HECK FREAKING YES
Flashback to my clemency petition ON THIS CASE (which went to the lawyer working on this case, who is taking my class' research and using it in HIS clemency petition):
http://swirlingmelody.livejournal.com/72749.html#cutid1
From the New York Times:
Death Penalty Case Reveals Failings
By ADAM LIPTAK
Published: June 8, 2009
WASHINGTON
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.”
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.”
Mr. Trotter, who now practices insurance law in Washington, would not discuss the case.
But in a 1994 letter 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.
There was little doubt that Mr. Wood would be convicted, said Cary L. Dozier, the lead lawyer on his defense team.
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.
Mr. Dozier said an acquittal was out of the question once Mr. Wood’s cousin testified. “His cousin basically slammed the door on him,” Mr. Dozier said.
Mr. Dozier added that money had played no role in how the case was handled. “If I was appointed to represent someone,” he said, “I done as well for somebody as if he was a paying client. We did the best we could.”
After the jury found Mr. Wood guilty, it turned to the question of the proper punishment. Mr. Dozier said his young colleague had performed capably in presenting the case for leniency. “I thought Ken had done a good job,” he said.
The defense team had a report that described Mr. Wood as competent to stand trial. The report also noted that Mr. Wood’s I.Q. was “in the borderline range of intellectual functioning” and that he read at a third-grade level.
Mr. Trotter did not pursue that point at the sentencing hearing, though evidence of mental retardation was a factor the jury could have considered as favoring leniency.
“Wood’s counsel were well aware that his intelligence is impaired,” Alabama’s attorney general, Troy King, told the United States Supreme Court in April, “and they made a reasonable strategic decision not to present that evidence.”
After the Supreme Court’s 2002 decision in Atkins v. Virginia, which barred the execution of the mentally retarded, a state court judge ruled that Mr. Wood was not retarded. True, the court said, his I.Q. was around 64, less than the score of 70 that Alabama law views as the “significantly subaverage intellectual functioning.”
But Alabama, like other states, does not rely solely on I.Q. in determinations about retardation in capital cases. It also looks at whether the defendant possessed fundamental practical skills.
The state judge noted that Mr. Wood had held jobs that used heavy machinery, managed his own money, planned and cooked meals, and subscribed to Hot Rod magazine.
Those findings were drafted by the prosecutors and adopted verbatim by the judge. That curious practice is widespread in Alabama trial courts.
“The problem in Alabama is that there are effectively no state court judicial decisions,” Mr. Stevenson said. “Decisions are made by prosecutors who write orders sometimes over 100 pages that are simply adopted by trial court judges.”
The practice is “subject to criticism,” a state appeals court in Mr. Wood’s case said mildly. But it upheld the determination that Mr. Wood was not retarded for the purposes of Atkins. “Even when the court adopts proposed findings and conclusions verbatim,” the appeals court said, “the findings are those of the court and may be reversed only if clearly erroneous.”
Still, the question of whether Mr. Wood was categorically barred from being executed is different from whether evidence of his mental limitations should have been presented to the jury considering his sentence.
At a hearing on a state-court challenge to Mr. Wood’s death sentence, Mr. Trotter testified that the jury’s 10-to-2 vote had been heartbreakingly close. “I felt like if I could have done just a little more,” he said, “that maybe it could have been 9-to-3, and that that would have been enough.”
http://swirlingmelody.livejournal.com/72749.html#cutid1
From the New York Times:
Death Penalty Case Reveals Failings
By ADAM LIPTAK
Published: June 8, 2009
WASHINGTON
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.”
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.”
Mr. Trotter, who now practices insurance law in Washington, would not discuss the case.
But in a 1994 letter 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.
There was little doubt that Mr. Wood would be convicted, said Cary L. Dozier, the lead lawyer on his defense team.
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.
Mr. Dozier said an acquittal was out of the question once Mr. Wood’s cousin testified. “His cousin basically slammed the door on him,” Mr. Dozier said.
Mr. Dozier added that money had played no role in how the case was handled. “If I was appointed to represent someone,” he said, “I done as well for somebody as if he was a paying client. We did the best we could.”
After the jury found Mr. Wood guilty, it turned to the question of the proper punishment. Mr. Dozier said his young colleague had performed capably in presenting the case for leniency. “I thought Ken had done a good job,” he said.
The defense team had a report that described Mr. Wood as competent to stand trial. The report also noted that Mr. Wood’s I.Q. was “in the borderline range of intellectual functioning” and that he read at a third-grade level.
Mr. Trotter did not pursue that point at the sentencing hearing, though evidence of mental retardation was a factor the jury could have considered as favoring leniency.
“Wood’s counsel were well aware that his intelligence is impaired,” Alabama’s attorney general, Troy King, told the United States Supreme Court in April, “and they made a reasonable strategic decision not to present that evidence.”
After the Supreme Court’s 2002 decision in Atkins v. Virginia, which barred the execution of the mentally retarded, a state court judge ruled that Mr. Wood was not retarded. True, the court said, his I.Q. was around 64, less than the score of 70 that Alabama law views as the “significantly subaverage intellectual functioning.”
But Alabama, like other states, does not rely solely on I.Q. in determinations about retardation in capital cases. It also looks at whether the defendant possessed fundamental practical skills.
The state judge noted that Mr. Wood had held jobs that used heavy machinery, managed his own money, planned and cooked meals, and subscribed to Hot Rod magazine.
Those findings were drafted by the prosecutors and adopted verbatim by the judge. That curious practice is widespread in Alabama trial courts.
“The problem in Alabama is that there are effectively no state court judicial decisions,” Mr. Stevenson said. “Decisions are made by prosecutors who write orders sometimes over 100 pages that are simply adopted by trial court judges.”
The practice is “subject to criticism,” a state appeals court in Mr. Wood’s case said mildly. But it upheld the determination that Mr. Wood was not retarded for the purposes of Atkins. “Even when the court adopts proposed findings and conclusions verbatim,” the appeals court said, “the findings are those of the court and may be reversed only if clearly erroneous.”
Still, the question of whether Mr. Wood was categorically barred from being executed is different from whether evidence of his mental limitations should have been presented to the jury considering his sentence.
At a hearing on a state-court challenge to Mr. Wood’s death sentence, Mr. Trotter testified that the jury’s 10-to-2 vote had been heartbreakingly close. “I felt like if I could have done just a little more,” he said, “that maybe it could have been 9-to-3, and that that would have been enough.”