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October 14, 2010

Potent dissent from the Sixth Circuit's denial of en banc review in Kentucky capital habeas case

Sixth Circuit judge Boyce Martin has a provocative dissent to this Sixth Circuit order denying rehearing en banc in the habeas action of a Kentucky death row inmate.  Judge Martin's dissent gets started and ends this way:

The rape and murder of Debbie Pooley was a heartbreaking and reprehensible act. But at Gregory Wilson’s murder trial, the state’s ignominy began. Of all the people involved in this case, only two have behaved in a manner worthy of the ideals of our justice system: the courageous Franklin Circuit Court judge who stayed Wilson’s execution; and Andrew Wolfson, the diligent Courier-Journal reporter who exposed the glaring deficiencies in Wilson’s trial.  I quote extensively from Mr. Wolfson’s article because he appears to have worked more conscientiously than many of the participants in this case, and he highlights how virtually every branch of our justice system failed — from the judiciary, which allowed a sex scandal between a colleague of the trial judge and Wilson’s co-defendant to jeopardize the fairness of Wilson’s trial; to the defense counsel, who were woefully unqualified and left Wilson abandoned at trial....

Nearly half a century after Gideon, its promise remains unfulfilled.  Capital defendants like Wilson are routinely appointed counsel without the experience, skill, or commitment to adequately represent them.  Much of the arbitrary and discriminatory nature of our current death penalty stems from the fact that quality of representation is the single greatest factor in determining when it is applied.  The proficiency of a capital defendant’s attorney should not mean the difference between life and death.  I hope that if any good comes from this egregious case, it might serve as a clarion call for a recommitment to achieving Gideon’s guarantee of competent counsel for all defendants.

Over my more than thirty years on the bench, Wilson’s trial stands out as one of the worst examples that I have seen of the unfairness and abysmal lawyering that pervade capital trials.  Although I will continue to apply the law of the Supreme Court as required by my oath, I must reiterate my belief that “the idea that the death penalty is fairly and rationally imposed in this country is a farce.”  Moore v. Parker, 425 F.3d 250, 270 (6th Cir. 2005) (Martin, J., dissenting).  To maintain the legitimacy of our adversarial system of justice, we must be confident that its two foundational components are sound: a neutral and fair arbiter, and adequate legal representation for both parties.  If either pillar is fractured, as in this case, then we are left with a system that does not function. Its results cannot be trusted, particularly when a life is at stake.  When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system.  Until we reform this broken system, we cannot rely on it to determine life and death.

October 14, 2010 at 09:52 AM | Permalink

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Probably telling that none of Judge Martin's liberal colleagues on the Sixth Circuit thought it worth joining.

Posted by: Jay | Oct 14, 2010 10:24:22 AM

Jay --

I agree. I also noticed that Martin's sources are almost exclusively newspaper articles and his prior dissents in other cases. If I had used sources like that in my briefs, my career in the USAO would have been real short.

Assuming arguendo, however, that defense counsel was as deficient as Martin makes out, I'm wondering what the numerous liberal commenters here would suggest for a remedy. If a trial needs to be re-done because of defense counsel incompetence, why should the taxpayers get stuck with the bill? Would it not be more respectable for the defective lawyers to be forced to pay? Or, if they can't, for the bar to step up to the plate and pay it for them?

This blog is chock full of complaints about the costs of the criminal justice system, but I have yet to see a single defense lawyer say that, when defense incompetence wastes taxpayers' money, the defense should bear any responsibility or cost whatever.

Posted by: Bill Otis | Oct 14, 2010 11:05:01 AM

I agree with the Judge in the dissent.

Posted by: Julie Campbell | Oct 14, 2010 11:12:44 AM

Why is it a "provocative" dissent? Why isn't it in fact a perfectly reasonable and reasoned dissent? No-one, apart from Mr Otis, is apparently denying the basis of the judge's argument .... only the conclusion that the facts of that argument bring the legal system into disrepute, and that the outcome is unjust. Presumably the remainder of the Sixth Circuit panel, who in Jay's and Mr Otis's eyes must be honorable Conservatives, maintain that in spite of the faulty and unjust process, The Constitution can offer no protection. It seems the words of The Constitution "we the people" are now to be expressed as "we the Conservative movement". If that is not enough to bring the legal system into disrepute, I don't know what can.

Posted by: peter | Oct 14, 2010 12:00:10 PM

hey folks ! get a look here !

Kentucky death-row inmate's trial littered with problems
Courier Journal 8th September 2010
http://www.courier-journal.com/article/20100907/NEWS01/309060009/1008/news01/Kentucky+death-row+inmate+s+trial+littered+with+problems


Stephen B. Bright
Turning Celebrated Principles Into Reality
The Champion January/February 2003, Page 06
http://www.nacdl.org/public.nsf/championarticles/A0301p6?OpenDocument

Posted by: claudio giusti, italia | Oct 14, 2010 12:02:17 PM

The taxpayers get "stuck with the bill," as Bill puts it, because it's in their name that the state wants to execute the defendant. The rest of the defense bar didn't render ineffective assistance; one lawyer did. If you want to go after him privately for the costs of the retrial, pass a law saying you can do that.

We don't go after all the attorneys in a DA's office for the cost of retrial if a case is reversed for prosecutorial misconduct or Brady error, nor should we. It shouldn't be any different for the defense bar.

Posted by: SRS | Oct 14, 2010 12:47:44 PM

A "perfectly reasonable and reasoned" opinion can still be "provocative," which I don't see as a bad thing as such. It is clearly impassioned, again not really a bad thing, which alone is provocative -- it stands out, attracts attention, etc.

Posted by: Joe | Oct 14, 2010 12:59:32 PM

SRS --

When a case gets reversed for prosecutorial misconduct, the prosecutor's employer -- that being the taxpayers collectively -- get stuck with the bill. Fair enough. Their agent created the problem by his behavior.

When a case gets reversed for ineffective assistance, the taxpayers had zip to do with the reason it has to be done over. It is therefore unfair that they should get stuck with the cost.

So who should pay? The individual lawyer is seldom or ever going to be able to (this is likewise true of the individual prosecutor, of course).

It is a privilege to be a member of the legal profession (with apologies to SC there), and lawyers are far more highly compensated than most other people. The profession has some obligation to see to the competence of its own. Indeed, most state bars, maybe all of them by now, require CLE every year. Some also require lawyers in their yearly license renewal to contribute to a disciplinary fund, which pays out to clients who were cheated by their (now bankrupt) lawyers. So the general principle I'm talking about is already well established.

I am almost always against the notion of collective guilt and responsibility. But there are exceptions, and this is one. To repeat: The taxpayers shouldn't have to pay for a re-trial they did nothing to cause, and the lawyer will typically be unable to pay.

The profession as a whole is privileged, and is also partly responsible. It's not a great candidate to have to pick up the costs, I readily concede, but there IS no great candidate. It's the best available.

Finally, it wouldn't hurt the profession, now held in low esteem, to show a degree of public spiritedness. For once, maybe lawyers could actually shell out for the high-minded purposes they loudly proclaim they serve, rather than put the taxpayers on the hook every single time.

Posted by: Bill Otis | Oct 14, 2010 1:57:13 PM

Echos of Caryl Chessman resonating through the historical canyon.

Posted by: George | Oct 14, 2010 2:05:16 PM

The flaw in your reasoning, Bill, is that we, as a society, have made the decision that we will provide lawyers to those charged with crimes and unable to afford them. Just as the public pays the prosecutors, it pays the defense attorneys. Just as the public is on the hook for retrial for prosecutorial misconduct, it's on the hook for retrial for defense attorney ineffectiveness.

If a defendant is able to pay for his own defense, gets a reversal and is retried, we don't ask the public or the defense bar to pay for his attorney for retrial.

If your issue is with public funding of defense attorneys, that's fine. But it's no more fair to ask individual defense attorneys who have no connection to the case to pay for retrial than it is to ask individual prosecutors to pay for retrial.

So, I'm wondering: are you for or against providing indigent defendants with counsel?

Also, in your proposed scheme, who actually pays? Does the State Bar pay, and then collect in bar dues? Only attorneys who practice criminal defense? What about attorneys who do 90% civil and 10% criminal?

Posted by: SRS | Oct 14, 2010 2:18:16 PM

I've read the underlying opinion. The conviction became final in 1993. There appears to have been no timely federal habeas case filed. This is a 1983 action, particularly dealing with the death penalty protocol.

So it makes sense that none of the other judges joined Judge Martin's opinion. Strictly legally, 1983 is not much hope here. But the bigger issue here also is about the system. It is appropriate for Judge Martin to use a dissent from a denial of en banc review as a forum for discussing our judicial system. The system appears to have completely failed. Unless people like Judge Martin speak out, the system is unlikely to significantly improve.

This is not an execution to be proud of.

FWIW, I'm a former clerk of Judge Martin's.

Posted by: Mark Pickrell | Oct 14, 2010 2:20:17 PM

Mark Pickrell,
Wilson v. Parker (6th Cir. 05-5191) affirmed the district court on his federal appeal. Isn't it interesting that Judge Martin is the only judge on the 6th circuit or the Kentucky courts to complain about Wilson's attorneys or anything for that matter.
That is not surprising, he is a Carter appointee like Reinhardt over at the 9th. Martin just doesn't like the death penalty. I wonder if he has ever voted to uphold one. I doubt it. He couldn't even get the other ultra left winger Merritt to join.

Posted by: DaveP | Oct 14, 2010 4:54:11 PM

I apologize. Merritt wasn't on the en banc panel.

Posted by: DaveP | Oct 14, 2010 4:58:32 PM

Mark Pickrell --

Why is the dissent "appropriate" for Martin but none of the other liberals?

Either the dissent has no legal leg to stand on (which you sort of imply is the case), in which event Martin is just blowing off steam; or, if Martin is not just blowing steam, and it is "appropriate...to use a dissent from a denial of en banc review as a forum for discussing our judicial system," why is it not equally appropriate for other judges who might share Martin's dim view of things?

"This is not an execution to be proud of."

Can you name ANY execution of which you approve?

Posted by: Bill Otis | Oct 14, 2010 5:17:31 PM

SRS --

So the defendant commits a crime against the public, and public gets the bill for prosecuting him, and the bill for defending him, and the bill for defending him a second time because the first lawyer is a drunk or a dope (or is on dope) -- and, under you logic, for defending him a third time, or a fourth or fifth, and the erring defense lawyer gets off owing not a nickle for the expenses he's caused?

Well, OK, at least you make no bones about the fact that the public should get stuck with the bill, no matter how much it is, IN ADDITION TO whatever the defendant did to it. The legal profession takes no responsibility. And the only way to reduce costs is to let criminals out early. If there's recidivism -- and there is -- the public just has to live with that too.

In other words, as lawyers grow fat, the public be damned.

Glad we got that straight.

Posted by: Bill Otis | Oct 14, 2010 5:34:29 PM

Bill -

You have a real talent with those strawmen, don't you? I guess it's easier to argue when you get to create your opponent's positions out of whole cloth.

Posted by: SRS | Oct 14, 2010 6:09:17 PM

SRS --

Just tell me which paragraph you disagree with, and what your alternative phrasing would be.

Let's make it real easy, by taking it one paragraph at a time. My first paragraph reads: "So the defendant commits a crime against the public, and public gets the bill for prosecuting him, and the bill for defending him, and the bill for defending him a second time because the first lawyer is a drunk or a dope (or is on dope) -- and, under you logic, for defending him a third time, or a fourth or fifth, and the erring defense lawyer gets off owing not a nickle for the expenses he's caused?"

Where is that incorrect as a statement of your position?

Posted by: Bill Otis | Oct 14, 2010 7:18:20 PM

Bill -

OK, and then this is it.

How many times have you seen a case retried 5 times? Not many. Yes, if a defendant has to be retried, and is indigent, the public has to pay. That may be unfortunate, in your view, but take it up with the Supreme Court. (BTW, I note that you never responded to my question about whether you agree that the indigent should have counsel provided at public expense.)

So yes, if it's the 1 out of 10,000,000 cases that has to be retried 5 times, and the defendant is indigent, the public has to pay for both the prosecution and defense 5 times. If, as is most likely, the case is being tried for the 5th time due to a series of hung juries, perhaps the prosecution should rethink the wisdom of mounting another trial.

Here's where you go off the rails:

"And the only way to reduce costs is to let criminals out early. If there's recidivism -- and there is -- the public just has to live with that too."

Where did that come from? That's called a "strawman" - you've just created an argument I didn't make and ascribed it to me. I never said a word about letting criminals out early or recidivism.

I understand where you're coming from. I can do it without making up arguments for you. Enough.

Posted by: SRS | Oct 14, 2010 7:42:36 PM

SRS --

OK, after accusing me of constructing a stawman, you now acknowledge that my first -- and main -- paragraph in fact correctly sets forth your position, and thus is not a strawman.

It turns out that you lodge a specific disagreement with only two sentences later on that were tangential to the main point: "And the only way to reduce costs is to let criminals out early. If there's recidivism -- and there is -- the public just has to live with that too."

It is true that you did not say that the ONLY way to reduce costs is to let criminals out early. So I retract that, and I appreciate your correcting me on it. But that's as far as it goes, and I'm guessing that you do, in fact, support early release in some or perhaps many cases as A way of reducing costs. Is that correct?

Since you answered my question by conceding that my post was for the most part correct about your stance, I will answer yours.

As I have stated repeatedly on this site, and will state again, that I support INCREASING the money available to public defenders. Justice isn't cheap. The death penalty costs money and so does a decent capital defense. Whether the DP is TOO expensive is, however, a judgment for the political branches -- which represent all the taxpayers -- and not for the jury. It is also laughably hypocritical for lawyers who do their darndest to drive up costs to turn around and complain that costs are too high.

Posted by: Bill Otis | Oct 14, 2010 8:35:29 PM

"It is also laughably hypocritical for lawyers who do their darndest to drive up costs to turn around and complain that costs are too high."

The prosecution has the burden of proof and can spend what they want when they want with no judicial oversight. The prosecutor in a robe (that's an elected judge Bill) controls the purse strings for indigent defendant. Is it any wonder that under those condictions appointed counsel do their darndest. I can only guess that you don't like to oppse zealous counsel.

Bill, how do you think defense counsel liked opposing your zealous -- lets continue to federalize crime and kick out the edges of the envelope of existing federal crime -- advocacy?

People like Bill don't exist without lawyers willing to oppose them. The system would collapse, then where would we be? Oh yeah, Bill would be in charge.

Posted by: k | Oct 14, 2010 8:48:44 PM

k --

"The prosecution has the burden of proof and can spend what they want when they want with no judicial oversight."

I guess you didn't know that prosecutors' offices have budgets. As to no judicial oversight, that's called "separation of powers." Did the Framers make a mistake there?

"The prosecutor in a robe (that's an elected judge Bill) controls the purse strings for indigent defendant."

I worked exclusively in the federal system where there is no such thing as an elected judge. I'm sure Nancy Gertner is real stingy with you guys, though.

"Is it any wonder that under those condictions appointed counsel do their darndest."

The problem is not that they do their darndest (to drive up costs, the highly relevant words you omit), but that they do their darndest to drive up costs and then argue that the costs they created should get their client off the punishment he's earned.

"I can only guess that you don't like to oppse zealous counsel."

That's what happens when you guess instead of ask.

"Bill, how do you think defense counsel liked opposing your zealous -- lets continue to federalize crime and kick out the edges of the envelope of existing federal crime -- advocacy?"

If there's some reason I should adjust my advocacy to suit the likes and dislikes of my adversaries, let's hear it. On the other hand, since I use my real name here, I invite you to find a single case in the 18 years I was in the USAO where any court accused me, directly or indirectly, of "federaliz[ing] crime and kick[ing] out the edges of the envelope of existing federal crime." Happy hunting.

"People like Bill don't exist without lawyers willing to oppose them."

I'm glad you're sticking to the topic and not personalizing this or anything, but if a point be made of it, I existed for a number of years before I knew what lawyers WERE.

"The system would collapse, then where would we be? Oh yeah, Bill would be in charge."

Better to have Alcee Hastings in charge, right? Maybe Lynne Stewart?

Posted by: Bill Otis | Oct 14, 2010 10:18:34 PM

Bill Otis

speaking of Alcee Hastings. It is incredible that a impeached federal judge who lied on the stand and to a subcommittee is allowed to be a US representative.

Posted by: DaveP | Oct 14, 2010 11:34:21 PM

Why Dave? A person can kill someone and down the road be elected. But perjury should be a disqualification?

Posted by: Joe | Oct 15, 2010 12:08:27 AM

"... we, as a society, have made the decision that we will provide lawyers to those charged with crimes and unable to afford them."

Just not true. We, as the hierarchy of the criminal cult enterprise that is the lawyer profession have decided to pillage the tax payer to generate jobs for lawyers. These lawyers are nearly worthless, and hardly do anything any lay person can't do. They plea bargain over 90% of cases, and allow violent predators to get off on technicalities, to destroy the lives of hundreds of crime victims each year.

Posted by: Supremacy Claus | Oct 15, 2010 6:56:18 AM

DaveP --

You might have seen that I'm a big fan of letting the people decide who they want in Congress, so if the voters in Alcee's district want him, that's up to them. That said, you are absolutely correct that it's appalling that someone with Hastings' record could hold public office. The liberal press is having apoplexy about Ms. O'Donnell, who holds no power and isn't going to, while giving a free pass to Alcee and taking it relatively easy on, for example, Charlie Rangel (who forgot a few hundred thousand when filing his financial disclosure) and Barney Frank (who had an, ummmm, escort service running out of his basement).

The reason for the difference in treatment ain't that hard to detect: O'Donnell is a Tea Party person, and the others are down-the-line leftists who shovel out taxpayer money to their Democratic constituencies.

Posted by: Bill Otis | Oct 15, 2010 8:31:52 AM

Bill,

Why would you think that I'm opposed to the death penalty?

There are many executions of which I approve. Although I think the death penalty is not a cost-effective tool, I support the constitutionality of it. Moreover, I think it is constitutional for non-murder cases. I think that it is constitutional to impose on certain minors. So on this issue, I'm more conservative than the current SCOTUS. I've never said anything, on this site or anywhere else, to contradict these views.

I also support a jury's ability, if the legislature deems the death penalty for certain crimes to be appropriate, to impose the death penalty. I believe in the Rule of Law, and that has to include supporting legislatures' and juries' ability to perform their lawful functions. I've never said anything that conflicts with these views.

There is no contradiction, however, between my view that the death penalty is constitutional and my view that our judicial system often stinks. This case is a good example. These defense attorneys failed to perform the minimum that should be expected of defense counsel -- in a death case or any other criminal case. The prosecution (who, I know I don't need to remind you, has the obligation to perform justice over simply winning) and the trial judge are not blameless here, either. As a lawyer, you should be concerned about the legitimacy of this execution as a matter of professional pride. Your many posts (many of which, by the way, I've supported when appropriate), however, show a bias toward the prosecution side which appears to have clouded your objectivity about the system and about our profession. Your false assumption that I"m anti-death-penalty is a good example of your prejudging attitude.

I've said there are many executions that I support. Can you name any that you don't? Is this one of them?

Mark

Posted by: Mark | Oct 15, 2010 9:43:03 AM

DaveP,

Thanks for pointing out the Sixth Circuit's decision on Wilson's federal habeas appeal. I encourage everyone to read it. It shows that Wilson filed a motion, pro se, asking the trial court to appoint competent counsel, because Wilson believed his appointed lawyers were incompetent. At the hearing on the motion, one of the lawyers admitted that he was not competent to represent Wilson. Wilson stated that he thought the other lawyer was also incompetent. The trial court gets Wilson to say that he's going to proceed pro se, but, importantly, Wilson states that he'd do so only because he did not have competent counsel. He never waived his right to counsel, only to incompetent counsel. And he's a layman, fighting for himself, at the hearing. He was forced by his exchange with the trial judge to try his own closing and rely on one of the attorneys' cross-examinations and penalty-phase arguments.

The Sixth Circuit opinion shows the exchange. Judge for yourselves whether Wilson ever waived his right to have competent counsel represent him.

All this was taking place while court officers were escorting Wilson's co-defendant to the trial judge's colleagues' chambers for sex.

Again, this case is not one to be proud of -- by anyone involved or anyone willing to look fairly at what happened.

What was Wilson supposed to do? He did everything he could to try to get competent trial counsel, but failed. And now he's going to be executed. The trial judge -- who posted a plea to get ANYONE to take Wilson's case -- failed miserably, then twisted this LAYMAN'S words to get him to proceed pro se.

Sometimes the system stinks, and this is a good example.

Maybe Wilson deserves to die. Based on what happened here, we'll never know.

Mark

Posted by: Mark | Oct 15, 2010 10:13:50 AM

Mark --

I did not just assume you were blanketly opposed to the death penalty. I asked. I appreciate your direct answer. It would appear that we agree on this issue more than we disagree.

I do not have sufficient information to know if I support this execution. I generally support executions if the defendant is factually guilty and the crime is particularly heartless, sadistic, grotesque, thought-through or a variety of other things (my list of aggravators is pretty conventional). I don't know if this case qualifies.

In the part of my post to which you did not respond, I noted (along with Jay) that it was odd that no other judge joined Judge Martin's dissent, or, indeed, wrote anything at all. What this makes me suspect -- not know, but suspect -- is that there is something going on here we are not seeing. I also suspect, for related reasons, that Judge Martin's description of what went on in this case may be incomplete and perhaps skewed.

I do not think the justice system "often stinks," as you wrote to me. I agree that it "sometimes stinks," as you wrote in your next comment to DaveP. From the description we have here, this defendant got worse than shabby treatment. As you correctly point out, on the facts as stated, this is hardly something of which the legal profession can be proud. But that is not to say this man is innocent or deserves a punishment other than execution; as I say, those are questions requiring more refined and extensive information than I have. As a general matter, I think lawyers tend to overestimate the importance of process and underestimate the importance of substance. For by far the most part, defendants do not wind up on the wrong end of a conviction because their lawyer wasn't up to it. They wind up there because they're factually guilty and the government had the evidence to prove it.

Let me make two related points on the "does-it-stink?" score. One is that the legal system's principal failure is not in its occasionally depriving the accused of fair process. The principal failure is that it does not sufficiently protect the public that pays its bills. The amount of crime in this country, from murder (more than 16,000 a year) to dishonest bankers and corporations, is simply astonishing. The problem we are having is not "incarceration nation." The problem is that we have become a culture of deceit. And, tragically, deceit is only the tip of the criminal iceberg.

My other point is that cases like this would not exist if lawyers of your education and professional standing more frequently would take the Wilson's of the world pro bono. By saying this, I do not by any means intend to put you on the spot -- indeed, for all I know, you're up to your ears in pro bono work. What I mean is that our profession is chock full of first-rate minds. I just don't believe for a minute that there was no alternative to giving Wilson the dogs he got. In my nearly two decades as an AUSA in EDVA, not one single time did I see "lawyers" like this represent a defendant AT ALL, much less in a capital case.

As I say, something is going on here that we are not seeing.

Bill

Posted by: Bill Otis | Oct 15, 2010 2:21:01 PM

"Maybe Wilson deserves to die. Based on what happened here, we'll never know."

There's no serious argument that Wilson deserves to die. The crime was horrid, and he should pay with his life. He's gotten a ton of appellate review.

It is long past time to put this murderer down. The victim's family deserves no less.

Maybe when Judge Martin learns some law, I'll take him seriously. Until then, let him cite a bunch of newspaper articles.

Posted by: federalist | Oct 15, 2010 9:21:38 PM

federalist,

If you are an attorney, you should reread your ethics rules.

Mark

Posted by: Mark Pickrell | Oct 19, 2010 9:41:06 AM

Bill, if you indeed base your view of indigent criminal defense in this country on your own experience with federal practice in the EDVa, that goes a long way to explaining your cavalier/dismissive attitude toward the repeated complaints in these comments about the atrocious level of process and the lack of skill and commitment by defense counsel in so many state courts.

I mean, that is akin to basing your assumptions about the general level of play in men's recreational softball leagues on your personal experience as a long-time season ticket holder for the Anaheim Angels (or any major- or minor-league professional baseball team)!

Posted by: Anon | Oct 19, 2010 2:14:37 PM

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