided us jurors with even a small part of the wealth of information concerning…his background which I now know was available, it would have made a difference.
But whether it would have made a difference to Larry Johnson was of no consequence. To borrow from George W. Bush, the justices of the Georgia Supreme Court were the deciders, and it made no difference to them.
"I cannot believe that one juror hearing all of the mitigating evidence would not…find Holsey to be either fully mentally retarded or borderline mentally retarded."
Holsey lost again in federal district court. Thanks to a provision of the absurdly named Anti-Terrorism and Effective Death Penalty Act of 1996, the only question that remained for the federal courts was whether the Georgia Supreme Court had acted unreasonably, and the district court readily concluded it had not. As the Georgia court had done, the district judge simply presumed that Prince had done a deficient job—his drinking, theft, disbarment, and imprisonment was relegated to a footnote in the opinion.
Now Holsey was down to his final appeal, in the 11th Circuit Federal Court of Appeals. A three-judge panel heard the case, and came back with three separate opinions. Judge Rosemary Barkett wrote that the Georgia Supreme Court was indeed unreasonable: The sentencing testimony, she wrote, "hardly comports with the 'Torture Chamber' described by Holsey's neighbors and family members." And Prince had admitted that he never even considered presenting evidence of mental disability: "This is not surprising given his own testimony that he was drinking heavily during this time and the malpractice suit and criminal charges concerning his theft of client funds." Barkett likened Holsey's case to that of Richard Cooper, a strikingly similar case in which the condemned man was granted a new sentencing by the 11th Circuit:
I cannot believe that one juror hearing all of the mitigating evidence would not credit Holsey's experts and lay witnesses and find Holsey to be either fully mentally retarded or borderline mentally retarded and so diminished in his cognitive and behavioral capacity as to be either ineligible for or undeserving of the death penalty. When combined with Holsey's evidence of his horrific child abuse, none of which was presented to his sentencing jury, there is a substantial probability that one juror would not have voted in favor of the death penalty had this evidence been introduced by competent counsel.
Judge Edward Carnes found precisely the opposite after comparing the testimony from the sentencing and the appeals hearing in great detail. He conceded that some of the new evidence would have helped Holsey at sentencing, "but at this stage of the case, after the state court has adjudicated his claim on the merits, that helpful evidence is not helpful enough," he wrote.
Carnes did not dispute the similarity between the Holsey and Cooper cases, but referred to Cooper as an "outlier." And yet the outcome in that case confirmed that effective lawyering does make a difference: Just last month, after hearing all the evidence, the resentencing jury recommended a life sentence for Richard Cooper.
The tie was broken by Judge J.L. Edmondson, who agreed with Carnes. Edmondson appears to have written his concurrence mostly to complain about the length of his colleague's opinion. ("It seems to me that the incidence of long opinions has been on the rise in the last decade, or, at least, more are coming across my desk.") His own opinion, predictably brief, performed some linguistic gymnastics to conclude that the Georgia Supreme Court's determination fell "within the outside border of the range of reasonable."
Which is how, despite the drinking, the stealing, the racist outburst, the abysmal courtroom performance, the disbarment, and the ultimate imprisonment of his lead attorney, an intellectually disabled man has ended up on the verge of execution.
The death penalty is on temporary hold in Georgia, pending a state Supreme Court ruling on whether the public is entitled to know how lethal injection drugs are made and who is providing them for executions. The relevant Georgia statute deems this information a "confidential state secret." A decision could come down any day, and if the law is allowed to stand, Holsey's last hope will be clemency from the State Board of Pardons and Paroles. (Update: On May 19, the court voted to uphold the law.)
Holsey's last hope will be clemency from Georgia's State Board of Pardons and Paroles.
Clemency, a legal concept hundreds of years old, is most commonly defined as a showing of compassion or forgiveness in judging or punishing. Georgia is one of just a handful of states that give this power to a board, rather than a governor. The five board members are appointed to staggered terms, with a majority needed to commute a death sentence to life without parole.
Holsey will come before them with compelling evidence: a remarkable prison record of obedience and compliance during his 17 years on death row, a sincere and consistent commitment to his faith demonstrated by years of service, and an incredible letter of support from a man who spent 11 years on the row with him and was fortunate enough to receive his own clemency. The board will also have evidence never heard by his jury—of his intellectual disability, of deprivation, of the violence of his mother's torture chamber. And of course, of the lawyer, the drunken, disgraced lawyer assigned to him by the state that now wants to kill him.
Georgia's lawyers will say that none of this would have made a difference. They may say that it doesn't make a difference even now. But it does.