Georgia Lawyers Seek to Intervene After Brain-Damaged Defendant Permitted to Represent Herself in Death-Penalty Trial

Arguing that a brain-dam­aged woman fac­ing the death penal­ty for the starv­ing death of her young daugh­ter ​“was inca­pable of rep­re­sent­ing her­self,” lawyers from the Georgia Office of the Capital Defender have asked that they be reap­point­ed as her coun­sel if the case advances to the penal­ty-phase of her tri­al for life or death.

Gwinnett County Superior Court Judge George Hutchinson had per­mit­ted Tiffany Moss (pic­tured) to dis­charge her lawyers and rep­re­sent her­self, even though she has not reviewed the box­es of evi­dence turned over to her by the pros­e­cu­tion, pro­duced no list of defense wit­ness­es, and said she was plac­ing her defense in God’s hands. She asked very few ques­tions dur­ing pre­tri­al pro­ceed­ings, gave no open­ing state­ment, and did not cross-exam­ine wit­ness­es pre­sent­ed by the pros­e­cu­tion. When the pros­e­cu­tion rest­ed on April 26, Moss pre­sent­ed no defense. 

Veteran Atlanta crim­i­nal defense lawyer Jack Martin told the Atlanta Journal-Constitution: ​“It looks like a pro­longed sui­cide. God may be an all-pow­er­ful and mer­ci­ful force in nature, but he’s a lousy crim­i­nal defense lawyer.”

No Georgia jury has imposed a death sen­tence since 2014, large­ly because of the rep­re­sen­ta­tion pro­vid­ed by the Office of the Capital Defender. The office’s lawyers were rel­e­gat­ed to the role of stand-by coun­sel when Hutchinson per­mit­ted Moss to rep­re­sent her­self, although media reports indi­cate they had pre­vi­ous­ly filed a motion alert­ing the court to her brain damage. 

In their motion, the cap­i­tal defend­ers advised the court that ​“neu­ropsy­cho­log­i­cal test­ing data … showed the defen­dant to have dam­age to the pre­mo­tor and pre­frontal regions of the brain.” Dr. Don Stein, the Director of the Brain Research Laboratory at Emory University, told the Atlanta tele­vi­sion sta­tion 11 Alive that these por­tions of the brain ​“are very much thought to be inti­mate­ly involved in exec­u­tive func­tion, deci­sion mak­ing, and impulse con­trol.” Those brain func­tions are crit­i­cal to mak­ing ratio­nal judg­ments about self-representation. 

On April 25, the cap­i­tal defend­er lawyers filed a motion in the tri­al court to ter­mi­nate Moss’s self-rep­re­sen­ta­tion in a poten­tial death-penal­ty phase of the tri­al. The motion argued that “[t]he jury will have noth­ing upon which to base a life sen­tence [if Moss rep­re­sents her­self in the penal­ty phase], not because Mrs. Moss want­ed the death penal­ty, but because she was inca­pable of rep­re­sent­ing her­self. … Society’s inter­est in jus­tice is not served by such a one-sided and arbitrary proceeding.”

Moss’s case, and anoth­er tri­al in progress in Cleveland, Ohio, illus­trate the dif­fi­cul­ty the judi­cial sys­tem has in assess­ing the com­pe­tence of defen­dants to rep­re­sent them­selves and in ensur­ing reli­a­bil­i­ty of cap­i­tal pro­ceed­ings in which they are per­mit­ted to do so. A Cuyahoga County jury con­vict­ed Joseph McAlpin of aggra­vat­ed mur­der on April 18, 2019, after he had rep­re­sent­ed him­self in the guilt por­tion of the tri­al. Following his con­vic­tion, McAlpin asked the court for a mit­i­ga­tion report and a pre-sen­tence inves­ti­ga­tion to help him present mit­i­gat­ing evi­dence. To pro­vide time to com­plete these reports, the court delayed the start of the penal­ty phase until May 13. Life his­to­ry inves­ti­ga­tions typ­i­cal­ly take months to per­form and pro­vide infor­ma­tion crit­i­cal to the men­tal health eval­u­a­tion and to giv­ing the jury a full pic­ture of the defendant’s back­ground, upbring­ing, and impaired abil­i­ty to func­tion in society.

As death sen­tences decline nation­wide, many of those still sen­tenced to death are defen­dants whose cas­es involved the most unre­li­able tri­al pro­ceed­ings. In 2018, one of every sev­en death sen­tences was imposed with­out a unan­i­mous jury vote, often after defen­dants were per­mit­ted to waive crit­i­cal tri­al rights. Several of those defen­dants fired or refused to coop­er­ate with counsel.