Representation

Former Death Row Inmate in Texas Freed Because Attorneys Missed Evidence

On October 8 former death row inmate Manuel Velez (pictured with his son before his arrest) was freed from a Texas prison, following a "no contest" plea to a lesser charge on August 25. Velez had been convicted of killing his girlfriend's one-year-old son but consistently maintained his complete innocence. Velez's conviction was overturned in 2013 because his attorney failed to present evidence that the injuries leading to the child's death were sustained while Velez was 1,000 miles away. Medical records indicated the child's head ballooned in size in the months prior to his death in a manner that could only have been caused by head injuries. During that time, the child's mother was the only adult living with him. Velez's trial was also tainted by prosecutorial misconduct. The prosecution presented a witness who claimed that if Velez were not executed, he would be imprisoned under lax conditions with a risk for escape, making him a "future danger." The Texas Court of Criminal Appeals said this testimony was false and contrary to known prison regulations, which the prosecution knew. Velez agreed to the no-contest plea so he could rejoin his family without the delay of a retrial, even though a retrial might have fully exonerated him.

Supreme Court Begins New Term with at Least One Capital Case

The U.S. Supreme Court will begin its 2014-15 term on October 6. One of the cases the Court will hear during its first month is Jennings v. Stephens, a Texas death penalty case involving ineffectiveness of counsel and whether a separate appeal is necessary for each such claim. Oral arguments will take place on October 15. The Court has been asked to review an appeal from Scott Panetti, another death row inmate from Texas, who may be mentally incompetent. Last year, the Supreme Court struck down Florida's strict IQ cutoff for determining intellectual disability. In that case, Hall v. Florida, the Court concluded that "Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world."

BOOKS: "Just Mercy" by Bryan Stevenson

Bryan Stevenson, founder of the Equal Justice Initiative in Alabama, has written a new book, Just Mercy, about his experiences defending the poor and the wrongfully convicted throughout the south. It includes the story of one of Stevenson's first cases as a young lawyer, that of Walter McMillian, who was eventually exonerated and freed from death row. McMillian, a black man, had been convicted of the murder of a white woman in Monroeville, Alabama. His trial lasted just a day and a half, prosecutors withheld exculpatory evidence, and the judge imposed a death sentence over the jury's recommendation for life. Archbishop Desmond Tutu said of the book, “Bryan Stevenson is America’s young Nelson Mandela, a brilliant lawyer fighting with courage and conviction to guarantee justice for all. Just Mercy should be read by people of conscience in every civilized country in the world to discover what happens when revenge and retribution replace justice and mercy. It is as gripping to read as any legal thriller, and what hangs in the balance is nothing less than the soul of a great nation."

REPRESENTATON: Death Row Inmate Received Bizarre Defense

Phillip Cheatham was represented at his death penalty trial by a lawyer who failed to develop a readily available alibi defense and portrayed Cheatham as a possible killer. The lawyer, Ira Dennis Hawver (pictured at his disbarment hearing, left), presented Cheatham as a drug-dealing killer who would not have left a witness alive to identify him and would have taken fewer shots to kill the victims. Hawyer admitted he might not have jumped through every "American Bar Association hoop" in defending his client. He appeared at his disciplinary hearing before the Kansas Supreme Court dressed as Thomas Jefferson. In overturning Cheatham's conviction in 2013, the state Supreme Court concluded, "Hawver's representation bore a greater resemblance to a personal hobby engaged in for diversion rather than an occupation that carried with it a responsibility for zealous advocacy."

INNOCENCE: Attorney for Freed Death Row Prisoner Calls Case a "Tragedy"

In an op-ed for the Washington Post, Kenneth Rose, an attorney for the recently freed Henry McCollum, expressed his frustrations with the death-penalty system that allowed such mistakes to happen in the first place: "I am angry that we live in a world where two disabled boys can have their lives stolen from them, where cops can lie and intimidate with impunity, where innocent people can be condemned to die and where injustice is so difficult to bring to light. As I lie awake at night, mulling over the maddening details of this case, I wonder: How many more Henry McCollums are still imprisoned, waiting for help that will never come?" He described the hardships McCollum experienced on death row, including seeing other inmates being executed. "He became so distraught during executions that he had to be put in isolation so he wouldn’t hurt himself," Rose said. McCollum only saw his family on rare occasions when they could make the long drive from New Jersey to North Carolina, and both his mother and grandmother died while he was imprisoned. Read the op-ed below.

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.

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