State Killing: Travesties of Justice Just Keep On Coming

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cross-posted from The Dream Antilles

Today’s New York Times tells the story of yet another travesty of justice from Alabama in a death penalty case.  This is the kind of thing that unfortunately is no longer a revelation.  It’s what you might expect.  And it’s happened over and over again.

Please join me in the Death Belt.

The Times reports:

Kenneth B. Trotter had been practicing law for less than a year when an Alabama judge appointed him to assist two more seasoned lawyers in defending a man facing the death penalty.

After the man, Holly Wood, was convicted in 1994 of murdering his former girlfriend, Mr. Trotter led the effort to persuade the jury to spare his life. The young lawyer came up just short: the jury recommended death by a vote of 10-to-2, the minimum allowed under Alabama law.

Mr. Trotter failed to pursue or present evidence that his client was mentally retarded, though he had a competency report in hand that said as much. In September, a divided three-judge panel of the federal appeals court in Atlanta ruled that he had made a strategic decision, not a grave error.

Judge Rosemary Barkett, the dissenting judge, saw it differently.

“An inexperienced and overwhelmed attorney,” Judge Barkett wrote of Mr. Trotter, “realized too late what any reasonably prepared attorney would have known: that evidence of Wood’s mental impairments could have served as mitigating evidence and deserved investigation so that it could properly be presented before sentencing.”

What is this saying?  Maybe Mr. Wood wouldn’t have been sentenced to death if the lawyer at his penalty phase had a couple years more seasoning.  Or had introduced in evidence the document he apparently had in his hand showing that Wood was retarded.  Or maybe Wood wouldn’t have faced lethal injection if the Alabama courts literally followed Supreme Court decisions like Ring (forbidding the execution of people with an IQ less than 70) and didn’t invent more “death friendly” interpretations of them.  Or maybe Wood wouldn’t have been sentenced to death if Alabama required a unanimous rather than a 10-2 verdict for death.  And maybe Mr. Wood’s death penalty wouldn’t have been upheld if 2/3’s of the Eleventh Circuit panel understood that leaving out mitigation evidence isn’t ever a strategy for saving the accused, it’s a lapse that can almost certainly kill him.  Put another way, look how very close Wood came to a sentence of life without parole and not a state killing.

Is it tolerable to rational humans that all of these small, somewhat technical points are the differences between living and dying, between whom the state kills and whom it spares?  I think not.  These points only underscore the capriciousness of state killing.

Look at the admission of ineffectiveness Trotter made back in 1994 when he wrote to a colleague:

Mr. Trotter said he was anxious and lost. “I have been stressed out over this case and don’t have anyone with whom to discuss the case, including the two other attorneys,” Mr. Trotter wrote.

Clearly, the appointed defense lawyer was in over his head in the task of saving Wood from execution.  He had one year of practice.  He had no experience.  He had two lawyers with him whom he couldn’t talk.  He had Wood’s life in his hands.  And he was being paid up to a maximum of $1,000 for the sentencing.  It’s a recipe for disaster.  It’s a recipe for the state’s killing people who shouldn’t be killed.  But it’s not unusual.  And it’s not just an Alabama problem.  Not by a long shot.

Fortunately, the story doesn’t end in the Eleventh Circuit.  The Times informs us that the Supreme Court has now granted certiorari:

Last month, the United States Supreme Court agreed to hear Mr. Wood’s case. It will give the court a glimpse of Alabama’s capital justice system, which is among the most troubled in the nation. The state lacks a public defender’s office, elects judges for whom death sentences are a campaign promise, pays appointed lawyers a pittance and sometimes leaves death row inmates to navigate the intricacies of post-conviction challenges with no lawyers at all.

The root problem is money, said Bryan Stevenson, the executive director of the Equal Justice Initiative of Alabama, a nonprofit law firm that represents poor people and prisoners. The lawyers appointed to represent Mr. Wood in 1994 were entitled to a maximum of $1,000 to prepare for the penalty phase of the trial.

“It ought not be a shock to anyone that you get this kind of defense with that kind of funding,” Mr. Stevenson said. “The poor quality of indigent defense is still the ugliest scar on capital punishment in America.”

Bryan Stevenson is a brave and talented and resourceful lawyer.  He’s right that a root of the problem is money, but it’s not “the” root.  There’s another, deeper root, one that is far more entrenched, and that is the insatiable desire of Alabama and the other states in the death belt for retribution in certain cases.  An eye for an eye might leave the whole world blind, but that’s not the culture in Alabama, and it’s not something that deters revenge.  Especially when the accused is not white, especially when the victim is white, especially when the accused is poor, or developmentally disabled.  Providing inadequate, ineffective counsel is just a part of the revenge.

There’s no question why revenge against Wood for his crime led to seeking the death penalty. Wood committed a horrendous brutal crime:

In September 1993, three weeks before Mr. Trotter was admitted to the bar, Mr. Wood broke into the home of a former girlfriend, Ruby Gosha, and killed her while she was sleeping with a shotgun blast to her head. Soon afterward, according to testimony from a cousin, Mr. Wood admitted to shooting Ms. Gosha, saying he had “blowed her brains out and all she did was wiggle.” Mr. Wood was the father of one of Ms. Gosha’s children.

You can easily understand why revenge called out for an execution.  Given the culture, it made sense to prosecutors to seek the death penalty.  So they did.  And given the culture it made sense to appoint lawyers who were clearly not up to the task of saving Wood’s life.  That’s not something that the state intends to “fix” by appointing better lawyers, by creating a statewide, capital public defender program. The inadequacy of the defense is just another part of the state killing machinery.

Sadly, we’re going keep seeing these state killing stories from the death belt as long as there is a death penalty.  Yes, it’s barbarianism.  Yes, it’s disgraceful.  And it won’t be ended until voters across America are ready to say it’s enough, we cannot have any more state killing, we cannot afford the extremely high expense of state killing, life without parole is more than enough punishment, and it adequately protects us.