Representation

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."

Louisiana Inmate Likely to Be Freed After 30 Years on Death Row

UPDATE: Louisiana Judge Ramona Emanuel ordered Glenn Ford to be “unconditionally released from the custody of the Louisiana Department of Corrections.” (KTAL NBC News, Mar. 11, 2014). Glenn Ford, who has spent 30 years on Louisiana's death row is likely to be freed soon, after prosecutors filed motions to vacate his conviction and sentence. Prosecutors said they recently received "credible evidence" that Ford "was neither present at, nor a participant in, the robbery and murder" of which he was convicted in 1984. Ford, who has always maintained his innocence, was tried and sentenced to death by an all-white jury. One of the witnesses against him said at trial that police had helped her make up her story. A state "expert" who testified about the victim's time of death had not even examined the body. Ford's lead trial attorney had never tried a jury case before. A second attorney, two years out of law school, worked at an insurance defense firm. They failed to hire any experts to rebut the prosecution's case because they believed they would have to pay for the experts themselves. The Louisiana Supreme Court earlier said it had "serious questions" about the outcome of the trial, but did not reverse Ford's conviction. Ford may have been involved in trying to pawn jewelry from the victim that he received from one of the original codefendants.

Supreme Court Returns Case to Alabama Because Attorney Was Ignorant of the Law

On February 24, the U.S. Supreme Court unanimously ordered an Alabama court to reconsider the case of Anthony Hinton, who has maintained his innocence since he was sentenced to death 28 years ago. Mr. Hinton's lawyer wrongly believed that he could spend only $1,000 on a firearms expert during the trial, and as a result, hired a witness whom he knew was unqualified, and who the Court said was "badly discredited" by the prosecution. Hinton's appellate lawyers later claimed that his trial lawyer's mistake constituted ineffective assistance of counsel. During Hinton's appeals, three experts testified that they could not conclude Hinton's gun had fired the bullets used in the crime, essentially rebutting the prosecutor's primary evidence. Bryan Stevenson of the Equal Justice Initiative in Alabama, who has represented Hinton since 1999, said, "There’s dramatic evidence that he’s been wrongly convicted and no one can credibly assert that a capital defendant can get the assistance he needs for $1000." The Court returned the case to Alabama's courts to determine whether the trial's lawyer error preudiced the outcome of the case.

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