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.