Representation

NEW VOICES: Retired Judges Support Death Row Inmate's Appeal

In a brief filed with the U.S. Supreme Court, eight retired judges recently asked the Court to review the case of Texas death row inmate Rodney Reed. Reed is scheduled to be executed in January 2015. While the judges, who served on federal and state courts in many jurisdictions around the country, did not take a stance on Reed's innocence claims, they urged the Court to hear his appeal so that new evidence in the case could be examined under the light of cross-examination in a full hearing, rather than just through the review of legal papers. "That is not how our system of justice is designed to operate," the judges said. "When courts have only affidavits without witness testimony, they lack the means of testing the accuracy, reliability, competence, scientific acumen, proper training and judgment of the [person testifying]." Reed is claiming that his trial lawyers did not adequately investigate forensic evidence that experts now say might be unreliable. A three-judge panel of the U.S. Circuit Court of Appeals for the Fifth Circuit rejected Reed's appeal because they found the new testimony unpersuasive as presented in appellate briefs. The eight judges who petitioned the Supreme Court said the evidence should have been heard by a district judge in an evidentiary hearing, rather than by the appeals court. "Trial courts are the appropriate venue for developing a factual record and resolving questions of fact," they said. See list of judges below.

REPRESENTATION: Georgia Inmate With Drunk Lawyer Facing Execution

The Georgia Board of Pardons and Paroles will soon consider the clemency petition of Robert Holsey describing a near complete failure in the judicial process that sent him to death row in 1997. As Marc Bookman described in the latest edition of Mother Jones, Holsey was assigned a lawyer, Andy Prince, who consumed a quart of vodka every night of the trial. While preparing Holsey's case, he was arrested in an incident after pointing a gun at a black neighbor and using a racial slur. Despite charges of assault, disorderly conduct, and public drunkenness stemming from the racially-charged crime, he was allowed to stay on as defense attorney for a black defendant facing charges of murdering a white police officer. Prince failed to communicate with his co-counsel, Brenda Trammell, who had never tried a capital case, leaving her to perform a complex cross-examination with little time to prepare. She also gave the case's closing argument after almost no notice. Prince failed to present mitigating evidence regarding Holsey's intellectual disabilities and the severe abuse he suffered as a child. A juror from Holsey's trial later said in an affidavit that he would have spared Holsey's life had he heard such evidence. However, state and federal appeals courts have held that, even without the failings of the defense team, the outcome would probably have been the same.

Perspectives on Representing Death Row Inmates

Ken Rose has represented people condemned to death in the south for 30 years and recently described his experience with this "flawed system:" "The system reflects our biases and blind spots," he said. "Just like us, it is susceptible to error and prejudice and, sometimes, an indiscriminate desire for revenge. Like our country, it favors the privileged and takes the heaviest toll on the poor and mentally ill." As an example, Rose told the story of one of his clients, Leo Edwards, whose gas-chamber execution he witnessed in Mississippi in 1989. Edwards, who was black, was prosecuted by a district attorney who said he tried to "get rid of as many" black jurors as possible, and testified that he used that tactic in Edwards' trial, resulting in an all-white jury. The timing of Edwards' case prevented him from receiving a new trial: "This clear racial bias was never addressed because Leo’s case was too far along by 1987, when the U.S. Supreme Court set new standards for reviewing claims of race discrimination in jury selection," he said. Rose noted that some improvements have been made, but "Racial bias still taints trials. Defendants are still chosen for death arbitrarily. Those sentenced to die are still overwhelmingly poor and mentally ill. Judges and lawyers, including myself, still make mistakes. Innocent people are still imprisoned."  Read the op-ed below.

Instead of an Execution, Mississippi Supreme Court Throws Out the Conviction

In a case in which the state's Attorney General had asked for an execution date of March 27, the Mississippi Supreme Court instead threw out Michelle Byrom's murder conviction and death sentence and ordered a new trial just four days later. The case was plagued with numerous problems, including inadequate representation, critical evidence not presented to the jury, confessions by another defendant, and the prosecution's lack of confidence in its own story of what actually happened. In its order reversing the conviction, the court described Byrom's case as "extraordinary and extremely rare." Prosecutors said that Byrom hired a friend of her son's to murder her husband, despite several confessions from her son, who said he killed his father because he snapped from years of abuse. The jury that convicted Michelle Byrom never heard evidence from a forensic psychologist who had told the judge that Byrom's son had confessed to the murder, nor were they presented with two letters from Byrom's son describing why he murdered his father. Byrom's son and his friend pled guilty to conspiracy in the crime and are now free after serving time in prison. David Voisin, an attorney advising Byrom's legal team, said, "We are grateful to the Mississippi Supreme Court in recognizing the extreme injustice in this case and taking the swift and extraordinary step of vacating Michelle Byrom's conviction so that she can have a fair opportunity to have her case heard in court."

Supreme Court to Review Death Penalty Case Involving Ineffective Representation

On March 24, the U.S. Supreme Court agreed to hear arguments in Jennings v. Stephens (No. 13-7211), a Texas death penalty case involving ineffectiveness of counsel. In his request for federal relief from his death sentence, Robert Jennings cited three instances in which his trial lawyers failed to adequately represent him. A U.S. District Court granted him relief on two of those claims (including failure to present evidence of his mental problems), while denying the third (his own lawyers told the jury they agreed he was eligible for the death penalty). Texas appealed the District Court's grant of relief on the first two claims to the U.S. Court of Appeals for the Fifth Circuit, which then held they could not consider Jennings' third claim of ineffective representation because his lawyers failed to file formal appeal papers on that claim. Jennings' attorneys maintain that no such filing was required since the Fifth Circuit was already reviewing the general issue of ineffectiveness of counsel at the state's request. The case may be set for argument in the fall.

BOOKS: Quest for Justice - Defending the Damned

In his book, "Quest for Justice: Defending the Damned," Richard Jaffe explores the problems of the American death penalty system through his experience as a capital defense attorney in Alabama. During the past twenty years, Jaffe has helped secure the release of three death row inmates: Randall Padgett and Gary Drinkard, who were fully exonerated, and James Cochran, who was cleared of murder charges, but pleaded guilty to a related robbery charge. In his book, Jaffe wrote, "I always keep in mind the maxim that history will judge a society by the way it treats its weakest and most vulnerable. Although most would assume that applies to the poor and the elderly, all one has to do is look at those who end up on death row: an overwhelming number are poor, disenfranchised and suffer from some mental defect or even brain damage." Charles J. Ogletree, Jr., a Harvard Law Professor, said of Quest for Justice, "This book tells the stories of people once convicted and sentenced to death and later acquitted of the same charges. It tells how it happened, shows the criminal courts are fallible and that poor people facing the death penalty may live or die depending on the competence and dedication of the lawyers appointed to defend them."

Doubts of Culpability Surround Upcoming Execution in Mississippi

Michelle Byrom is scheduled to be executed in Mississippi on March 27 for conspiring to murder her husband, Edward Byrom, Sr. Her son, Edward Byrom, Jr., known as Junior, confessed to the crime on multiple occasions, and wrote that he lied when he told police his mother and a friend were involved. "I was so scared, confused, and high, I just started spitting the first thought out, which turned in to this big conspiracy thing, for money, which was all BS, that's why I had so many different stories," he wrote. Junior testified against his mother in exchange for a reduced sentence and is now out of prison. Michelle Byrom was abused by her stepfather, ran away from home at age 15, and moved in with Edward, Sr., that same year, when he was 31. He verbally and physically abused her and threatened violence if she tried to leave. A forensic psychiatrist diagnosed Michelle with borderline personality disorder, depression, alcoholism, and Münchausen syndrome, saying the disorders were consistent with abuse. She was interrogated while in the hospital under the influence of 12 different medications, and only confessed when the Sheriff told her about her son's confession and encouraged her not to let her son "take the rap." Her trial attorneys, trying their first capital case, waived her right to have a jury decide her sentence, believing that would give them grounds for an appeal. They did not present evidence of her mental illnesses, thinking that evidence would be better saved for the appeal. The Mississippi Supreme Court upheld her conviction and sentence (5-3), with Justice Jess Dickinson writing in dissent, "I have attempted to conjure up in my imagination a more egregious case of ineffective assistance of counsel during the sentencing phase of a capital case. I cannot." UPDATE: Read Andrew Cohen's piece about this case The Atlantic.

NEW VOICES: Pennsylvania Supreme Court Justice Criticizes Inadequate Representation in Capital Cases

In a lecture at the Widener University School of Law, Pennsylvania Supreme Court Justice Thomas G. Saylor criticized the poor state of death penalty representation in Pennsylvania. He offered numerous cases in which death sentences were overturned because attorneys had failed to present mitigating evidence to the jury. Quoting from a special concurrence he wrote on a capital case involving ineffective assistance of counsel, he said, "Of greatest concern, these sorts of exceptionally costly failures, particularly as manifested across the wider body of cases, diminish the State’s credibility in terms of its ability to administer capital punishment and tarnish the justice system, which is an essential part of such administration." He cited a study of Philadelphia's death-penalty representation system, which found that the system for appointing lawyers was "woefully inadequate," "completely inconsistent with how competent trial lawyers work," "punish[ed] counsel for handling these cases correctly," and unacceptably "increase[d] the risk of ineffective assistance of counsel" in individual cases. Saylor said, "Every taxpayer should be seriously concerned about the systemic costs of inadequate defense for the poor. When the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials, and appeals. Poor systems of defense do not make economic sense."

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