Alabama Prisoner Seeks U.S. Supreme Court Review of Attorney Conflict of Interest Case
Whose interests does a lawyer represent, the capital defendant whose life is at stake or the abusive father paying for his defense? Alabama death-row prisoner Nicholas Acklin (pictured) is seeking U.S. Supreme Court review of that issue because he alleges that the lawyer who represented him at trial had a financial conflict of interest that affected the way he represented Acklin in the penalty phase of his capital trial. Nick Acklin’s father, Theodis Acklin, paid for the legal services of Behrouz Rahmati to represent his son in the 1998 death-penalty trial. Two days before trial, as Rahmati belatedly investigated his client’s background, he learned from Nick’s mother, Velma, that Theodis had physically abused her, Nick, and Nick’s brothers, holding them at gunpoint and threatening to kill them. Rahmati asked Theodis to testify about the abuse, believing that the mitigating factor could help persuade the jury to spare Nick’s life. Theodis then gave Rahmati an ultimatum: “You tell Nick if he wants to go down this road, I’m done with him” and “done helping with this case.” Rahmati told the jury nothing about the child abuse, instead presenting testimony from Theodis that Nick had been raised in a “Christian home” with “good values.” The jury then voted 10-2 to recommend a death sentence, and the trial court imposed the death penalty, reasoning that, unlike “most killers” who are the products of abusive childhoods, Nick had chosen to reject the good values with which he had been raised.
Acklin’s petition for Supreme Court review is supported by friend-of-the-court briefs filed by four legal ethics scholars and by former Alabama appeals court judges and presidents of the Alabama State Bar. The brief of the legal ethics professors urges the Court to overturn Acklin’s death sentence, saying that Rahmati “labored under an acute and obvious conflict of interest” that violated ethics norms and rules of professional responsibility applicable in every jurisdiction in the United States. Once Theodis threatened to withdraw funding, the scholars wrote, Rahmati had a clear conflict: “He could serve his client’s interest by making the best argument possible against the imposition of the death penalty, or he could protect his own interests by avoiding antagonizing the paymaster.” At that point, they wrote, “ethics rules unanimously required Rahmati to secure an alternative fee arrangement or obtain Acklin’s informed consent to the conflict, or else seek to end the representation. None of these things occurred.” Instead, without providing Acklin the advice of conflict-free counsel, Rahmati had Nick sign a “waiver” stating that he did not want to raise the abuse issue during his trial.
The former judges and bar presidents—including Alabama Supreme Court Chief Justice Ernest Hornsby, Justice Ralph Cook, and Alabama Court of Criminal Appeals Presiding Judge William Bowen—wrote that “The obligation of loyalty is at its most acute in a death penalty case, where its disregard may cost one’s client his life.” Rahmati’s conduct, they wrote, was an “utter abandonment of his client’s interests” that was exacerbated by counsel’s incompetence. “Any reasonable mitigation investigation would have revealed childhood abuse by Acklin’s father months before trial,” they wrote, when “counsel could have avoided the conflict by not becoming financially beholden to Acklin’s abuser.” Counsel also violated the duty of candor to the court, the judges and bar presidents wrote, “by knowingly presenting false and misleading testimony [that] the trial court expressly relied upon … in sentencing Acklin to death, while counsel stood silent.”
Nick Acklin’s lawyers have asked the U.S. Supreme Court to overturn his death sentence and clarify the rules regarding attorney conflicts of interest. In 2013, an Alabama trial judge held an evidentiary hearing, ultimately rejecting Acklin’s claim. The legal ethics scholars’ brief called that decision a “departure from precedent and prevailing ethics norms.” The former judges urged the Supreme Court to intercede, saying Acklin’s execution under these circumstances would be unjust to him and would also damage “our system of justice itself.”
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After More Than Three Decades, Two Death-Row Prisoners Freed in California
Two former California death-row prisoners who had spent a combined 70 years in prison are now free men, after federal courts overturned their convictions and local prosecutors agreed to plea deals on non-capital charges. James Hardy (pictured, left) was freed on February 14, 2019 after pleading guilty to two counts of first-degree murder in exchange for a suspended sentence and release on probation. Freddie Lee Taylor (pictured, right) was released on February 20 after pleading guilty to manslaughter and a sentence of time served. Both men have claims of innocence, but their plea deals make them ineligible for DPIC’s Innocence List. Each spent more than 30 years on death row.
James Hardy was convicted and sentenced to death in Los Angeles in 1984 for the murder of Nancy Morgan and her son, Mitchell Morgan. Hardy was tried along with two co-defendants, Mark Reilly and Clifford Morgan, the husband and father of the victims. Clifford was convicted of hiring Reilly and Hardy to kill his family so he could collect insurance money. Prosecutors argued that Hardy was the actual killer and Reilly the middleman in the conspiracy. On appeal, Hardy argued that his trial attorney had been ineffective because he had failed to investigate or present evidence that the prosecution’s key witness was actually the killer. The California Supreme Court overturned Hardy’s death sentence, and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit later overturned his conviction, writing, “Hardy’s attorney failed him, and the State of California failed Hardy by putting a man on the stand that it should have known committed the crime.” The court said, “there is a substantial likelihood that the jury would not have convicted Hardy had [his trial lawyer] performed effectively.” Rather than retry Hardy, the Los Angeles District Attorney’s office agreed to a plea deal.
Freddie Lee Taylor was convicted and sentenced to death in Contra Costa County in 1986. Taylor had experienced severe trauma and abuse as a child, started using drugs by the age of 10, and was housed from age 13 to 17 in a juvenile detention center that was described in court records as a “gruesome, dehumanizing and frightening world where rape, beatings and fear were constant.” He was arrested in 1984 during a “family dispute” and was sent to a mental institution, where he attempted suicide. Despite doctors’ recommendations that he be placed in a mental hospital because he was a danger to himself or others, he was released by hospital staff. He burglarized the home of 84-year-old Carmen Vasquez, leaving fingerprints in her home. When she was murdered days later, he was identified as a suspect because his fingerprints were at the crime scene. Taylor’s long history of mental illness was ignored at his trial, where his lawyer never requested and the court did not independently order a competency evaluation. His appeal lawyers argued that his conviction was invalid because he was not competent to stand trial. A federal judge reversed Taylor’s conviction in 2016 and the Ninth Circuit upheld that decision in 2018, saying there was insufficient evidence to accurately assess Taylor’s mental health at the time of the crime and his trial. The federal court gave Contra Costa County prosecutors 60 days to decide whether to retry him, but they instead agreed to the plea deal. “Had he not had the benefit of zealous appellate lawyers dedicated to his cause, Freddie Lee Taylor may well have been executed,” Chief Public Defender Robin Lipetzky said. “His is but one case. Others like him who have meritorious claims may not be so fortunate. There are over 700 more people on death row — many waiting for an attorney to be appointed to their case and others still waiting for their cases to be finally resolved by the courts.”
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Georgia Approaches Five Years With No Death Sentences
For the first time since Georgia brought back the death penalty in 1973, the state will go five years without imposing any death sentences. No jury has handed down a death sentence since March 2014 and, with no capital trials scheduled for February or March, the state is nearly certain to reach the 5-year milestone. The decline in death sentencing is even more dramatic in light of the fact that, prior to 2015, Georgia had never gone two consecutive years without a death sentence. Experts attribute the decline primarily to two factors: improved death-penalty representation and the availability of life without parole.
Georgia’s Office of the Capital Defender — a statewide death-penalty public defender office — represents nearly everyone facing the death penalty in the state. The capital defender has reduced the number of death sentences by thoroughly investigating the life and mental health histories of its clients and working with prosecutors before trials even begin to reach non-capital dispositions. In December 2015, Jerry Word, who heads the state defender office, credited those efforts with preempting numerous capital trials. Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, told the Atlanta Journal-Constitution in January 2019 that the capital defender’s office “has become real good at identifying mitigating factors for a defendant and talking about that with prosecutors long before lines are drawn in the sand. This has made a real difference, and you save the resources and the time required of a death-penalty case and the victims don’t have to go through the years-long process.” In 2014, only one of the state's 19 potential capital cases ended in a death sentence and, by the end of 2015, that case had been the only one of the preceding 71 cases handled by the capital defender that had resulted in a death verdict. Since 2015, the capital defender has closed 69 death-penalty cases, of which just five went to trial and none resulted in a death sentence.
Both defense attorneys and prosecutors said that the availability of life without parole as a sentencing option also has fundamentally changed the way potentially capital cases are tried and the verdicts juries reach. Prior to 2009, life without parole was not an option in Georgia unless prosecutors actually sought the death penalty. Now, prosecutors may seek life without parole without capitally prosecuting a defendant. Cobb County District Attorney Vic Reynolds said, “[t]he majority of prosecutors around the state are now convinced that a life-without-parole sentence actually means what it says. It’s made a huge difference.” As a result, prosecutors now file notices to seek death much less often. In 2005, Georgia prosecutors filed 40 notices of intent to seek the death penalty. By 2011, that number had dropped to 26, and in 2017, it was just three.
The decline in death sentences paints a sharp contrast between the way cases were handled in the past and how they are handled today. According to Steve Bright, former director and president of the Georgia-based Southern Center for Human Rights, the people on Georgia’s death row did not commit worse crimes than today’s defendants, they simply faced a worse system. The state has executed 19 prisoners since a jury last imposed a death sentence in the state, in cases criticized as out of step with current practices and emblematic of systemic problems with the state’s death penalty. “Those are people who were sentenced to death some time ago often with lawyers who were not qualified to try a death-penalty case,” Bright said, describing Georgia’s death-row prisoners. “They are also people who would not be sentenced to death today.”
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New Voices: Former Texas Criminal Appeals Judge Suggests “Pause” on Texas Death Penalty
Retiring Texas Court of Criminal Appeals judge and former prosecutor Elsa Alcala now believes that the death penalty is unreliably and discriminatorily applied in the nation’s most aggressive capital punishment state. In a new Houston Chronicle “Behind the Walls” podcast, Judge Alcala – who calls herself “a Republican hanging on by a thread” – told reporter Keri Blakinger, “I think we know enough right now to even call for a moratorium or just to pause all of this and to say, you know, ‘What is going on? Why does Texas have such a high percentage of people who get the death penalty and are executed as compared to the rest of the country?’”
Hired as a prosecutor by Harris County District Attorney Johnny Holmes, who gained notoriety as one of the nation’s deadliest prosecutors, Alcala spent nine years trying capital cases in the DA’s office of the country’s leading death-sentencing county. She then served as a county trial judge before being appointed by then-governor George W. Bush to serve on the state’s highest criminal court, the Texas Court of Criminal Appeals. As she was exposed to a range of problems in Texas death penalty cases, her views on the capital punishment evolved. She became a skeptic of capital punishment, often dissenting from denials of death-penalty relief and, in the case of Julius Murphy, called on the court to consider whether the state’s death penalty was constitutionally administered. When she left the bench, Judge Alcala accepted a policy role at the Texas Defender Service, where she will advocate for criminal justice reform. In an interview with the Texas Tribune, she joked, “[m]aybe I can have more success at the legislative level to get somebody to understand that there are some real true problems.”
In the podcast interview, Alcala cites a range of factors that changed her views about capital punishment. She discusses ineffective lawyers and parole laws that, at the beginning of her career, forced jurors to choose between a 15-year prison sentence and a death sentence for death-eligible defendants. “What do you do with these people who ... got there back to in the 90s when we know for a fact that the lawyers were not doing what they should have been doing in my mind?” Alcala asked. “And then the question is, as they come up to be executed, are we going to continue to execute them and tolerate the fact that things were done imperfectly? … I think, still percolating through all of that is that a lot of those [cases] are subject to that old parole law.”
When asked about the decline of the death penalty in Texas, Alcala said, “It is on the decline significantly. Whether it will ever go away and when it will go away – I don't know, I think it is imperfect. More accurately, I should say it is unreliable – I have lost faith in the reliability of the death penalty. And that is what underlies my involvement with the Texas Defender Service. It is: If you're going to have the death penalty, then do it correctly. You know, give them a good trial lawyer, give them a good appellate lawyer, give them a good habeas lawyer at the state level, give them a good federal lawyer and don't let racial prejudice at all influence anything that's going on.” The death penalty, she said, “is just not reliable. It’s not something that I can say is being done the way that it should be done to give you confidence in it as a punishment form. … I think, why is Texas so out of line with the rest of the country? It can't be that our people are worse, right? I mean, Texans are good people. Are our crimes worse than the rest of the country? I don't think so. Are our people worse than the rest of the country? I don't think so. So somehow we are out of line.”
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Supreme Court Lets Death Sentence Stand for Prisoner Whose Attorney Presented No Mitigating Evidence
Over a sharp dissent by three justices, the United States Supreme Court has let stand the death sentence imposed on a Georgia prisoner who was suffering from dementia, brain damage, and borderline intellectual functioning, but whose trial lawyer failed to present any mitigating evidence. On January 7, 2019, the Supreme Court denied the petition for writ of certiorari filed on behalf of death-row prisoner Donnie Cleveland Lance seeking the Court’s review of the Georgia Supreme Court's denial of relief in his case. Justice Sonia Sotomayor – joined by Justices Ruth Bader Ginsburg and Elena Kagan – dissented, writing that “the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied.”
Lance was sentenced to death by a Georgia court for the 1997 murder of his ex-wife and her boyfriend. Lance’s trial lawyer – a solo practitioner who was convinced he could persuade the jury of Lance’s innocence – asked the trial court to appoint a second lawyer to handle any potential penalty phase. The court denied that request and also denied a defense motion for funds to retain expert witnesses to challenge the range of experts hired by the prosecution in the case. After the court denied his motions, Lance’s lawyer conducted no penalty-phase investigation and did nothing to prepare for the penalty phase. Following Lance’s conviction, counsel made no penalty-phase opening statement, called no witnesses, and presented no mitigating evidence. In his cursory closing argument, counsel asked the jury to think of Lance’s family and to not seek vengeance.
New counsel represented Lance in his state post-conviction proceedings and presented extensive evidence of Lance’s serious cognitive impairments. Four mental health experts agreed that Lance had brain damage in his frontal lobe, that his IQ was on the borderline for intellectual disability, and that he suffered from clinical dementia. While the three defense experts agreed that Lance’s brain damage significantly impaired his ability to control his impulses and conform his conduct to the law, the state’s expert disagreed about the extent of his impairment. The trial court overturned Lance’s death sentence, ruling that counsel had provided ineffective representation. However, the Georgia Supreme Court reversed, holding that while counsel’s performance was deficient, the presentation of mitigating evidence would have been futile given the facts of the murder. On federal habeas corpus review, the Georgia federal courts ruled that the Georgia Supreme Court had not unreasonably applied Supreme Court precedent when it upheld Lance’s death sentence.
The three-justice dissent from the U.S. Supreme Court’s decision not to intervene argued that the Georgia Supreme Court decision was “an objectively unreasonable application” of U.S. Supreme Court precedent and had “mischaracterized or omitted key facts and improperly weighed the evidence.” The evidence of Lance’s “‘serious’ and ‘significant’” mental impairments, Justice Sotomayor wrote, “reasonably could have affected at least one juror’s assessment of whether Lance deserved to die for his crimes, and Lance should have been given a chance to make the case for his life.” Instead, she said, “Lance may well be executed without any adequately informed jury having decided his fate.”
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