Ohio Parole Board Recommends Clemency Because of Inadequate Representation

UPDATE: (Dec. 17). Gov. Kasich granted clemency to Ronald Post, following the Parole Board's recommendation. On December 14, the Ohio Parole Board (5-3) recommended clemency for death row inmate Ronald Post, saying his legal representation was ineffective and did not meet expectations for a death penalty case. Post is currently scheduled for execution on January 16, 2013.  The Board's recommendation concluded: "[A] majority of the members of the Board find it impossible to overlook the glaring omissions, missed opportunities, and questionable tactical decisions made by Post's several attorneys. The various deficiencies in Post's representation, viewed in totality, call into question whether Post's death sentence was imposed through the kind of just and credible process called for by a punishment of this magnitude." His lawyers issued a statement, saying, "In the nearly 30 years since his case began, Ronald Post has too often been failed by the attorneys assigned to represent him, beginning at his trial." Post's original attorney advised him to plead no contest to the charges against him, with the expectation that he would receive a life sentence. Instead, Post was sentenced to death. Despite his plea, Post has maintained his innocence, and there was evidence of other suspects involved in the crime. The final clemency decision is up to Gov. John Kasich.  

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EDITORIALS: Preserving Independent Funding for Death Penalty Representation

A recent editorial in the Miami Herald applauded a court decision finding that the costs of represening defendants in Florida death penalty cases should be kept separate from the judges’ annual budget. A state judge held it would be unconstitutional to have judges making decisions about attorneys' fees when the money for such expenses comes from the judges' own resources. The editorial stated, "We depend on the court system to dispense justice—period. Not justice on a budget, not justice on the cheap, not justice with 'ka-ching' in the back of a judge’s mind." The costs formerly came out of general state revenue. Death penalty attorney David Markus said the law would have made “judges think twice about paying a lawyer, knowing that he or she has to also think about paying his secretary or buying copier paper.” The editorial called on lawmakers to heed the recommendations of the Florida Innocence Commission, which made several recommendations to correct the high rate of wrongful convictions in the state. The editors wrote, “Lawmakers truly interested in reform would take the recommendations seriously, even though they require more-adequate funding. Instead, the Legislature has steadily chipped away at courts’ budgets for the past six years, while the volume of cases has increased. That’s a stumbling block to real reform.” Florida leads the country in exonerations from death row, with 23 wrongful convictions overturned since 1973.  Read full editorial below.

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Supreme Court Agrees to Hear Texas Case on Representation for Death Row Appeals

On October 29, the U.S. Supreme Court agreed to hear a death penalty case from Texas to determine whether inmates there can raise claims of inadequate trial representation in federal court if they were effectively prevented from raising such a claim in their state appeal by the further failure of their appellate lawyers. Lower courts considering this issue have held that an earlier Supreme Court ruling, Martinez v. Ryan (2012), which provided such a right in an Arizona case, does not apply in Texas because defendants have multiple opportunities to claim their lawyers failed them. The case is Trevino v. Thaler. Carlos Trevino's current lawyers argue that there was a great deal of mitigating evidence that the trial lawyers failed to find and present at trial. The case will probably be argued early next year.

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Tennessee Judge Overturns Capital Conviction Because of Undiscovered Evidence

On October 12, Tennessee Judge James Beasley Jr. (pictured) overturned the conviction and death sentence of Michael Rimmer because critical evidence, not presented at his trial, throws doubt on Rimmer's guilt. The court ruled that Rimmer’s "overburdened" trial lawyers repeatedly failed to uncover evidence that two other men were seen at the victim's last location around the time of her disappearance, and both had blood on their hands.  One of the men was already wanted in connection with another stabbing.  Moreover, one of the men was reportedly carrying what looked like a heavy object wrapped in a comforter and loaded it into the trunk of a car. The court found that the lead prosecutor in the case compounded the injustice by making “blatantly false, inappropriate and ethically questionable” statements to Rimmer’s defense lawyers, denying the existence of such evidence. The court ordered a new trial for Rimmer.

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MENTAL ILLNESS: Evangelical Leaders Call for Mercy for Condemned Inmate

On September 26, Florida Governor Rick Scott (pictured) agreed to temporarily stay the pending execution of John Errol Ferguson in order to allow time for a panel of psychiatrists to determine whether Ferguson is mentally competent. The day before, evangelical leaders, including Dr. Joel C. Hunter, Senior Pastor of the 15,000-member Northland Church in Central Florida, sent a letter to the governor urging that Ferguson be allowed to live. They wrote, “The State’s psychiatrists have consistently found, over 40 years, that Mr. Ferguson suffers from severe schizophrenia and mental impairment. Now a senior citizen, he still suffers from delusions and hallucinations....The jurors at Mr. Ferguson’s sentencing hearings did not hear evidence of his extreme and long-term mental illness, the horrific abuse he experienced as a child, or the traumatic brain injury he suffered as a result of a gunshot wound to his head as a young man, which further contributed to his mental illness. Any one of these factors might have persuaded his juries to spare his life and sentence him to life in prison, but his attorneys failed to present any mitigating evidence to the jurors.”  The letter concluded, "Our system must be humane and hold life sacred, while taking every step possible to support and facilitate the healing of victims."

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REPRESENTATION: Georgia Death Sentence Upheld Despite Drunk Trial Attorney

A federal appeals court upheld the death sentence of Georgia inmate Robert Holsey (pictured), despite the fact that Holsey's lead lawyer drank a quart of vodka every day during the trial and was about to be sued for stealing client funds.  The attorney himself testified that he “probably shouldn’t have been allowed to represent anybody.” The court assumed the attorney's incompetence, but gave great deference to the Georgia Supreme Court's opinion that his poor performance did not affect the outcome of even the sentencing phase of the trial.  Judge Rosemary Barkett dissented in the 2-1 decision, noting the jury never heard evidence that Holsey was abused so badly as a child that his neighbors referred to his home as "the torture chamber." Had the jury heard evidence of the "horrific child abuse," she wrote, he likely would not have been sentenced to death. Holsey’s appeals lawyer, Brian Kammer, said the jury did not hear that crucial evidence because Holsey’s lead trial attorney “opted to anesthetize himself with vodka rather than prepare adequately to defend against the death penalty. The 11th Circuit majority appears similarly to have anesthetized its sense of justice.”

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Lingering Case Demonstrates Problems With New Mexico's Earlier Use of Death Penalty

New Mexico abolished the death penalty for future offenses in 2009.  However, two people still face execution, including Timothy Allen (pictured), who has been on death row for nearly 17 years.  His superficial trial and woefully inadequate representation reveal systemic flaws in the state's application of capital punishment.  The lead attorney in Allen's trial had never tried a death penalty case before, and failed to research Allen's psychiatric history. Later investigation revealed that Allen had been diagnosed with and treated for schizophrenia and experienced auditory hallucinations. According to one psychiatric report, Allen was psychotic at the time of the murder for which he was sentenced to death, and committed the crime “while under the influence of command hallucinations, not willfully.” No witnesses were called to testify on Allen's behalf during the sentencing phase of his trial. The supervising attorney who assigned the inexperienced attorney to the case was himself subject to drug testing by a state disciplinary board and was of little help in the case.  Allen's current attorneys argue that the case would be tried very differently today and that he was deprived of his constitutional right to a fair trial.

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Pennsylvania Readies First Non-Volunteer Execution Since 1978; Defendant Killed Sexual Abusers

On August 8, Governor Tom Corbett of Pennsylvania signed an execution warrant for Terrance Williams for the 1984 murder of Amos Norwood.  The execution was set for October 3.  Although Gov. Corbett has signed 15 previous death warrants, all of those dates have been stayed because the defendant had not completed the ordinary appeals process.  Williams' death sentence and conviction, however, were affirmed by the federal Court of Appeals and his case was denied review by the U.S. Supreme Court.  Nevertheless, Williams' case remains controversial and his attorneys have filed additional petitions in state court.  His attorneys issued a statement in response to the death warrant, noting that Williams had been sexually and physically abused as a child and that he would be executed for killing two of those abusers.  “Most Pennsylvanians would agree that the death penalty is the punishment for the worst of the worst offenders, not for traumatized victims of sexual abuse who strike back at their abusers. Terry Williams’ story is one of horrific childhood sexual and physical abuse," said Shawn Nolan, one of Williams' attorneys.  Williams has expressed deep remorse for the murders.  Unfortunately, the jury at Williams' trial, “didn’t hear about his abusive childhood or that the two men he killed were two of his abusers. Also, jurors mistakenly believed that if they sentenced Terry to life in prison he would be eligible for parole. Several jurors now say they would have voted for life in prison without the possibility of parole instead of death if they had known this important information," according to the statement from the attorneys. 

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The Toll of Representing Those on Death Row

Bryan Stevenson, Executive Director of Equal Justice Initiative in Alabama, recently delivered the keynote address at the 30th anniversary celebration of the Open Door Community in Atlanta.  Mr. Stevenson discussed how defending those on death row often takes a personal toll on those engaged in this work, even to the point of feeling "broken."  But, he added, "I’ve learned some very basic things, being a broken person. I’ve learned that each person is more than the worst thing they’ve ever done. I believe that if somebody tells a lie, they’re not just a liar; if somebody takes something, they’re not just a thief; even if somebody kills someone, they’re not just a killer. And because of this, I believe that we have this need, this mission, this calling, to embrace them and to recognize this 'something else.'”  Read full text of Stevenson’s remarks here.

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Lack of Funding for Representation Delays Georgia Death Penalty Cases

A Georgia judge has removed Kelvin Johnson's public defenders from representing him in a death penalty case because his lawyers requested more time to prepare for trial.  Johnson was being represented by attorneys from the Georgia Capital Defender Office, who said a delay was needed because an overwhelming caseload and lack of funding precluded them from going forward at this time. The Georgia Capital Defender program, which was started to provide better representation to indigent capital defendants, began representing those facing the death penalty in 2005, but saw its funding drop from $7 million to $4.5 million in only three years. Insufficient funding has led to problems and delays in several cases, including one instance in 2010 when attorneys asked the Georgia Supreme Court to dismiss the charges against their client or bar the state from seeking the death penalty because they could not pay expert witnesses, attorney fees or investigators. Superior Court Judge David Roper, who dismissed the capital defenders from the Kelvin Johnson case, plans to appoint lawyers of his own choosing, calling the Capital Defender Office "systemically broken."  However, W. Travis Sakrison, executive director of the Defender Office, said the delay needed in the Johnson case arose from special circumstances and was not due to "systemic" problems at the Georgia Capital Defender.

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