Supreme Court Declines to Review Death Penalty Case in Which Georgia Defendant was Forced to Reenact the Murder While in Shackles

The U.S. Supreme Court has declined to review a Georgia death-penal­ty case in which the pros­e­cu­tion was per­mit­ted to make a vis­i­bly shack­led defen­dant reen­act the mur­der in front of the jury, while his defense coun­sel raised no objection.

In a deci­sion issued on April 19, 2021, the Court denied the peti­tion for writ of cer­tio­rari filed by lawyers for Georgia death-row pris­on­er Frederick Whatley (pic­tured). Justice Sonia Sotomayor dis­sent­ed, writ­ing that ​“counsel’s unrea­son­able fail­ure to object to Whatley’s shack­ling was plain­ly prej­u­di­cial.” She said ​“defense counsel’s fail­ure to object to Whatley’s unnec­es­sary shack­ling ren­ders his death sen­tence not only unre­li­able, but unconstitutional.” 

Whatley’s lawyers had argued that his death sen­tence should be over­turned because his court-appoint­ed tri­al coun­sel had pro­vid­ed inef­fec­tive rep­re­sen­ta­tion in the penal­ty phase of his tri­al. Counsel, who was noto­ri­ous for alle­ga­tions of racial bias and inef­fec­tive­ness in oth­er cap­i­tal cas­es, dis­mis­sive­ly per­mit­ted Whatley to be restrained in man­a­cles and leg irons dur­ing the penal­ty phase, say­ing ​“well, he’s con­vict­ed now.” He then agreed to let the pros­e­cu­tion use Whatley as a prop to reen­act the mur­der ful­ly shack­led, even after the pros­e­cu­tor expressed con­cern about hav­ing the jury see Whatley walk to the wit­ness stand in shackles.

The Court’s deci­sion let stand a rul­ing by a divid­ed pan­el of the U.S. Court of Appeals for the Eleventh Circuit that denied Whatley’s inef­fec­tive­ness claim. ​“The Supreme Court of Georgia rea­son­ably con­clud­ed that the shack­les had lit­tle effect on the jury in this case,” the pan­el major­i­ty wrote, because ​“the shack­les were triv­ial in light of evi­dence before the jury.” The dis­sent argued that the state court’s deci­sion unrea­son­ably ignored U.S. Supreme Court caselaw that had declared a cap­i­tal defendant’s appear­ance before the jury in shack­les to be ​“inher­ent­ly prejudicial.”

In a case that raised racial con­cerns, Whatley, who is Black, was con­vict­ed of mur­der­ing a white vic­tim, Ed Allen, dur­ing the course of rob­bing Allen’s bait shop and liquor store. The pros­e­cu­tion claimed that Whatley killed Allen to elim­i­nate wit­ness­es, but Whatley main­tained that he had shot Allen when the own­er pur­sued him with a gun as Whatley fled the store.

Whatley was rep­re­sent­ed at tri­al by Johnny B. Mostiler, the only lawyer for all indi­gent defen­dants in Spalding County. Billing records obtained by Whatley’s appeal lawyers indi­cat­ed that Mostiler spent a total of 158 hours on Whatley’s case, 55 of which were spent in court. Mostiler had no co-coun­sel and retained no bal­lis­tics or crime scene expert.

Whatley alleged that Mostiler pro­vid­ed con­sti­tu­tion­al­ly defi­cient rep­re­sen­ta­tion by not con­duct­ing a basic mit­i­ga­tion inves­ti­ga­tion in his case and in fail­ing to object to his visible shackling.

Mostiler’s History of Bias and Ineffective Representation

Whatley’s case is one in a series of cap­i­tal cas­es in which Mostiler’s rep­re­sen­ta­tion has come under fire. In the case of Kenneth Fults, an intel­lec­tu­al­ly dis­abled Black defen­dant exe­cut­ed by Georgia on April 12, 2016, jurors sub­mit­ted that Mostiler slept through por­tions of the tri­al. His appeals lawyers argued that Mostiler had failed to inves­ti­gate and present to the jury evi­dence that Fults was intel­lec­tu­al­ly dis­abled and ​“func­tions in the low­est 1 per­cent of the pop­u­la­tion,” and that he con­duct­ed no inves­ti­ga­tion into mit­i­gat­ing evi­dence that Fults had been sub­ject to chron­ic trau­ma and abuse through­out his childhood.

In Curtis Osborne​’s case, fed­er­al habeas cor­pus coun­sel pre­sent­ed evi­dence that Mostiler had failed to inform Osborne that pros­e­cu­tors had offered him a plea deal for a life sen­tence. They alleged that the fail­ure was a direct prod­uct of racial ani­mus, pre­sent­ing an affi­davit from a White client of Mostiler’s that, before tri­al had begun, Mostiler told him that “[t]he lit­tle n***r deserves the death penal­ty” and lat­er repeat­ed ​“that lit­tle n***r deserves the chair.” The fed­er­al court ruled that the claim was waived and Osborne was exe­cut­ed on June 4, 2008.

And in a third cap­i­tal case, decid­ed on appeal by the Eleventh Circuit on April 27, 2021, defense lawyers pre­sent­ed evi­dence that Mostiler failed to obtain a men­tal health eval­u­a­tion for anoth­er intel­lec­tu­al­ly dis­abled client, Willie Pye, even after the prosecution’s expert had mea­sured Pye’s IQ below the thresh­old for intel­lec­tu­al dis­abil­i­ty. In a unan­i­mous rul­ing, the cir­cuit pan­el found that Mostiler was inef­fec­tive for fail­ing to inves­ti­gate and present exten­sive evi­dence of ​“severe phys­i­cal abuse, neglect and endan­ger­ment, low intel­lec­tu­al func­tion­ing, depres­sion, and extreme pover­ty,” among oth­er mitigating evidence.

The Crime Reenactment

After Mostiler approved Whatley’s appear­ance in vis­i­ble shack­les, the pros­e­cu­tor direct­ed Whatley to reen­act the crime, giv­ing him a plas­tic gun and plac­ing him­self in the role of a vic­tim. The jury then saw a shack­led Whatley point­ing a gun at the pros­e­cu­tor. With the image of a shack­led Black man with a gun still fresh in their minds, the pros­e­cu­tor argued in clos­ing that Whatley was a future dan­ger, and the jury sen­tenced Whatley to death.

Whatley raised the issue of inef­fec­tive assis­tance of coun­sel in appeals to Georgia courts and in fed­er­al habeas cor­pus pro­ceed­ings. A Georgia fed­er­al dis­trict court grant­ed habeas cor­pus relief on Mostiler’s fail­ure to con­duct a mit­i­ga­tion inves­ti­ga­tion, but it denied relief on Whatley’s shack­ling claim. The Eleventh Circuit reversed that grant of relief.

In dis­sent from the denial of cer­tio­rari review, Justice Sotomayor not­ed the Court’s long his­to­ry of rul­ings that ​“shack­ling is high­ly like­ly to be prej­u­di­cial at a cap­i­tal sen­tenc­ing.” ​“Chains paint a defen­dant as an imme­di­ate threat,” she wrote. ​“Jurors faced with a defen­dant in shack­les will find it more dif­fi­cult to con­sid­er the defen­dant as a whole per­son and to weigh mit­i­gat­ing evidence impartially.”

Sotomayor described the impact of the shack­ling on Whatley’s sen­tenc­ing hear­ing: ​“Whatley’s chains clanked and rat­tled with every move, con­stant­ly remind­ing the jury that the court appar­ent­ly believed he might do more than just pre­tend to kill some­one in the court­room if left unre­strained.” The pros­e­cu­tion, she said, then ampli­fied the jurors’ fear of Whatley by telling them “[t]his man should be giv­en the death penal­ty because he is dan­ger­ous, he has had a his­to­ry of vio­lence, he’s nev­er going to get any bet­ter than what you’ve seen right now.”

She con­clud­ed that Whatley should have been grant­ed a new sen­tenc­ing pro­ceed­ing, writ­ing “[i]t is hard to imag­ine a more prej­u­di­cial exam­ple of needless shackling.”