Holmes: Why the Prosecution is Waiting to Decide Whether to Seek the Death Penalty

August 4, 2012

James Eagan Holmes has been charged with 24 counts of Murder in the First Degree and 116 counts of attempted murder for killing 12 people and wounding 58 during a shooting spree inside a movie theater at the midnight showing of the new Batman film, Dark Knight Rising.

Facts are difficult to come by because the Court “has issued a gag order on lawyers and law enforcement, sealing the court file and barring the University of Colorado, Denver from releasing public records relating to Holmes’ year there as a neuroscience graduate student.”

I have written two articles about the case here and here reviewing the potential civil liability of the University of Colorado to the victims of the shooting spree for the alleged failure of its employees, psychiatrist Dr. Lynne Fenton and the members of the university’s threat assessment team to warn the police about a possible threat to harm people that Mr. Holmes may have expressed to Dr. Fenton on or about the day that he formally withdrew in early June as a student in a Ph.D. program in neuroscience.

Probably due to the Court’s gag order, the school has not yet disclosed the specifics of Mr. Holmes’s statement to Dr. Fenton. All that we know so far is that she attempted to convene the mental health clinic’s threat assessment team to review what he said, but the team declined to do so because he had withdrawn from the school.

As I explained in my two articles, given the restrictive and limiting language in the Colorado statute, I believe it is unlikely that the university will be held liable to the victims of the shooting for failing to warn the police about Mr. Holmes. We will have to wait and see what Mr. Holmes said to Dr. Fenton before we can definitively wrap up this discussion.

Now I want to discuss a different subject in the case; namely, the death penalty. The prosecution has charged Mr. Holmes with two murder counts per homicide victim. The two charges contain different elements and basically allege two different ways to commit the same offense. CBS News explains:

Holmes is facing two separate charges for each person killed or injured. The second charge for each alleges that in killing or injuring, Holmes evidenced “an attitude of universal malice manifesting extreme indifference to the value of human life generally.”

The prosecution announced shortly after filing charges against Mr. Holmes, that it has not yet decided whether it will seek the death penalty, if Mr. Holmes is convicted of murder.

Translated into the language we speak, that means it is waiting for the defense to complete its mitigation investigation and submit its report to the prosecution to consider in determining whether to file a notice that it will seek the death penalty.

Mitigation evidence is any evidence about the defendant or the crime he committed that in fairness or in mercy calls for a sentence of less than death.

Mr. Holmes appears to suffer from a serious mental illness, possibly a type of schizophrenia. The defense likely has assembled a team of mental health experts who are testing and evaluating his competency to stand trial and well as his mental functioning. No doubt they have been reaching far back into his life collecting all existing school, medical and mental health records.

Mitigation investigation has developed into an art form as well as a necessary and highly specialized skill over the course of the past 30 years. The most common reason for appellate court reversals of death sentences has been ineffective assistance of defense counsel for failing to conduct a thorough mitigation investigation.

A diagnosis of schizophrenia would be powerful mitigating evidence, even if it did not establish legal insanity, because schizophrenia is a debilitating mental disease over which a person has little or no control. Therefore, traditional arguments for the death penalty that are based on the idea of holding people accountable for their actions by sentencing them to death, lose power in the face of evidence that the person is delusional, not like others, and incapable of making responsible decisions on a regular basis. Most people recognize that there is something fundamentally unfair about sentencing someone to death who lacked the capacity to make rational decisions.

Mr. Holmes may also satisfy the test for legal insanity. That is, that he suffers from a mental disease or defect such that he cannot distinguish between right and wrong and conform his conduct to the requirements of law. Insanity is another mitigating factor.

Regardless of his mental condition, however, he committed horrific acts that required sufficient capacity to plan and carry out a moderately complicated scheme.

When the prosecution receives the defense mitigation report, it will submit it to its own panel of mental health experts for review and comment.

Eventually, both sides will meet and engage in serious discussions regarding whether a mentally ill man should be executed or spend the rest of his life in prison without possibility of parole.

Whether the prosecution ultimately decides to file the notice that it will seek the death penalty will depend on the outcome of those discussions and the thoroughness and quality of the defense mitigation report.


Zimmerman: Is Mark O’Mara Clueless as well as Ineffective?

July 24, 2012

JD, who comments regularly at my site and who provided the invaluable overlay of a Google Earth Satellite photo onto the SPD Total Station diagram of the objects found at the crime scene, asked the following question:

His lawyer [Mark O’Mara] seems to want to make a point that GZ was still 17 at the time the cousin [W9] claims he was 18 and she 16. If none of this ever happened, what’s the point in making that claim?

Statutory rape statutes establish the age of consent, which is usually 16, and provide exceptions based on the age of the other person. In effect, these exceptions establish a sliding scale of criminal liability. For example, no crime would be committed if a 16-year-old boy had consensual sex with a 15-year-old girl.

I am not familiar with the Florida statutes, but O’Mara appears to have been pointing out that, even if W9’s allegation were true, it would not constitute a crime because she and GZ were too close in age.

That ignores her claim that she never consented to sexual contact.

Statutory rape statutes eliminate consent as a defense. Since she did not consent, the statutory rape statutes do not apply.

Assuming her allegations are true, we’re looking at rape and indecent liberties type offenses.

Rape requires proof of penetration “however slight,” and includes digital penetration.

Rape is generally classified into three degrees:

R1: forcible penetration while armed with a weapon;

R2: forcible penetration; and

R3: non-consensual penetration.

A victim is not required to physically resist in order to establish that she did not consent to sexual penetration. In other words, “no” means “no.”

I say “she” because W9 is a female and this article is about her allegations. It’s important to remember that males also can be victims of sex offenses. Jerry Sandusky’s sexual predation is a current example that is fresh in everyone’s mind.

Most date rapes fall into the R3 category where the perpetrator does not use force and the victim does not consent or physically resist.

During my career as a felony criminal defense lawyer, I did not see many cases that started out charged as R3. Instead, cases that started out as R2s and occasionally R1s were bargained down to R3s, due to proof difficulties.

I concede that my legal experience falls into the dreaded category of anecdotal information and I do not know if there are any studies that confirm it. Suffice to say that the R3 category has been a source of continuing debate in our society.

Indecent liberties offenses consist of fondling and may be forcible or non-consensual.

States also have statutes that exempt children from criminal prosecution below a certain age. I am not sure what it is in Florida, probably 10 or 12.

States also have statutes of limitation that prohibit prosecution after a certain time period passes. The states vary quite a bit in the area of sex crimes involving children because children are so reluctant to accuse their abusers until later in life, if at all.

I do not know whether GZ has any possible exposure to criminal charges based on W9’s allegations, given the passage of time.

I did not get the impression that W9 was seeking to have GZ charged with a criminal offense. I think she felt guilty for not reporting the abuse to the police because if she had, that might have changed his life in a way that would not have led to him killing TM.

She wanted the police to know that he is a frightening and intimidating person who lies and uses charm to manipulate and control others. She did not want him to lie, charm and talk his way out of responsibility for killing TM as he had gotten away with sexually abusing her for so many years.

That was the message she wanted to convey.

When O’Mara said GZ was still 17 at the time W9 claimed he was 18 and she 16, he was saying that even if GZ did what she claimed he had done to her, he did not commit a crime.

As with other aspects of this case, O’Mara seems utterly clueless.

Because she was not seeking to have him charged and I do not believe the prosecution is even considering charging him for what he did to her, I am not going to review Florida’s sex crime statutes to determine whether GZ has any potential exposure to criminal liability for rape, statutory rape and indecent liberties.

Such an inquiry and a discussion about it would be irrelevant and distracting. Readers who want to know can always look up the answer by reviewing the Florida Statutes.

Keep in mind that regardless whether the alleged misconduct constitutes a chargeable offense, it will not be admissible during the State’s case in chief pursuant to Rule 404(b). The only way the jury would get to hear about it would be if the defense opened the door by introducing evidence that GZ is a law abiding, peaceful and non-violent person who would not have killed TM, unless it was in self-defense.

Presumably, the defense would never risk opening that door.

As I demonstrated previously, but for O’Mara’s failure to let Judge Lester know that W9 had provided a tape recorded statement to law enforcement accusing GZ of digitally penetrating her vagina and fondling her multiple times during a 10-year period that began when he was 8 and she was 6, the public would not know about W9’s accusation.

He did not do his client any good by failing to keep her allegation from being released to the public.

In my title to this article, I asked if O’Mara was clueless as well as ineffective.

I think we know the answer.


Zimmerman: A Spectacular Fail!

July 19, 2012

Watt4Bob at Firedoglake posted a comment to my article, Should Mark O’Mara Withdraw as Counsel for George Zimmerman? He asked the following question, which probably is on most everyone’s mind this morning after the Sean Hannity interview of George Zimmerman last night.

I want to ask both Hannity and O’Mara what the hell good they think they did for that pathetic man, but I realize neither of them gives a damn and GZ is oblivious.

I can answer that question with three words:

EXPLOITATION. FOR. MONEY.

I am furious.

I cannot imagine myself, or any criminal defense attorney whom I respect, ever, under any set of circumstances, short of cardiac arrest, loss of consciousness or death, sitting passively beside my client as he denies any regret for killing an unarmed teenager, or anyone else for that matter, because it was “God’s plan” for him to die.

And to follow that statement with an “apology” to the kid’s parents in which he says he’s sorry they had to bury their child because he knows what it would be like to lose one of his as yet unborn children is . . . well,

What is it?

And all of this was delivered in a soft monotonous voice without any detectable trace of emotion as though he were describing doing the laundry.

Are there words that capture the depravity and emptiness of that shell of a human being?

If any of you were concerned whether the prosecution could prove beyond a reasonable doubt that George Zimmerman killed Trayvon Martin while acting with a depraved mind,, you need not worry any longer.

The prosecution must be drinkin’ the bubbly and dancin’ in the street.

I assure y’all, no client of mine would ever have said anything like that on national television with me present because I would have done something, anything, even ripped off my clothes and mooned Amerika in all my naked glory, just to shut him up.

And this appears to have been scripted.

Jesus Christ on a bicycle.

Can there be any doubt who is calling the shots for the defense?

George Zimmerman is representing himself with Mark O’Mara dancing to his tune while playing the role of his attorney.

If anyone still believes George Zimmerman is not a devious and manipulative person, please listen to this audio recording of a jailhouse telephone call when he called right-wing Pastor Terry Jones of let’s-all-of-us-sinners-party-on-the-lawn-burnin’-Korans fame to pray with him for the healing of America and ask him to cancel a pro-Zimmerman demonstration to calm people down.

Hell, listen to it anyway.

Just for the halibut.

(h/t to Crazy1946 @ my website for spotting this recorded conversation and posting a comment about it)


Zimmerman Case: Who Uttered the Terrified Scream for Help Punctuated by a Gunshot?

July 13, 2012

UPDATE: The defense has filed a Motion to Disqualify Judge Lester. Read it here. H/t to commenter Sharona Baby.

Both sides will be attempting to prove that their person is screaming for help because that is the central issue in the case, Zimmerman and his dad will say it’s him. TM’s parents and his cousin will say it’s TM. I would not be surprised if his girlfriend also identifies him as the person screaming.

Unclear at this point if audio experts can conclusively identify the source.

Two audiologists using different methodologies while working independently of each other claim they have excluded GZ as the source of the scream to a reasonable scientific certainty. They compared a recording of his speaking voice during his conversation with the dispatcher to the background scream on the recording of a neighbor’s 911 call.

An expert at the FBI Crime Lab has issued a report concluding that no opinion can be reached given the poor quality of the 911 recording.

Common sense indicates that the man with the gun would not have been screaming for help up until the precise moment that he pulled the trigger ending TM’s life. The terrified scream also is high pitched indicating a young person in fear for his life, rather than an adult male armed with a gun and, of course, GZ’s injuries were relatively minor and unlikely to have provoked him to scream in terror.

Given GZ’s track record for uttering inconsistent and provably false statements, I doubt that a jury will believe his claim.

Will the jury believe the father, or will it assign little weight to his testimony on the ground that he is trying to save his son from a long penitentiary sentence.

If I were a betting man, I would bet the jury will be more likely to believe the grieving mother and father who seek justice for the tragic loss of their unarmed son.

For these reasons, if I were GZ’s lawyer, I would be extremely concerned about the probable likelihood that the jury would conclude TM was screaming for help and begging for his life when, according to GZ, he “aimed” and shot him in the heart at point blank range.

Does that sound like self-defense or does it sound like an “act imminently dangerous to another and evincing a depraved mind regardless of human life?”

Recall the statutory definitions of “imminently dangerous conduct” and “evinces a depraved mind”:

Imminently dangerous conduct means conduct that creates what a reasonable person would realize as an immediate and extremely high degree of risk of death to another person.

A person evinces a depraved mind when he engages in imminently dangerous conduct with no regard for the life of another person.

Recall

The Florida jury instruction for second degree murder (Fla. Std. Jury Instr. (Crim.) 7.4) provides that an act is imminently dangerous to another and demonstrating a depraved mind if it is one that

1. A person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another

and

2. Is done from ill will, hatred, spite, or an evil intent

and

3. Is of such a nature that the act itself indicates an indifference to human life.

Would you be willing to bet 25 years in prison, which is the minimum mandatory sentence for second degree murder, that a jury would not find that shooting a terrified kid screaming for help constituted “ill will, hatred, spite, or an evil intent?

I did not think so.

So, what can you do, if you are GZ’s lawyer?

How, if at all, can you climb or get around this Everest that appears to block any meaningful chance to win the case?

If I were GZ’s lawyer, I would have him secretly tested in a sound lab to see if his screams “match” the scream in the background of the 911 call to a reasonable scientific certainty.

If it were a match, I would take it to the prosecutors and say “Checkmate, Got Yah!”

If GZ were excluded as the source, which is what I am expecting, I would never mention the test or the results.

The test and the results would not have to be disclosed since they would be protected from disclosure by the attorney-client work product privilege.

I know that might sound crazy to you but it’s true. I have arranged for private testing in many cases, usually involving DNA testing, and that is the way it works.

The only time the defense has to disclose the unfavorable results of expert witness testing is when the tests involve mental health as might be the case when the defense is insanity or diminished capacity. Even then the results do not have to be disclosed unless the defense asserts the defense.

Meanwhile, I would have thought that GZ’s lawyers would have arranged for this test while he was out before his bond was revoked. Maybe they didn’t have the time or the money to do the test. In any event, you can be certain that they would have introduced the result at the recently concluded bail hearing, if they had it and it helped their case.

They clearly did not, but given the relatively short opportunity to do the test between bond hearings, I don’t believe we can reasonably conclude they did the test yet.

The more time that passes without the defense saying anything about a test, the more likely the test was completed with unfavorable or inconclusive results.

Should that have already happened, or if it happens, we can be reasonably certain that the defense will never mention it, ever.

There is another possibility to consider. The prosecution could move for an order requiring GZ to submit to a voice analysis test, or scream analysis test, if you prefer.

There is no Fifth Amendment right to refuse to participate in such a test because the evidence is not considered testimonial. That is, the suspect or defendant is not being forced to testify against himself. For example, it’s permissible in a bank robbery case to have each person in a lineup step forward and utter some phrase the robber said, so that witnesses can compare the sound of their voices to the robber’s voice. It’s also permissible in a forgery case to require a suspect to provide a handwriting exemplar.

The prosecution has not expressed an inclination or desire to go there, perhaps due to the expert at the FBI Crime Lab who opined that the scream is unsuitable for comparison purposes.

That would not stop me or any good defense lawyer from pursuing the matter, especially since we know there are two experts who have relied on the 911 recording.

Where there are two, there will be more, and where there are some, there will be one.

Pick the most respected legitimate expert and if the results are favorable, use them.

The prosecution might object, but if it does, request a pretrial Frye/Daubert hearing with expert testimony on the admissibility of test results obtained using a novel scientific theory or methodology.

Under the present circumstances of this case, if defense counsel fail to go down this road, I think they would have failed to provide effective assistance of counsel, which they are required to do under the Sixth Amendment.


Behold President Obama: The Cowardly Assassin-In-Chief

June 7, 2012

Since the New York Times published an article about President Obama’s assassination-by-drone program, several writers, including Glenn Greenwald (here, here, here, here, and here), Tom Engelhardt (here), and Kevin Gosztola (here, here, here, here here and here) have posted articles condemning it.

I am appalled and sickened by Obama’s definition of a “militant” as any male of military age within the strike zone, unless posthumously determined to be innocent. This is a conclusive presumption of guilt and death sentence based on apparent age, gender and presence near an intended target, or in the case of signature strikes, mere association with others who also fit the definition and profile of a militant.

There is no discernible difference between this policy and the Vietnam War policy,

Kill ’em all and let God sort them out.

The decision to target a specific individual depends on the information available about that individual which may come from a variety of sources who are reliable and unreliable. The Attorney General and the President of the United States, who is a former Constitutional Law professor, assure us that the process by which the president decides whom to kill satisfies the Due Process Clause of the Fifth Amendment. Yet, the president does nothing more than review a Power Point production with a photo of the individual under consideration with a bullet point list of alleged roles and activities in which he has engaged.

I was a criminal defense attorney for 30 years defending people charged with felonies, including death penalty offenses, and a law professor for three years teaching Criminal Law, Criminal Procedure and Causes of Wrongful Convictions. I can assure y’all that the process by which he makes these decisions is materially indistinguishable from a Star Chamber Proceeding. That is precisely what the Due Process Clause was intended and designed to prevent.

Do not ever forget that the Due Process Clause includes the Sixth Amendment right to counsel and the right to present a defense. One cannot have due process without those rights.

Even with those rights, the presumption of innocence and a jury trial, innocent people are wrongfully convicted of crimes they did not commit. According to the Cardozo Innocence Project, 292 people innocent people have been exonerated by post-conviction DNA evidence.

The seven causes of wrongful convictions are:

1. Mistaken eyewitness testimony;

2. Police Misconduct;

3. Prosecutorial Misconduct;

4. False Confessions;

5. Forensic Fraud;

6. Ineffective Assistance of Counsel; and

7. Jailhouse Informant Testimony

Note that only a small percentage of cases have biological evidence where it is possible to conduct a DNA test that will inculpate or exculpate a defendant. The seven causes of wrongful convictions can cause a wrongful conviction in any case.

The Department of Justice surveyed all public and private DNA labs in the country in the early 90s to determine how often each lab exculpated a prime suspect with a DNA test. The average rate varied little from lab to lab, whether public or private. The average rate was 22.5%

To nevertheless murder people without any meaningful process according to ridiculously overbroad definition of a militant is at best reckless homicide and at worst premeditated murder. Given its continuing use despite a high civilian casualty rate makes it premeditated murder.

To accept and allow this contrived exception to due process to stand is to tolerate an exception that swallows the rule. No American should tolerate it and no American should vote for the man who issues the order to kill. He is a murderer, a war criminal and utterly unfit to serve as President of the United States.

Anyone who votes for him will walk out of the voting booth with innocent blood on their hands.

Innocent blood that will never wash out.

I have another reason that motivated me to write this article.

President Obama obviously authorized the story in the New York Times because there is an election coming up in November and he wanted to portray himself as the candidate with the right stuff, ready, able and willing to make courageous and necessary decisions to keep all Americans safe.

But it does not take courage to order others to kill ’em all and let God sort them out, posthumously. And it does not take courage to look at a set of Power Point slides and, like a Roman emperor, issue a thumbs up or thumbs down sign.

Those are the acts of a murderous coward afraid of losing an election.

EDIT: I added links to a series of excellent articles by Kevin Gosztola that I inadvertently omitted from my original post. Thanks to Elliott at Firedoglake for the reminder.


Mitigation Investigation And Jury Sentencing In Death Penalty Cases

March 14, 2012

Ahem, and now back to our regularly scheduled program. That would be the law, in case you are keeping score. This article should be read in conjunction with my earlier article, Does A Seven-Year-Wait-Behind-Bars Violate The Sixth-Amendment Right To A Speedy Trial?

I practiced law in the State of Washington where a judge imposes the sentence in all criminal cases, except death penalty cases. In most cases, the sentencing occurs approximately 6 weeks after the defendant pleads guilty or is found guilty by a jury. During the 6-week period, the Probation Office prepares a presentence report for the sentencing judge and the defense prepares for the sentencing by conducting a mini-mitigation investigation and arranging to have a defense expert evaluate the client, if there is a possible mental illness or impaired functioning issue due to an underlying alcohol, drug, or sexual deviance problem.

Federal court works the same way.

Death penalty cases are different because the jury that heard the evidence and convicted the defendant also sentences the defendant. Jury sentencing, in other words.

In death penalty cases, the courts proceed to sentencing within a day or two after receiving the guilty verdict, rather than recess the trial for six weeks pending the sentencing hearing. Therefore, the mitigation investigation must take place before the trial starts, which is putting the cart before the horse since a mitigation investigation must necessarily proceed from the assumption that the client is guilty.

Picture this: Very few people can afford to retain counsel in a death penalty case. Therefore, almost all death penalty lawyers are private counsel appointed by the court and paid at public expense, or they are public defenders. With few exceptions, clients charged with a death penalty offense figure that a court appointed lawyer or public defender is not a ‘real’ lawyer. Clients typically presume the lawyer is really working for the prosecutor and does not give a damn about them or their case.

Okay, let me now introduce you to Mr. Hyde. He is charged with 5 rape-murders and the prosecution is seeking the death penalty. He claims he is innocent and he is convinced that you are lower than pond-scum, unfit to sleep with the dogs, and you are going to sell him out. Greet him with your brightest smile and explain that you need some information from him to get your mitigation investigator started.

And, for God’s sake, don’t forget to duck.

Now that you understand the importance of delay . . .

Judges are concerned that it would be practically impossible to reassemble the jury following a long break after it returns a guilty verdict in a death case and they are not going to sequester jurors for six weeks with nothing to do in order to prevent them from seeing or reading anything about the case and to assure that they show-up for the sentencing hearing. That would be too expensive and impossible to police. They know that most jurors want to get on with their lives and would resent and be distracted while facing a decision to sentence a defendant to death or life without parole. Some jurors might even run away to avoid making the decision or sicken and die from stress-related causes. Sending the police out to find missing jurors would waste time and divert overstretched resources. In addition, judges know that proceeding with less than 12 jurors would raise issues about whether the defendant’s right to trial by jury was compromised. Meanwhile, retaining alternate jurors for the duration of the trial and a 6-week continuance for a sentencing hearing is impractical.

Prosecutors like to shorten the break ‘to strike while the iron is hot,’ so to speak. That is, while the jurors are still emotionally affected by the horror of the crime and more likely to vote for the death penalty. Theoretically, however, death-penalty verdicts should not be vengeance based, right? How is that for an understatement?

Defense counsel always want to lengthen the break as much as possible hoping that the delay will cool tempers and increase the possibility that the jury will return a verdict of life without parole. The more extreme members of our select fraternity and sorority of life savers, would prefer the sentencing hearing be continued for ten or more years, if not indefinitely. I include myself in that select category, just so you know where I am coming from.

In reality, we are lucky if we get more than 48 hours before we have to face a stern and hostile jury. You do not know what constitutes a tough sell until you try to convince a jury to spare your client’s life.

Death penalty trials take a long time. In the cases that I tried, for example, jury selection averaged 3 weeks (attorney conducted voir dire of prospective jurors individually out of the presence of the other prospective jurors) and the evidentiary portion of the guilt phase lasted from 6 weeks (my shortest) to 9 months (my longest).

In practice, because the client’s life is at stake, the mitigation investigation in a death-penalty case is far more extensive and intensive compared to the ordinary case.

I say ‘ordinary’ because there is no comparison to the intensity of a death penalty trial.

Mitigation investigation begins with collecting all available documents concerning your client, starting with medical reports regarding the mother’s pregnancy and your client’s birth. Then we want all medical, school, military, employment, and institutional records concerning the client.

After assembling all available records, we identify, locate, and interview every living person who had a significant relationship with the client and every person for whom he performed a favor or did something nice that he did not have to do.

We are looking for evidence of what we call “a hole in the head.” That is, evidence of an organic brain disorder or injury that impaired functioning and might have caused or contributed to the commission of the crime or crimes with which the client is charged.

We are also looking for evidence that the client might have been abused sexually, psychologically, or physically as a child. As you might well imagine, clients and families often would rather die than open up and talk about that sort of deeply personal, embarrassing, and humiliating information to strangers. We often find that they so deeply suppress or spin memories of abuse to excuse the abuser that it practically takes a miracle to break through the denial and get at the truth. And we have to dig for that information without planting false memories.

We search until we find something.

Why?

Because we honor and never judge our clients, no matter what they have done in their lives, and we do everything possible within the boundaries of the law to save their lives.

We call it God’s work.

And most of the time the money we are paid for doing this work does not even cover our monthly overhead.


Does A Seven-Year-Wait Behind Bars Violate The Sixth Amendment Right To A Speedy Trial?

March 9, 2012

What were you doing in March, 2005?

On February 27, the Georgia Supreme Court denied Khanhn Dinh Phan’s request to dismiss the death penalty case pending against him. Such an order under ordinary circumstances would not merit comment, but these are not ordinary circumstances. Khanh Dinh Phan has been locked up in the Gwinnett County Jail in Georgia for seven years without a trial.

In addition to rejecting his argument that the State of Georgia has violated his Sixth Amendment right to a speedy trial (See: Barker v. Wingo, 407 U.S. 514 (1972); Strunk v. U.S., 412 U.S. 434 (1973)), the Court removed his court-appointed counsel and appointed new counsel over his objections, even though his lawyers did not cause the delay in bringing him to trial and did nothing wrong. In fact, they did what they were required to do and what I would have done if I had been representing Mr. Phan in order to provide him with effective assistance of counsel, which is what the Sixth Amendment requires (See Gideon v. Wainwright, 372 U.S. 335 (1963); Strickland v. Washington, 466 U.S. 668 (1984)).

The Facts

Mr. Phan is charged with intentionally killing Hung Thai and his two-year-old son by shooting them in the head execution-style, allegedly as punishment for Hung Thai’s failure to pay a gambling debt. Mr. Thai’s wife, Hoangganh Ta, was also shot in the head, but she survived and returned to live in Vietnam after emerging from a coma seven months after the shooting. She has identified Mr. Phan as the shooter and she also provided law enforcement with information regarding the alleged motive.

The trial court appointed two lawyers to represent Mr. Phan, which is standard operating procedure in a death penalty case. The two lawyers were Chris Adams, who was the Director of the Georgia Capital Defender’s Office at that time, and Bruce Harvey, a lawyer in private practice.

The Pretrial and Mitigation Investigation

Adams and Harvey did what any qualified and experienced death-penalty lawyers would have done in this case. After establishing a relationship of confidence and trust with their indigent client, they asked the trial court to authorize the expenditure of reasonable funds to travel with an investigator to Vietnam to interview Hoangganh Ta about the homicides and to interview members of Mr. Phan’s family, friends, and others who knew him in Vietnam such as neighbors, teachers, employers, counselors, and doctors who might have provided him with medical treatment. The former is routine pretrial investigation that should be conducted in any case and the latter, which we call mitigation investigation, is required in all capital cases so that no stone is left unturned in the effort to discover evidence about the defendant, or the circumstances of the crime, that might in fairness or mercy potentially cause a juror to vote for a sentence of less than death (See Porter v. McCollum, 130 S.Ct. 447 (2009)).

The mitigation investigation must be conducted prior to trial, which is necessarily before the defendant has been acquitted or convicted, because, if the defendant is convicted, the case would proceed to a sentencing phase immediately after the jury returned the guilty verdict, or within a few days, not allowing sufficient time to conduct the investigation. Clients rarely understand the necessity to pry deeply into their past history and relationships searching for clues to explain seemingly unexplainable homicidal behavior that they are adamantly denying. They regard the investigation as a form of rape and it is very difficult for the lawyers to establish a relationship of trust and confidence when the client wants to hear the lawyer say, “I believe you when you say you are innocent and I will do everything that I possibly can to win this case.”

This tension explains why a death-penalty case is much easier to handle, if the client admits guilt. Most clients, however, deny guilt inevitably generating conflict in the attorney-client relationship over the necessity for and wide ranging scope of the mitigation evidence. From the results of post-conviction DNA testing and reinvestigation, we now know for certain that a significant percentage of death-penalty defendants are innocent (approximately 20%). The attorney-client conflict generated by the mitigation investigation is an additional, but no less valid reason to abolish the death penalty.

In this case, Mr. Phan’s lawyers appear to have navigated successfully through the minefield.

Gwinnett County Cannot Afford To Pay For What The Law Requires

Mr. Phan’s case went off the rails when Gwinnett County could not afford to pay for the trip to Vietnam. Defense counsel could not agree to forego the necessary trip and they could not reasonably or legally be expected to finance the trip themselves.

Contrary to long established United State Supreme Court precedent, Gwinnett County also refused to pay for a defense expert regarding the effect of gunshot injuries to the brain on memory (Cf Ake v. Oklahoma, 470 U.S. 68 (1985)).

Since defense counsel could not adequately prepare for trial, the trial could not go forward. And so, Mr. Phan languished and continues to languish in jail waiting for his day in court, a day that may never come.

The Georgia Supreme Court’s Decision

Notwithstanding the passage of seven years without a trial, due to the trial court’s failure to pay for reasonably necessary defense costs to prepare for trial that it is required to compensate (Cf, Ake v. Oklahoma, 470 U.S. 68 (1985) and its progeny), the Georgia Supreme Court not only refused to dismiss the case for violation of Mr. Phan’s right to a speedy trial, it aggravated the situation by dismissing his lawyers replacing them with public defenders who will cost less because they are already paid a salary, regardless of how many hours they work, rather than an hourly wage.

Rather than requiring the Gwinnett County Circuit Court to pay the necessary and reasonable expenses for counsel to defend Mr. Phan, an obligation imposed by long-standing United States Supreme Court precedent, the Georgia Supreme Court fashioned a ‘solution’ to save money by destroying an existing attorney-client relationship by appointing new lawyers. Presumably, the Court believes that the financial savings can free-up sufficient funds to pay for the reasonably necessary expenses that must be paid for the trial to go forward.

Whether and when that will happen is anybody’s guess.

Conclusion

The prosecuting attorney in Gwinnett County should not be seeking the death penalty in a case when the circuit court cannot afford to pay for the reasonably necessary expenses to defend the case.

Ultimately, of course, it is the State of Georgia’s responsibility to budget and pay for the reasonable and necessary expenses that the county circuit courts must pay to fund indigent defense. Death penalty cases are expensive and, if Georgia wants to kill people, then Georgia must bear the cost of prosecuting, defending, and killing them.

Savaging and scavenging a successful seven-year attorney-client relationship to free-up money to pay for reasonably necessary defense expenses is a willful and intentional destruction of Mr. Phan’s right to counsel and a gross denial of his right to a speedy trial — all of which has been done to fund a robbing-Peter-to-pay-Paul scheme.

The Georgia Supreme Court’s decision is little more than a variation of the Ponzi Scheme. That it would employ such a tactic to kill someone speaks volumes as to its regard for the United States Constitution, the Sixth Amendment, and the Rule of Law.

If the right to a speedy trial means anything, it means that no one should be forced to rot in jail for seven years without going to trial. After all this time, he is no closer to trial than he was after he was arrested in 2005.

Shameful and disgusting.

For additional information, see John Rudolph’s article at the Huffington Post.


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