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.