MoJo Author Feeds: Marc Bookman | Mother Jones http://www.motherjones.com/rss/authors/215181 http://www.motherjones.com/files/motherjonesLogo_google_206X40.png Mother Jones logo http://www.motherjones.com en "That's What That N----- Deserved" http://www.motherjones.com/politics/2015/03/fults-death-penalty-racism <!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN" "http://www.w3.org/TR/REC-html40/loose.dtd"> <html><body><blockquote><em>"The one place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box." &mdash;Lawyer Atticus Finch in Harper Lee's </em>To Kill A Mockingbird</blockquote> <p><span class="section-lead">In April 2005,</span> nearly eight years after Kenneth Fults was sentenced to death for kidnapping and murdering his neighbor Cathy Bounds in Spalding County, Georgia, one of the trial jurors made a startling admission under oath: He'd voted for the death penalty, he said, because "that's what that nigger deserved."</p> <p>It shouldn't come as too much of a surprise, given the circumstances&mdash;a black man admitting to the murder of a white woman in the deep South&mdash;that some white jurors might secretly harbor racist views. The surprising part was that this juror, Thomas Buffington, came right out and said it. And what should have been the most surprising development of all (alas, it wasn't) came this past August, when a federal appeals court, presented with ample evidence, refused to consider how racism might have affected Fults' fate.&nbsp;</p></body></html> <p style="font-size: 1.083em;"><a href="/politics/2015/03/fults-death-penalty-racism"><strong><em>Continue Reading &raquo;</em></strong></a></p> Politics Longreads Crime and Justice Race and Ethnicity Top Stories Tue, 24 Mar 2015 10:15:09 +0000 Marc Bookman 272051 at http://www.motherjones.com 5 Death Penalty Cases Tainted by Racism http://www.motherjones.com/politics/2015/03/racism-courtroom-5-death-penalty-cases <!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN" "http://www.w3.org/TR/REC-html40/loose.dtd"> <html><body><p>The intersection of race and justice on the street has loomed in the headlines this past year or two, with racially charged killings&mdash;Trayvon Martin, Michael Brown, Eric Garner, and Tamir Rice, among others&mdash;sparking widespread protests and highlighting stark police biases: A recent Justice Department investigation, for instance, found that blacks in Ferguson, Missouri, accounted for an overwhelming majority of traffic stops, traffic tickets, and arrests over a two-year period&mdash;nearly everyone who got a jaywalking ticket was black. When black drivers were pulled over in Ferguson, the DOJ found, they were searched at twice the rate of white drivers.</p></body></html> <p style="font-size: 1.083em;"><a href="/politics/2015/03/racism-courtroom-5-death-penalty-cases"><strong><em>Continue Reading &raquo;</em></strong></a></p> Politics Crime and Justice Race and Ethnicity death penalty Tue, 24 Mar 2015 10:00:08 +0000 Marc Bookman 271951 at http://www.motherjones.com 10 Ways to Blow a Death Penalty Case http://www.motherjones.com/politics/2014/04/10-death-penalty-cases-bad-lawyering <!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN" "http://www.w3.org/TR/REC-html40/loose.dtd"> <html><body><p>Thirteen years ago, speaking at the University of the District of Columbia, US Supreme Court Justice Ruth Bader Ginsburg criticized the effectiveness of court-appointed lawyers for low-income people facing capital punishment. "People who are well represented at trial do not get the death penalty," she said. "I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial."</p> <p>She wasn't the first to draw this connection. In 1994, the legendary lawyer and death penalty opponent Stephen Bright, president of the Southern Center for Human Rights, wrote a seminal essay for the <em>Yale Law Journal</em> titled "<a href="http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4500&amp;context=fss_papers" target="_blank">Counsel for the Poor: The Death Sentence Not for the Worst Crime But for the Worst Lawyer</a>."</p> <p>Very little has changed in the intervening 20 years. In 1997, for instance, a Georgia jury imposed a death sentence on Robert Wayne Holsey. (See&nbsp; "<a href="http://www.motherjones.com/politics/2014/04/alcoholic-lawyer-botched-robert-wayne-holsey-death-penalty-trial" target="_blank">This Man's Alcoholic Lawyer Botched His Case</a>. Georgia Executed Him Anyway.") In short, Andy Prince, Holsey's lead attorney, was a problem drunk, in and out of hospitals, who drank a quart of vodka a night during the trial. He was facing assault charges following a racist outburst, and would later be disbarred and sentenced to prison for stealing from a client. His client now stands at the precipice of execution. As outrageous as this sounds, it is hardly uncommon. Capital jurisprudence is replete with examples of lawyers who were drunk or sleeping during trials, who demeaned their clients in front of the jury, who missed key deadlines or used a "one brief fits all" appeals format. Yet the quality of capital representation can literally be the difference between life and death. Here are 10 cases highlighting things a good death penalty attorney should never do&mdash;and situations that would be funny were they not so deadly serious.<br> &nbsp;</p> <h3 class="subhed"><strong>1. Bring Up an Eye for an Eye During sentencing</strong></h3> <div class="inline inline-right" style="display: table; width: 1%"><img alt="Bible" class="image" src="/files/Bible-120.jpg"></div> <p><strong>State:</strong> Pennsylvania<br><strong>Attorney:</strong> Norman Scott<br><strong>Client:</strong> Willie Cooper<br><strong>Circumstances:</strong> Cooper had already been convicted of killing his brother's pregnant girlfriend when Scott rose during the trial's penalty phase, intending to ask the jury to sentence his client to life without parole, rather than death. Here's what he said:</p> <blockquote> <p>When you go back there, someone may say, as the District Attorney referred: You must impose the death penalty because of an eye for an eye, and a tooth for a tooth, and if that happens, I will ask you to&hellip;request that a Bible be sent back to you, and when you get that Bible, turn to the book of Exodus, Chapter 21, Verse 24, and you will see those very words: an eye for an eye, and a tooth for a tooth. And at that moment in time, you will think that you know what it means, but you won't, because in order to know what it means, you have to read verse 22 and 23 in front of it, which says that if there is an assault on a woman, and that woman is pregnant, and that woman loses the child, and there is damage beyond that to the woman, then an eye for an eye and a tooth for a tooth. You may go back there, and you may think that you have to impose the death penalty in this case because that is the worst thing that anyone can ever do to anyone else.</p> </blockquote> <p>Predictably, the jury asked for a Bible, but the judge refused, saying it would be "inappropriate."<br><strong>Outcome:</strong> The jury sentenced Cooper to death. Scott later claimed he had been aware of the victim's pregnancy, but made his biblical argument out of habit. The trial judge granted Cooper a new sentencing&mdash;in 2009, a new jury sentenced him to life in prison.<br> &nbsp;</p> <h3 class="subhed"><strong>2. Park Your Car During Critical Testimony</strong></h3> <div class="inline inline-right" style="display: table; width: 1%"><img alt="parking meter" class="image" src="/files/parking-meter-120.jpg"></div> <p><strong>State:</strong> Georgia<br><strong>Lawyers:</strong> Ben and Dorothy Atkins<br><strong>Client:</strong> Jack Carlton House<br><strong>Circumstances:</strong> Ben and Dorothy Atkins were husband-and-wife real estate lawyers, and neither had read Georgia's new death penalty statute. They didn't even realize that there would be a separate sentencing phase after their client was convicted. Ben Atkins learned he would be lead counsel in the case two days before the trial commenced. He did not visit the crime scene or interview any witnesses. While the prosecution examined a critical police witness about an alleged confession by the defendant&mdash;who claimed it had been beaten out of him and had many bruises on his body as evidence&mdash;Ben Atkins was outside parking his car. He conducted the officer's cross-examination anyway. Here is his closing argument in its entirety:</p> <blockquote> <p>May it please the Court, ladies and gentlemen of the jury, any lawyer who finds himself in this position cannot help but feel somewhere along the way there must be something that he could have done to have brought about a different decision; he always does. I must admit I have never been in this position before. I think there has been enough dramatics already, and all I would like to leave with you for your own sake is, "Vengence is mine, saith the Lord." Thank you.</p> </blockquote> <p><strong>Outcome:</strong> House was convicted and sentenced to death. Eleven years later, the 11th Circuit Court of Appeals granted him a new trial. Faced with the possibility of another death sentence, House pleaded guilty and received a sentence of life with the possibility of parole. He remains in prison.<br> &nbsp;</p> <h3 class="subhed"><strong>3. Drink excessively and/or be Inexperienced</strong></h3> <div class="inline inline-right" style="display: table; width: 1%"><img alt="martini" class="image" src="/files/martini-120.jpg"></div> <p><strong>State:</strong>&nbsp;Kentucky<br><strong>Attorneys:</strong> William Hagedorn and John Foote<br><strong>Client:</strong> Gregory Wilson<br><strong>Circumstances:</strong> In 1988, Judge Raymond Lape Jr. could not find attorneys to handle Wilson's trial, and posted this plea on the courtroom door: "PLEASE HELP. DESPERATE. THIS CASE CANNOT BE CONTINUED AGAIN." Two lawyers responded. John Foote had never even tried a felony case, let alone a murder, and William Hagedorn had no office, no copy machine, no staff, and no law books. Instead, he practiced out of his home, where he displayed a flashing Budweiser sign. His business card gave the phone number of Kelly's Keg, a local bar. Foote later said in an affidavit that Hagedorn "manifested all the signs of a burned-out alcoholic." Wilson's trial was complicated by a further fact: His codefendant, a former prostitute named Brenda Humphrey, was having an affair with a judge who was a friend of Lape, the trial judge.<br><strong>Outcome:</strong> Wilson, exasperated by the horrendous lawyering he was receiving, finally decided to represent himself. His opening statement was simply: "I am not a lawyer, and I'm not guilty." The judge ordered the appointed lawyers to assist Wilson, but a witness said that Hagedorn came and went and was present less than half the trial. The 6th Circuit Court of Appeals nonetheless upheld Wilson's conviction and death sentence&mdash;a dissenting jurist wrote that Wilson was convicted in a "kangaroo court." He remains on death row.<br> &nbsp;</p> <h3 class="subhed"><strong>4.</strong> <strong>Not bother to Ask Your Client How Old He Is</strong></h3> <div class="inline inline-right" style="display: table; width: 1%"><img alt="conversation" class="image" src="/files/conversation-120.jpg"></div> <p><strong>State:</strong>&nbsp;Pennsylvania<br><strong>Attorney:</strong> Gary Server<br><strong>Client:</strong> Lionel Campfield<br><strong>Circumstances:</strong> Campfield was arrested in October 2008 and charged with two counts of murder&mdash;the commonwealth announced shortly thereafter that it would seek the death penalty. Apparently, neither the prosecutors nor Campfield's own lawyers (Server was the sentencing lawyer) ever bothered to ask their client his age. On the eve of the trial, more than a year after he was appointed to the case, Server finally filed a motion stating that Campfield was only 16 at the time of the crime, and therefore was ineligible for the death penalty. When asked by the <em>Philadelphia Inquirer</em> how he felt facing a possible death sentence, Campfield replied, "I laid down with that every night. I was scared. I was 16 when they said I did this. It was [the lawyers'] responsibility to do something about that." Server disagreed. The mistake, he told the paper, "didn't really result in any acute stress to anybody."<br><strong>Outcome:</strong> Campfield was granted a noncapital jury trial, where he was convicted of murder and received a sentence of 35 to 70 years.<br> &nbsp;</p> <h3 class="subhed"><strong>5. Cut and Paste Your Appeals</strong></h3> <div class="inline inline-right" style="display: table; width: 1%"><img alt="cut and paste" class="image" src="/files/cut-and-paste-120.jpg"></div> <p><strong>State:</strong> Texas<br><strong>Attorney:</strong> Toby Wilkinson<br><strong>Client:</strong> Justin Fuller<br><strong>Circumstances:</strong> In his appeal of Fuller's conviction, Wilkinson cut and pasted the appeal of another client, Henry Dunn. He failed to change the name of the judge, trial lawyer, trial exhibits&mdash;Dunn's codefendant makes an appearance in the filing. "Here's the thing that happened. Once again, I was running on deadline," Wilkinson later explained to the <em>Austin American-Statesman</em>. "I was going to, at some point, go back and delete those [references to Dunn], and between having cataracts&mdash;I was basically going blind and didn't realize it&mdash;and starting up a capital murder trial, I didn't go back and clean it up." After Wilkinson subsequently took more than five months to file notice of a federal appeal, the courts appointed an experienced attorney, Don Bailey, to help.</p> <p>When he saw Wilkinson's work, Bailey couldn't believe his eyes, according to the Austin daily: "What was he thinking? That nobody would care? Maybe so, and maybe he is right." But Bailey's request to file a new appeal on Fuller's behalf was rejected by the state court, and the federal courts denied his claim that Wilkinson's work had been grossly ineffective. Finally, Bailey turned to Gov. Rick Perry for a reprieve. In a letter, he implored Perry to "send a message&hellip;that the state of Texas will not tolerate this kind of shoddy&hellip;treatment when we are subjecting its citizens to the ultimate punishment."<br><strong>Outcome:</strong> Perry refused, and Justin Fuller was executed in 2006. Wilkinson continues to handle capital cases in Texas. In May 2013, one of his clients, Micah Brown, was sentenced to death after a jury trial.<br> &nbsp;</p> <h3 class="subhed"><strong>6. Ignore Critical filing Deadlines</strong></h3> <div class="inline inline-right" style="display: table; width: 1%"><img alt="calendar" class="image" src="/files/calendar-120_0.jpg"></div> <p><strong>State:</strong>&nbsp;Texas<br><strong>Attorney:</strong> Jerome Godinich<br><strong>Clients:</strong> Johnny Ray Johnson, Keith Steven Thurmond<br><strong>Circumstances:</strong> Godinich missed the deadline for filing a federal appeal&mdash;a right guaranteed by the Constitution&mdash;in the unrelated capital cases of Johnson and Thurmond, who had been tried and sentenced to death. As the <em>Houston Chronicle</em> reported, "In both cases, [Godinich] waited until after business hours on the last day an appeal could be filed and then blamed a malfunctioning filing machine for his tardiness, according to a 5th Circuit Court of Appeals opinion...The court chastised the attorney for using the same excuse twice."<br><strong>Outcome:</strong> Johnson was executed in 2009 and Thurmond in 2012. But Godinich's repeated failure to meet his filing deadlines hasn't precluded him from handling capital cases in Texas. Another one of his clients, Juan Balderas, was sentenced to death just last month.<br> &nbsp;</p> <h3 class="subhed"><strong>7. Abandon Your Client</strong></h3> <div class="inline inline-right" style="display: table; width: 1%"><img alt="abandoned" class="image" src="/files/alone-120.jpg"></div> <p><strong>State:</strong> Alabama<br><strong>Lawyers:</strong> Jaasi Munanka and Clara Ingen-Housz<br><strong>Client:</strong> Cory Maples<br><strong>Circumstances:</strong> After an Alabama jury handed Maples a death sentence, Munanka and Ingen-Housz, New York City-based attorneys for the law firm Sullivan and Cromwell, took on his post-conviction appeal <em>pro bono</em>. While the appeal was pending, however, both lawyers left the firm without telling their client or the Alabama courts. Consequently, when the state post-conviction appeal was denied, Maples missed the deadline for his federal appeal.<br><strong>Outcome:</strong> The Alabama Supreme Court and the 11th Circuit denied Maples' subsequent request to file an "out-of-time" appeal, but the US Supreme Court reinstated it, saying: "In these circumstances, no just system would lay the default at Maples' death-cell door." Maples remains on death row, pending the outcome of his federal appeal.<br> &nbsp;</p> <h3 class="subhed"><strong>8. Multitask Ridiculously</strong></h3> <div class="inline inline-right" style="display: table; width: 1%"><img alt="multitask" class="image" src="/files/work-120.jpg"></div> <p><strong>State:</strong>&nbsp;Oklahoma<br><strong>Lawyers:</strong> E. Melvin Porter and Johnny Albert<br><strong>Client:</strong> James T. Fisher<br><strong>Circumstances:</strong> Porter, a state senator at the time he represented Fisher, had an extraordinarily busy schedule, even by the standards of his profession; with Fisher's 1983 trial approaching, he had at least 25 cases on the jury docket at the same time&mdash;and he had tried another capital case the week before Fisher's. Not surprisingly, Fisher was found guilty of murder. During the sentencing phase, Porter waived his opening and closing statements. In fact, he spoke only nine words during the entire sentencing. "Four were the equivalent of judicial pleasantries," wrote a federal appeals judge. And the "other five words formed an ill-founded, unsupported and ultimately rejected objection to one portion of the prosecutor's closing argument."<br><strong>Outcome:</strong> Nineteen years after Fisher was sentenced to death, the 10th Circuit Court of Appeals granted him a new trial based on Porter's ineffectiveness. In 2005, he was retried, convicted, and sentenced to death again. He would eventually be granted yet another trial. His second-round lawyer, Johnny Albert, "spent less time working on cases and more time drinking beer and playing pool during work hours," several appeals witnesses testified. In addition, Albert physically threatened Fisher at a pretrial hearing. Consequently, Fisher chose not to attend his own trial. Albert admitted that "his life began to crumble and he began drinking heavily and abusing cocaine," around the time of the trial. Finally, in 2010, the Oklahoma authorities offered to release Fisher if he pleaded guilty to the 1983 offense and agreed to leave the state for good. He gladly accepted.<br> &nbsp;</p> <h3 class="subhed"><strong>9. Fail to Ask</strong><strong> Basic Questions</strong></h3> <div class="inline inline-right" style="display: table; width: 1%"><img alt="question" class="image" src="/files/question-120.jpg"></div> <p><strong>State: </strong>Kentucky<br><strong>Lawyer:</strong> Ferdinand "Fred" Radolovich<br><strong>Client:</strong> Jeffrey Leonard (a.k.a. James Earl Slaughter)<br><strong>Circumstances:</strong> Leonard was convicted of murder and sentenced to death in 1983. It turned out that Radolovich, Leonard's lawyer, had failed to investigate his background, and so had missed evidence that might have convinced a jury to spare his client's life. (He'd also missed the fact that his client's surname was Leonard&mdash;not Slaughter, a name with obvious downsides in a capital murder trial.) Radolovich ultimately surrendered his law license after being charged with perjury for claiming he'd handled four death penalty cases before Leonard's&mdash;investigators discovered that he'd actually <em>never </em>been a lead attorney in a capital case.<br><strong>Outcome:</strong> A federal district court granted Leonard a new sentencing, but in 2006, the 6th Circuit reversed the district court's decision and reimposed the death sentence. The following year, Gov. Ernie Fletcher commuted Leonard's sentence to life without parole, citing concerns about Radolovich's lawyering.<br> &nbsp;</p> <h3 class="subhed"><strong>10. Snooze Strategically</strong></h3> <div class="inline inline-right" style="display: table; width: 1%"><img alt="napping" class="image" src="/files/napping-120.jpg"></div> <p><strong>State:</strong>&nbsp;Texas<br><strong>Lawyer</strong><strong>:</strong> John Benn<br><strong>Client:</strong> George McFarland<br><strong>Circumstances</strong><strong>:</strong> McFarland went to death row for a 1991 murder. Although there was compelling evidence that lawyer Benn, then 72, slept during McFarland's trial, the Texas Court of Criminal Appeals upheld the sentence, largely because McFarland had a second, less experienced attorney who managed to stay awake. The junior lawyer said he thought the jury might have sympathy for McFarland because of Benn's "naps," prompting the appeals court to say that allowing Benn to sleep at trial might be considered strategic. A dissenting judge wrote: "I find the majority's suggestion that it was somehow reasonable trial strategy for appellant's lead counsel to take a 'short nap' during the trial utterly ridiculous."<br><strong>Outcome:</strong> McFarland remains on death row.</p></body></html> Politics Crime and Justice Human Rights Supreme Court Top Stories Capital Punishment Tue, 22 Apr 2014 10:00:16 +0000 Marc Bookman 249506 at http://www.motherjones.com This Man's Alcoholic Lawyer Botched His Case. Georgia Executed Him Anyway. http://www.motherjones.com/politics/2014/04/alcoholic-lawyer-botched-robert-wayne-holsey-death-penalty-trial <!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN" "http://www.w3.org/TR/REC-html40/loose.dtd"> <html><body><p><strong>Update (12/10/2014)</strong>: Holsey was executed last night at 10:51 p.m.</p> <p><em><strong>Update (11/20/2014):</strong> Georgia has set a December 9 execution date for Robert Wayne Holsey; a clemency hearing is scheduled for the morning of December 8. </em></p> <p><span class="section-lead">When people recount</span> 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&mdash;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.</p> <p>When a person drinks that heavily, there's bound to be collateral damage&mdash;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&mdash;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.</p> <p>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&mdash;"Nigger, get the fuck out of my yard or I'll shoot your black ass"&mdash;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.</p> <p>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.</p> <p>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:</p> <blockquote> <p>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.</p> </blockquote> <p>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."</p> <p>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&mdash;family problems, his disastrous finances, his heavy work responsibilities&mdash;Prince insisted he had them "under control." Events would soon prove otherwise.</p> <p>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 "<a href="http://www.motherjones.com/politics/2014/04/10-ways-blow-death-penalty-case" target="_blank">10 Ways to Blow a Death Penalty Case.</a>")</p> <p>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.</p> <p><br><span class="section-lead">In the early hours</span> 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.</p> <div class="inline inline-right" style="display: table; width: 1%"><img alt="" class="image" src="/files/robinsonclip400.jpg"><div class="caption"><strong>Deputy Robinson's killing generated lots of local press.</strong></div> </div> <p>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.</p> <p>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." &nbsp;</p> <p>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&mdash;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."</p> <p>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." &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>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."</p> <p>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&mdash;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.</p> <blockquote> <p>Q: When you got into the case, was there any theory with respect to mitigation in the event that he was convicted?</p> <p>A: No, sir.</p> </blockquote> <p>Mitigation theory or not, Holsey went on trial for his life in February 1997.<br> &nbsp;</p> <p><span class="section-lead">There is a mantra</span> 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."</p> <div class="inline inline-left" style="display: table; width: 1%"><img alt="" class="image" src="/files/scottsboroboys.jpg"><div class="caption"><strong>The Scottsboro Boys, in 1933, with attorney Samuel Leibowitz, who represented them following the US Supreme Court ruling. </strong>Fred Hiroshige/<em>Decatur Daily</em> via Wikipedia</div> </div> <p>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&mdash;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.</p> <p>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.</p> <p>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:</p> <blockquote> <p>Q: When were you told that you would cross-examine Michele?</p> <p>A: Before lunch.</p> <p>Q: When did she testify?</p> <p>A: She <em>was</em> testifying. We took a break for us to do the cross, for lunch, and during lunch I had to learn about DNA.</p> <p>Q: Did you know, had you had any training about DNA before that?</p> <p>A: No, sir.</p> <p>Q: Did you know anything at all about the DNA process?</p> <p>A: No, sir&hellip;I was calling during lunch the capital defense people, to ask them what am I supposed to ask about DNA?</p> <p>Q: And did you learn&hellip;being thrown into that, that questioning concerning DNA is an extremely technical and complicated area?</p> <p>A: Definitely.</p> </blockquote> <p>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."</p></body></html> <p style="font-size: 1.083em;"><a href="/politics/2014/04/alcoholic-lawyer-botched-robert-wayne-holsey-death-penalty-trial"><strong><em>Continue Reading &raquo;</em></strong></a></p> Politics Longreads Crime and Justice Human Rights Race and Ethnicity Supreme Court Top Stories Tue, 22 Apr 2014 10:00:15 +0000 Marc Bookman 249466 at http://www.motherjones.com How Crazy Is Too Crazy to Be Executed? http://www.motherjones.com/politics/2013/02/andre-thomas-death-penalty-mental-illness-texas <!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN" "http://www.w3.org/TR/REC-html40/loose.dtd"> <html><body><div class="inline inline-center" style="display: table; width: 1%"><img alt="" class="image" src="/files/andrethomasbyChrisJennings-HearaldDemocrat630.jpg"><div class="caption"><strong>Andre Thomas is escorted by officers during his 2005 murder trial. </strong><br> Chris Jennings/Herald Democrat</div> </div> <p>Years later, after Andre Thomas had been convicted of killing his estranged wife, his 4-year-old son and her 13-month-old daughter in the most bizarre case in Grayson County history, after he had received a death sentence and been told that it would be imposed at the appropriate future time, after he had been dispatched to Texas' death row to wait his turn with the other condemned men and women, the prosecutors were still talking about "the eyeball issue."</p> <div class="sidebar-large-right"> <div class="inline inline-left"><img alt="Mike Farrell" class="image" height="82" src="/files/mike-farrell.jpg" width="70"></div> <span class="section-lead"><span style="color: rgb(139, 69, 19);">AUDIO:</span></span> Click on the arrow below to hear actor Mike Farrell read this story&mdash;or download <a href="http://soundcloud.com/mother-jones/podcast-how-crazy-is-too-crazy/s-80HFs" target="_blank">our free podcast</a>.<object height="18" width="100%"><param name="movie" value="https://player.soundcloud.com/player.swf?url=http%3A%2F%2Fapi.soundcloud.com%2Ftracks%2F78851922%3Fsecret_token%3Ds-80HFs&amp;color=ff6600&amp;auto_play=false&amp;player_type=tiny"><param name="allowscriptaccess" value="always"><param name="wmode" value="transparent"><embed allowscriptaccess="always" height="18" src="https://player.soundcloud.com/player.swf?url=http%3A%2F%2Fapi.soundcloud.com%2Ftracks%2F78851922%3Fsecret_token%3Ds-80HFs&amp;color=ff6600&amp;auto_play=false&amp;player_type=tiny" width="100%" wmode="transparent"></embed></object></div> <p>Certainly there were other details that made the crime uniquely memorable. For one thing, Andre had cut out the children's hearts and returned home with the organs in his pockets. For another, he was careful to use three different knives so that the blood from each body would not cross-contaminate, thereby ensuring that the demons inside each of them would die. He then stabbed himself in the chest, but he did not die as he had hoped. In fact, he was well enough to leave a message on his wife's parents' phone explaining that he thought he was in hell, and he managed to confess to the police what he had done before they took him in for emergency surgery.</p> <p>The entire episode had biblical overtones&mdash;Andre had convinced himself that his wife was Jezebel, his son the Antichrist, and her daughter just plain evil. In short, the case had enough spectacular aspects to keep the most jaded of court watchers buzzing for months, but it was the eyeball issue that garnered most of the attention. And that was only the beginning.</p></body></html> <p style="font-size: 1.083em;"><a href="/politics/2013/02/andre-thomas-death-penalty-mental-illness-texas"><strong><em>Continue Reading &raquo;</em></strong></a></p> Politics Crime and Justice Human Rights Race and Ethnicity Supreme Court Top Stories Capital Punishment Tue, 12 Feb 2013 11:02:10 +0000 Marc Bookman 215651 at http://www.motherjones.com 13 Men Condemned to Die Despite Severe Mental Illness http://www.motherjones.com/politics/2013/01/death-penalty-cases-mental-illness-clemency <!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN" "http://www.w3.org/TR/REC-html40/loose.dtd"> <html><body><p>Just how crazy must a person be to be ruled incompetent for execution in the United States? Being profoundly mentally ill is not enough. You have to be deemed legally "insane."</p> <p>At trial, the insanity defense generally hinges on a person's inability to distinguish right from wrong or understand the "nature and quality" of his act. In the context of an impending execution, insanity means you cannot rationally comprehend that you are being put to death as a consequence of the crime you committed.</p> <p>In 2005, a Texas jury found that Andre Thomas, the subject of my in-depth companion piece (see box below), was not insane at the time of his crime.</p> <div class="sidebar-large-right" style="display: table; width: 1%;"><a href="http://www.motherjones.com/politics/2013/02/andre-thomas-death-penalty-mental-illness-texas?page=2" target="_blank"><img alt="" class="image" src="/files/athomas-state3_master_425x320_0.jpg" width="265"></a><br><strong>Read Marc Bookman's essay: "<a href="http://www.motherjones.com/politics/2013/02/andre-thomas-death-penalty-mental-illness-texas" target="_blank">How Crazy Is Too Crazy to Be Executed?</a>" (Or listen to actor Mike Farrell read it.)</strong></div> <p>To put this in context, consider that Thomas was then, and still is, a delusional paranoid schizophrenic who hears voices&mdash;from God, he believes&mdash;telling him to do things. He carved out the organs of his four-year-old son, his estranged wife, and her 13-month-old daughter, and took them home in his pockets, believing that this would kill the demons inside them. In the days following his arrest, he insisted to a jailhouse nurse that his victims were still alive.</p> <p>And that's not even the weirdest part of the story.</p> <p>Thomas' case is on appeal in federal court, and as it stands, the courts cannot even address the question of whether he is competent to be executed until he is about to be. But should someone as obviously crazy as Andre Thomas be facing execution at all? Over the past decade, US courts have barred the death penalty for the intellectually disabled and for juveniles&mdash;the Supreme Court found that they have less culpability due to their lower mental functioning and immaturity. Many legal observers believe that barring the death penalty for the severely mentally ill, given their dissociation from reality, is the next frontier in capital jurisprudence.</p></body></html> <p style="font-size: 1.083em;"><a href="/politics/2013/01/death-penalty-cases-mental-illness-clemency"><strong><em>Continue Reading &raquo;</em></strong></a></p> Politics Civil Liberties Crime and Justice Race and Ethnicity Supreme Court Top Stories Tue, 12 Feb 2013 11:02:09 +0000 Marc Bookman 215216 at http://www.motherjones.com