Georgia Criminal Law Blog

ATLANTA (AP) — A death row inmate who has drawn international headlines with claims that he is innocent of killing a Savannah police officer is scheduled to be executed later this month, Georgia authorities said Wednesday.Troy Davis, who is on death row for gunning down a Savannah police officer in 1989, is scheduled to die Sept. 23. Davis contends he should be granted a new trial after several witnesses who testified against him have recanted their statements.The execution order was signed by Georgia Attorney General Thurbert Baker six months after the Georgia Supreme Court narrowly denied his request for a new trial. An appeal has been filed to the U.S. Supreme Court, but the court is not scheduled to discuss the case until days after the impending execution.The state’s decision drew a sharp rebuke from Amnesty International, a human rights group that has worked to draw media and public attention to the case.”We’re shocked and appalled that the attorney general short-circuited justice by setting an execution before letting the Supreme Court weigh in,” said Jared Feuer, the group’s southern regional director.Davis was convicted of the 1989 murder of 27-year-old officer Mark MacPhail, who was working off-duty as a security guard at a bus station.MacPhail had rushed to help a homeless man who had been pistol-whipped at a nearby parking lot, and when he approached Davis and two other men, he was shot in the face and the chest.Witnesses identified Davis as the shooter. A jury convicted him in 1991 and sentenced him to death. At the trial, prosecutors said he wore a “smirk on his face” as he fired the gun, according to records.But Davis’ lawyers say new evidence could exonerate their client and prove that he was a victim of mistaken identity.Several witnesses who initially testified against Davis have since recanted or contradicted their testimony. And three others who did not testify have said another man, Sylvester “Red” Coles — who testified against Davis at the trial — confessed to the killing.Coles refused to talk about the case when contacted by The Associated Press during a 2007 Chatham County court appearance on an unrelated traffic charge, and he has no listed phone number.Prosecutors have called the witness statements “suspect,” and contended in court hearings the case is closed.They also say some of the witness affidavits simply repeat what a trial jury has already heard, while others are irrelevant because they come from witnesses who never testified.Davis was one day away from being put to death July 2007 when the state Board of Pardons and Paroles issued a stay of execution.The state’s top court rejected Davis’ appeal in March and a plea to reconsider the ruling in April by identical 4-3 votes. The Supreme Court is scheduled to discuss whether to hear the case at a Sept. 29 conference.The Attorney General’s office said the state does not need to wait for the Supreme Court to act, and that Davis has already completed “the regular appeal track.” Davis supporters, meanwhile, urge the Supreme Court to stay the execution until it can consider the case.”We would hope the U.S. Supreme Court would grant a stay to allow their decision to be issued,” said Feuer. “And I do have to say we are absolutely shocked that the attorney general would not allow legal avenues to be pursued.”

WASHINGTON - The Supreme Court on Wednesday outlawed executions of people convicted of raping a child. In a 5-4 vote, the court said the Louisiana law allowing the death penalty to be imposed in such cases violates the Constitution’s ban on cruel and unusual punishment.

“The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony Kennedy wrote in his majority opinion. His four liberal colleagues joined him, while the four more conservative justices dissented.

There has not been an execution in the United States for a crime that did not also involve the death of the victim in 44 years.

Patrick Kennedy, 43, was sentenced to death for the rape of his 8-year-old stepdaughter in Louisiana. He is one of two people in the United States, both in Louisiana, who have been condemned to death for a rape that was not also accompanied by a killing.

The Supreme Court banned executions for rape in 1977 in a case in which the victim was an adult woman.

Forty-five states ban the death penalty for any kind of rape, and the other five states allow it for child rapists. Montana, Oklahoma, South Carolina and Texas allow executions in such cases if the defendant had previously been convicted of raping a child.

The court struggled over how to apply standards laid out in decisions barring executions for the mentally retarded and people younger than 18 when they committed murder. In those cases, the court cited trends in the states away from capital punishment.

In this case, proponents of the Louisiana law said the trend was toward the death penalty, a point mentioned by Justice Samuel Alito in his dissent.

“The harm that is caused to the victims and to society at large by the worst child rapists is grave,” Alito wrote. “It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty.”

But Kennedy said the absence of any executions for rape and the small number of states that allow it demonstrate “there is a national consensus against capital punishment for the crime of child rape.”

Kennedy also acknowledged that the decision had to come to terms with “the years of long anguish that must be endured by the victim of child rape.”

Still, Kennedy concluded that in cases of crimes against individuals — as opposed to treason, for example — “the death penalty should not be expanded to instances where the victim’s life was not taken.”

The decision does not affect the imposition of the death penalty for other crimes that do not involve murder, including treason and espionage, he said.

“It looks like a smashing victory on all fronts for us,” said Denise LeBoeuf, a longtime capital defense attorney from New Orleans.

The girl’s mother said, “We don’t talk about that” and hung up.

The author of the Louisiana law, former Republican state Rep. Pete Schneider, said even opponents of the death penalty told him they would kill anyone who raped their children. “When are you going to have the courage to stand up for what’s right for all of the people — but especially the children under 12 that have been brutally raped by monsters?” Schneider said, directing his comments to the justices in Wednesday’s majority.

The last executions for crimes other than murder took place in 1964, according to a database maintained by the Death Penalty Information Center.

Ronald Wolfe, 34, died in Missouri’s gas chamber on May 8, 1964 for rape. James Coburn was electrocuted in Alabama on Sept. 4 of that year for robbery.

Patrick Kennedy was convicted in 2003 of raping his stepdaughter at their home in Harvey, La., outside New Orleans. The girl initially told police she was sorting Girl Scout cookies in the garage when two boys assaulted her.

Police arrested Kennedy a couple of weeks after the March 1998 rape, but more than 20 months passed before the girl identified him as her attacker.

His defense attorney at the time argued that blood testing was inconclusive and that the victim was pressured to change her story.

The Louisiana Supreme Court upheld the sentence, saying that “short of first-degree murder, we can think of no other non-homicide crime more deserving” of the death penalty. State Chief Justice Pascal Calogero noted in dissent that the U.S. high court already had made clear that capital punishment could not be imposed without the death of the victim, except possibly for espionage or treason.

A second Louisiana man, Richard Davis was sentenced to death in December for repeatedly raping a 5-year-old girl in Caddo Parish, which includes Shreveport. Local prosecutor Lea Hall told jurors: “Execute this man. Justice has a sword and this sword needs to swing today.”

The high court’s decision leaves intact Kennedy’s conviction, but will lead to a new sentence.

The case is Kennedy v. Louisiana, 07-343.

By David Von Drehle  (click here for link)

In 1990, Curtis Osborne, a small-time cocaine dealer and addict, killed
two people in a dispute over $400. His crime revulsed the town of
Griffin, Georgia, one measure of which was the bigoted remark a local
inmate reported hearing at the jail: “That little nigger deserves the
chair.”

As repulsive as the remark was on its own, far more disturbing was the
fact that the person alleged to have uttered it was Osborne’s own
court-appointed lawyer. And somehow, through years of appeals in state
and federal courts, no tribunal has squarely confronted this basic but
fundamental question: is a person on trial for his life entitled to a
lawyer who does not hold him in contempt and believe he should be executed.

Osborne is scheduled to be executed Wednesday. His last-ditch plea to
have his sentence commuted to life in prison was denied this morning by
the state Board of Pardons and Paroles, despite supportive letters from
Georgia luminaries including former President Jimmy Carter and former
deputy attorney general Larry Thompson — a Democrat and a Republican,
respectively.

His case is a vivid example of the way legal “technicalities” have
tipped the scales from favoring death row prisoners to favoring the
state. Georgia officials, after all, never had to try to prove that
Osborne’s lawyer was not a bigot, or even that his feelings about his
client shouldn’t matter one way or the other. Instead, they were the
beneficiaries of court rulings that said the issue was moot for
procedural reasons.

From the record of his case, Curtis Osborne was a numbskull junkie who
managed to sell his friend’s motorcycle for $400, then pocketed the
money. When the friend came after the cash, Osborne shot the man and his
girlfriend at close range. He later tried to explain the gunshot residue
on his hands by saying that he fed his dog doses of gunpowder, but the
authorities weren’t impressed. Osborne eventually cracked and confessed.

Soon after, the flamboyant Johnny Mostiler, a local lawyer known for his
abundant jewelry, handlebar moustache and overwhelming caseload, became
his attorney. In those days, Mostiler represented all the indigent
inmates in the county for a flat annual fee, hundreds and hundreds of
felony cases. His clients often filed into court shackled to one another
in rows to enter their guilty pleas, according to a profile in American
Prospect magazine. So suffice it to say that he didn’t have a lot of
time for Osborne.

Preparation for a first-rate capital defense can often take hundreds of
hours, including an extensive investigation of the accused’s childhood,
mental health, drug abuse history and so on. But the law does not
promise a first-rate defense. As a panel of judges from the 11th Circuit
Court of Appeals said in denying Osborne’s request for a new trial, “for
a petitioner to show deficient performance” by an attorney, “he must
establish that no competent counsel would have taken the action that his
counsel did take.” And how do you show that? “There are no absolute
rules,” the judges said vaguely.

So throughout Osborne’s legal odyssey state and federal judges combed
through his appeals in an effort to decide just how third-rate
Mostiler’s work actually was. Osborne argued that Mostiler should have
uncovered exculpatory evidence. The courts decided that the evidence
wasn’t exculpatory enough. Osborne’s lawyers said Mostiler should have
called experts to challenge the prosecution case. Courts decided that
experts would not have changed the outcome. Osborne challenged the
failure to conduct a robust examination of the role of mental illness
and addiction in his unraveling. The courts believed Mostiler’s
testimony that he never saw any evidence of drug abuse or illness.
Instead, Mostiler chose to argue to the jury that Osborne’s crimes were
not premeditated, an ultimately unsuccessful strategy that appeals
courts found to be nonetheless reasonable.

All in all, Osborne’s has been a fairly typical capital appeal, in which
the defense team heaps allegations on the original lawyer — the
high-living Mostiler died of a coronary in 2000 — while the prosecution
extols the brilliance of the condemned man’s trial attorney. “Mostiler
was the toughest trial lawyer in Spalding County,” one prosecutor
declared of a man far better known for engineering guilty pleas than for
winning cases in the courtroom.

Which leaves the alleged racist remarks and the attorney’s apparent
belief that his own client deserved to die.

Those words didn’t actually surface until years after they were
allegedly uttered, when another Mostiler client at the time of Osborne’s
trial reported the slur. He said Mostiler indicated that he wasn’t
planning to work very hard to save the killer and that he wasn’t telling
Osborne that the state was offering a plea bargain to life in prison.
The issue of the plea deal had already been raised in an earlier appeal
before the lawyer’s death, and when Mostiler testified that he conveyed
the state’s offer and Osborne turned it down, the appellate judges chose
to believe him over his former client.

It’s too late to ask him about the n-word in Osborne’s case — but this
is not the first time Mostiler has been accused of using the word to
describe a client. In another case, a defendant unsuccessfully tried to
get a new lawyer because Mostiler was calling him hateful names. When
the judge turned to the lawyer, Mostiler didn’t deny it. “I honestly
can’t say whether I said it or not. I don’t use those terms out in
public,” was as far as he would go.

But neither Mostiler nor the State of Georgia was ever pressed on the
matter. State courts ruled that Osborne waited too long to raise the
issue, and federal courts deferred to that decision. The 11th Circuit
panel closed the matter in dry and technical terms: “The state trial
court relied upon Georgia procedural rules in denying Osborne relief on
this claim. As such, the claim is barred from federal review.”

Of course, we are talking about a confessed killer of two people. Some
Americans believe that all such aggravated murders should be punished by
death. That’s not the law, however: in 1976, the Supreme Court ruled
that mandatory death sentences are unconstitutional. Instead, each
capital case must be individually scrutinized on its own merits.

But is this individual scrutiny possible when the prisoner’s attorney
slurs him and says he deserves to die? For Curtis Osborne, the ultimate
insult is that such a crucial question is barred from review.

On the heels of commuting Samuel David Crowe’s sentence to life without parole, the Georgia Board of Pardons and Paroles is being asked to spare another defendant’s life. Curtis Osborne has an execution date of June 4, 2008. Among his claims are the allegation that his court appointed lawyer,  Johnny Mostiler,was a racist that did not convey the plea offer of life in prison to Mr. Osborne. See the AJC article “Racism infected killer’s defense?”

Former President Jimmy Carter, former deputy U.S. Attorney General Larry Thompson and former Georgia Supreme Court Chief Justice Norman Fletcher are sending letters to the board requesting clemency for Osborne.

Fletcher, who voted in 1993 to uphold Osborne’s death sentence, said he recalled Mostiler’s “apparent ineptness” because he raised so few issues on appeal.

“As is now all too well apparent, it is Mr. Osborne who is suffering due to Mr. Mostiler’s grave shortcomings and his racial prejudices of perhaps a lifetime.”

For more information on the recent Crowe commutation click here.