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September 15, 2012

Lengthy opinions from split Eleventh Circuit panel affirming Georgia death sentence

Anyone eager to spend much of the weekend reading a federal capital habeas ruling should be sure to review in full the 150+ pages coming from an Eleventh Circuit panel earlier this week in Hosley v. Warden, No. 09-14257 (11th Cir. Sept. 13, 2012) (available here).  This local article about the ruling provides these highlights:

The federal appeals court has upheld a death sentence against man who killed a sheriff’s deputy, even though the condemned inmate’s lead lawyer drank a quart of vodka every day during trial.

The 11th U.S. Circuit Court of Appeals in Atlanta, in a 2-1 decision issued Thursday, said that even though Robert Wayne Holsey’s trial lawyers did not do a competent job, their deficient performance did not prejudice the outcome of the trial.  Holsey sits on Georgia’s death row for fatally shooting Baldwin County Deputy Will Robinson after an armed robbery of a convenience store in December 1995.

Holsey’s appellate lawyers noted that his lead trial lawyer, Andrew Prince, drank a quart of vodka every night of Holsey’s trial because he was about to be sued and prosecuted for stealing client funds.  During Holsey’s appeal, Prince testified that he “probably shouldn’t have been allowed to represent anybody” because of his condition.

In its ruling, the 11th Circuit said the key question was not whether Holsey’s lawyers were ineffective.  It was whether their deficient performance prejudiced the outcome to the point there was a reasonable probability Holsey would not have been sentenced to death.

Judge Ed Carnes, writing the majority opinion, said the abundant aggravating factors — such as the fact Holsey killed a deputy to avoid arrest and had a prior armed robbery conviction — outweighed any additional mitigation evidence Holsey’s lawyers could have presented to the jury had they been doing their job.

Thanks to this post at How Appealing, I discovered that perhaps the most intriguing aspect of the panel's work is Judge Edmondson's concurring opinion, which begins this way:

I stand with Judge Carnes about the correct judgment in this appeal: AFFIRM the District Court’s judgment to deny habeas corpus relief to the state prisoner petitioner.  I -- very respectfully -- do not join in Judge Carnes’s erudite opinion.  I stress that it is not because the opinion says something that I am sure is wrong or I am sure is even likely wrong.  I agree with much of the opinion, at least.  But the opinion says a lot and says more than I think is absolutely needed.
In my experience, longish opinions always present a strong possibility of error lurking somewhere in the text.  That the opinion writer is a skilled and careful judge does not eliminate the risk.  Furthermore, no one wishes to join in an opinion that they do not understand fully.  It is hard, time-consuming, painstaking work for the panel’s other judges to check long opinions, line by line, cited case by cited case. (Of course, always other cases are awaiting decision and also demand the judges’ time and attention.) Moreover, long opinions, even if correct in every detail, generally make it harder for readers to separate a holding from dicta (or less than dicta: words only of explication and nothing more).  The confusion of holding and dicta makes correctly deciding future cases more difficult, when judges are looking back for precedents.  Sometimes, the oddest bits are lifted out of opinions -- especially the longer ones (often words as to some peripheral point) -- and later quoted flatly as law: as if someone was quoting a statute.  So, I feel more comfortable today just focusing briefly on my own view of a vital point.

September 15, 2012 at 04:59 PM | Permalink


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The aggravating factors may, in fact, be present. Nevertheless, the Process, as guaranteed by the Constitution, is defective! This sounds like a variation on the theme, "If you are guilty, why do you need a lawyer?"

This decision feels like that Texas case a few years ago where the lawyer slept through trial. This decision basically says that it doesn't make a difference, because there was nothing else to do. (No prejudice) I think having a sane and sober lawyer could very likely affect the presentation at the sentencing phase, as well as the outcome.

Maybe the court meant to say that despite the lawyer's conduct, the presentation at sentencing was a competent one.

Posted by: Stanley Feldman | Sep 16, 2012 12:42:34 PM

Mr. Feldman,

Clearly due process and effective counsel are meaningful to you.

Does the term "probative" mean much to you as well, or do you find it under whelming?

Posted by: Adamakis | Sep 17, 2012 12:22:39 PM

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