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.

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Human Rights Group—Politically Motivated Use of Death Penalty Widens in Saudi Arabia

Executions have soared in Saudi Arabia amid widening pursuit of politically motivated death sentences, mass death penalty trials, and use of the death penalty against female activists, according to a European-based Saudi human rights organization. In its 2018 Death Penalty Report: Saudi Arabia’s False Promise, issued January 16, 2019, the European Saudi Organization for Human Rights (ESOHR) said Saudi Arabia conducted at least 149 executions in 2018, more than double the number conducted in 2013, continuing a four-year surge the group associates with the ascension of King Salman to the throne in January 2015. Half of those executed were foreign nationals, including 33 from Pakistan and women from Ethiopia and Indonesia. ESOHR reported that the Saudi government concealed at least one execution and failed to announce the execution of the Indonesian woman, and the human rights group expressed concern that the actual number of executions in the country may be higher. 

The Saudi royal family has sought to deflect international criticism of its escalated use of the death penalty by pointing to the use of capital punishment by the United States and other countries. In an April 2018 interview with TIME magazine, Saudi Crown Prince Mohammed bin Salman deflected a question on whether the Kingdom would reduce the number of public beheadings and executions in his country, saying: “I believe until today the United States of America and a lot of states, they have capital punishment. We’ve tried to minimize [its use],” he said, and suggested that the monarchy was working with the Saudi parliament on an initiative to change punishments for some offenses from execution to life in prison. The ESOHR report, however, said bin Salman’s statement “is not reflected in the death penalty statistics of 2018. Execution rates have sky rocketed [sic] in the last four years [and] do not indicate any attempts to ‘minimise’ or ‘reduce’” death penalty use. 

ESOHR’s report catalogues an intensified use of “politically motivated death sentences … against an increasing spectrum of government critics,” including human rights advocates, non-violent clerics, and other political opponents. It lists among the politically motivated death sentences the case of Israa al-Ghomgham, the first female activist to face execution in Saudi Arabia for non-violent human rights-related work. Al-Ghomgham was detained in December 2016 during a raid on her home. Her case is being prosecuted in Saudi Arabia’s Specialized Criminal Court, which was established to address acts of terrorism. However, Oliver Windridge – an international human rights lawyer who has written briefs supporting al-Ghomgham – says that its “focus appears to have moved from terrorist suspects to human rights defenders and anti-government protesters.” The ESOHR report describes the terrorism charges against al-Ghomgham as “trumped up” and the trial proceedings as “grossly unfair.” UN human rights experts also have condemned the prosecution, saying that “[m]easures aimed at countering terrorism should never to be used to suppress or curtail human rights work.” 

ESOHR says that 59 Saudi prisoners are currently at risk of imminent execution, including eight who were minors at the time of their purported crimes and twelve men convicted of spreading the Shia faith and allegedly spying for Iran. 

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