Business and Finance Blog

The story from the AJC is printed below.  To me, it is ridiculous that this execution was scheduled the way it was.  The Supreme Court was scheduled to decide if they would hear the appeal from the Georgia Supreme Court (which was a 4-3 decision).  Instead of letting the appeal run its course, the powers that be in Georgia tried to beat the high court to the punch by hastily scheduling his execution prior to the high court’s decision on whether they would hear the appeal.  If you kill a police officer, sure you deserve the death penalty.  But before it’s given, let’s at least be sure that the man is guilty.  From what I have read about the case, there appears to be an abundance of reasonable doubt and if the case was tried again, he would most likely be acquitted.  The court’s have continued to give great defference to the original jury’s verdict, despite the recantations.  Read on.

The U.S. Supreme Court on Tuesday issued a stay of execution for Troy Anthony Davis less than two hours before he was to be put to death by lethal injection.

Davis’ family and supporters, who for years have pressed for a new trial on claims Davis is innocent, broke into tears and song when they learned the high court had at least temporarily postponed the execution.

Troy Davis received a stay of execution just before he was set to receive a lethal injection for the 1989 murder of a Savannah police officer.

“I’ve been praying for this moment forever,” said Davis’s sister and most outspoken proponent, Martina Correia. Davis’ mother, Virginia Davis, said God had answered their prayers.

Just a few hours earlier, the mother and sister had given Davis what they thought could be their final good-byes at the Georgia Diagnostic and Classification Prison in Jackson.

Davis, 39, sits on death row for the Aug. 19, 1989, killing of Savannah Police Officer Mark Allen MacPhail. He was scheduled to be executed at 7 p.m.

Annelie Reaves, MacPhail’s sister, said the victim’s family was furious but would wait for the execution to be rescheduled.

“It should have happened today,” she said, “but justice will be served.”

At least two members of MacPhail’s family were to witness the execution, and they will return when the execution is rescheduled, Reaves said.

In response to Davis’ hope that the real killer will be found, the officer’s family and friends all laughed. “He knows who the killer is,” Reaves said of Davis.

It was the second time that Davis, whose claims of innocence have attracted international attention, was granted a stay hours before he was to be put to death. In July 2007, the state Board of Pardons and Paroles postponed his execution less than 24 hours before it was to occur.

This time, the stay came from the nation’s highest court.

The U.S. Supreme Court’s justices are scheduled to meet Monday to decide whether to hear Davis’ appeal of a ruling issued by the Georgia Supreme Court in March. In that 4-3 decision, the state Supreme Court rejected Davis’ bid for a new trial or a court hearing to present new evidence.

In its order, the U.S. Supreme Court said if the justices decline to hear Davis’ case, “this stay shall terminate automatically.” If the court agrees to hear the case, the stay will remain in force until the high court issues its ultimate ruling, the order said.

The high court did not say when it would announce its decision whether to hear or deny Davis’ appeal.

Davis disclosed the news of his stay in a phone call to his sister and civil rights activist Rev. Al Sharpton.

“I truly feel blessed and I know we still have work to do,” Davis said, according to Sharpton. “With God, all things are possible.”

According to Sharpton, Davis said he had already recorded his last statement, as is customary for death-row inmates before they are to be executed. Davis said he had also prayed for the family of MacPhail, a 27-year-old father of two who was gunned down at a Savannah Burger King parking lot.

Because the U.S. Supreme Court is expected to announce whether it will hear the appeal in the next week or so, Davis may not be spared for long, Sharpton said.

“One week may not seem like a long time, but when you have only two hours to live it’s a lifetime,” he added.

Lester Davis, Troy Davis’ brother, said, “I’ve got to stay focused because it’s not over yet. Hopefully, this gives them enough time to understand the injustice of this case.”

Since his 1991 trial, seven of nine key prosecution witnesses who testified against Davis have recanted their testimony.

In March, a deeply divided state Supreme Court turned down Davis’ appeal, saying the recantations of seven witnesses who testified against him were not enough to win him a new trial or court hearing.

“We simply cannot disregard the jury’s verdict,” Justice Harold Melton wrote. The majority, he added, could not ignore the trial testimony, “and, in fact, we favor that original testimony over the new.”

Chief Justice Leah Ward Sears issued a strong dissent.

“If recantation testimony, either alone or supported by other evidence, shows convincingly that prior trial testimony was false, it simply defies all logic and morality to hold that it must be disregarded categorically,” she wrote.

The new testimony, if found credible, could lead a new jury to find reasonable doubt of Davis’ guilt or enough residual doubt to impose a sentence other than death, she wrote.

Source: Rob Leonard

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.”

Source: Rob Leonard

Source: Rob Leonard

Reversing course from rulings by three-judge panels, the full 11th U.S. Circuit Court of Appeals has ruled unanimously that criminal defendants’ rejection of their appointed counsel can amount to a waiver of their right to counsel altogether.That conclusion came in the court’s reinstatement of two convictions—one of a man accused of making a series of bomb threats in Macon and another man accused in the death of his 3-month-old daughter in DeKalb County. Prior panels had found that the defendants had been deprived of their constitutional right to counsel when trial judges allowed them to represent themselves despite their indications they wanted a free lawyer—just not the one they had been assigned. But when the full 11th Circuit reviewed the cases, all 12 of the judges agreed to reinstate the Macon bomb threat conviction and only Judge Rosemary Barkett dissented from the reinstatement of the DeKalb murder conviction. In that case, she said the defendant should get relief because there was no record the trial judge warned him of the dangers of representing himself. The decisions may give trial judges some comfort about defendants who represent themselves even when they vacillate over whether that’s what they want to do. “I think the main thing the opinion does is it takes the judge out of the quandary” that occurred in the Macon case, “where the defendant does not give him a definitive answer in words, but through his actions,” said George F. “Pete” Peterman III, the first assistant U.S. attorney at the federal prosecutor’s office in Macon, which prosecuted the bomb threat case against Eddie M. Garey Jr.However, the 11th Circuit’s rulings do not appear to portend a rash of defendants trying to feel their way through the complexities of a criminal trial. Notwithstanding the string of similar cases in the 11th Circuit, Peterman called the fact pattern presented in the Macon case “fairly unusual” in his experience.Moreover, a U.S. Supreme Court decision in June could still curb judges’ exercise of their freedom to take defendants’ refusal to get along with appointed counsel as a waiver of the right to a lawyer. In Indiana v. Edwards, 128 S.Ct. 2379, the high court held that judges may force mentally ill defendants to accept a lawyer’s help when the defendants “are not competent to conduct trial proceedings by themselves.”“Hopefully we’ll see more application of the Edwards rule that you can’t fire your trial counsel,” said Columbus attorney William J. Mason, who represented Garey at the 11th Circuit. “And this would have been a nice one to start with.”Garey had asked U.S. District Judge Clay D. Land to disqualify his appointed lawyer, Scott C. Huggins of Macon, contending that Huggins’ law office had been one of the targets in the alleged 2003 bomb threats. Land found there was no conflict of interest and gave Garey two choices: keep Huggins or represent yourself. Garey, who has been described by his current counsel as being paranoid schizophrenic and by the 11th Circuit as having paranoid personality disorder, said he would “involuntarily” act as his own lawyer. After a jury trial in which Huggins served as stand-by counsel Garey was found guilty on various counts, including obstruction of justice and threatening to use a weapon of mass destruction, and sentenced to 30 years in prison.Garey appealed, and in April 2007, 11th Circuit Judge Stanley F. Birch Jr., joined by a federal district judge visiting from Florida, wrote that Garey deserved a new trial because his actions were insufficient to invoke his right to self-representation. Judge Susan H. Black dissented.In August 2007, another panel issued a similar ruling in the habeas case of Melvin C. Jones, charged in connection to the death of his 3-month-old daughter. That opinion said the evidence showed Jones had dropped his daughter head first onto a bed and she suffered a fatal subdural hematoma. Before his 1996 trial, Jones had been given Claudia S. Saari of the DeKalb County public defender’s office, who had been with the office for eight years at the time. In the DeKalb case, Jones had told DeKalb Judge James H. Weeks (now on senior status) that the public defender’s office wasn’t equipped to handle such a serious case. After some back and forth during which Jones tried to represent himself, then reconciled with Saari only to insist on new counsel again, Weeks ultimately relieved Saari of her duties. The judge told Jones he was “making a horrible mistake,” but Jones represented himself at the three-day trial during which he was convicted of felony murder and cruelty to children and was sentenced to life in prison.Jones got a lawyer on appeal, and the state Supreme Court rejected his arguments that he hadn’t validly waived his right to counsel. When the federal habeas case landed at the 11th Circuit, Birch, 11th Circuit Judge Edward E. Carnes and a judge visiting from the 9th Circuit, Melvin Brunetti, agreed Jones also was entitled to a new trial. Brunetti’s opinion said Jones’ rejection of Saari didn’t amount to a sufficiently clear waiver of his right to counsel.Black carries the courtBlack, the lone dissenter among the judges on the two panels, wrote the en banc opinions in both cases. In the Garey case, she wrote that an earlier 11th Circuit decision, Marshall v. Dugger, 925 F.2d 374 (1991), was wrongly decided to the extent it indicated a waiver of right to counsel could not occur without an affirmative request for self-representation by the defendant.“Today we recognize it is possible for a valid waiver of counsel to occur not only when a cooperative defendant affirmatively invokes his right to self-representation,” wrote Black, “but also when an uncooperative defendant rejects the only counsel to which he is constitutionally entitled, understanding his only alternative is self-representation with its many attendant dangers.”Black cited cases out of the 2nd, 6th and 9th Circuits as having concluded that a litigant may waive his right to court-appointed counsel by rejecting his assigned counsel. In contrast, she wrote that the 3rd Circuit had, in her words, suggested “only dilatory behavior or other misconduct might justify waiver by conduct.”She explained that the court didn’t mean to encourage judges to make uncooperative defendants represent themselves—judges simply have discretion to conclude a defendant has waived his right to counsel, she wrote. Noting the recent high court decision allowing judges to order defendants to keep their lawyers, Black wrote, “Our decision today is meant to provide trial courts with guidance and discretion—not to force courts to discharge counsel against their better judgment.”Barkett concurred in the decision to uphold Garey’s conviction, citing among other factors that the trial judge “extensively warned Garey on the record of the dangers of self-representation” and required Huggins to remain on as stand-by counsel. But she dissented from the decision to uphold Jones’ conviction.Despite the vote of 11-1, Black’s en banc opinion in the Jones case suggested the court had a more difficult time on the issue of whether Jones had been properly warned.The DeKalb trial judge had not warned Jones of the dangers of self-representation, wrote Black, adding that contrary to the opinion by the state Supreme Court on direct appeal, there was nothing in the record to show Saari testified that she had counseled him on those dangers. “If confronted with this record on direct appeal,” wrote Black, “we would be unable to say the Government had established Jones’ waiver was knowingly made.” The problem for Jones was that the 11th Circuit was not hearing a direct appeal, but a habeas corpus case in which, Black said, the burden is on the defendant, not the government. As a result, Jones had the burden to show he did not understand the dangers of self-representation, Black wrote. Although he was 21 years old when charged, had minimal experience with the criminal justice system and was provided no stand-by counsel, she wrote, that he was not mentally ill and demonstrated some understanding of courtroom rules and procedures helped show that his waiver “was not unknowing.”In her dissent, Barkett wrote that she thought ordering a defendant to proceed pro se against his wishes, without stand-by counsel, is “rarely constitutional.” But she said she didn’t need to go that far, because the trial judge hadn’t warned Jones about the hazards of self-representation.Alston & Bird associate Matthew D. Richardson, who was appointed to represent Jones at the 11th Circuit, said Thursday he was seriously considering filing a petition asking the U.S. Supreme Court to look at the case. He said the 11th Circuit had adopted an “interesting new standard” on what demonstrates knowledge of the dangers of self-representation that’s possibly out of step with other circuits.“Now a criminal defendant has the burden of proving a negative,” said Richardson. “Now he’s got to prove that he doesn’t have knowledge. … The absence of the warnings is typically evidence of lack of knowledge.”Mason said he will seek an appeal of the decision in Garey’s case at the U.S. Supreme Court. “I’m pretty sure that Mr. Garey is going to require that I do,” said Mason, noting with some irony, “The 11th Circuit won’t let him fire me.” Mason said he also would have to pursue two sentencing issues that had been raised on appeal but not addressed by either the 11th Circuit panel or the en banc court. The successful en banc argument in Garey’s case was made by Washington lawyer Elizabeth D. Collery of the Department of Justice. Senior Assistant Attorney General Paula K. Smith of the Georgia Department of Law argued in defense of Jones’ conviction.A spokesman for state Attorney General Thurbert E. Baker, Russ Willard, said the AG’s office was very pleased with the decision. “The court’s ruling will give another tool to judges to deal with defendants who try to game and delay the system,” said Willard.The cases were U.S. v. Garey, No. 05-14631, and Jones v. Walker, No. 04-13562 (Aug. 20).

Source: Rob Leonard

WASHINGTON - The Supreme Court ruled Wednesday that a convicted killer deserves a new trial because jurors heard testimony that should have been excluded. His ex-girlfriend made the statements shortly before he killed her.

The justices, in a 6-3 vote, reaffirmed the rights of criminal defendants to confront witnesses against them, even in cases where the defendant is responsible for the witness’ absence.

The issue arose in the case of Dwayne Giles, arrested in the shooting death of Brenda Avie in 2002, several weeks after she told police that Giles had assaulted her and threatened to kill her.

Justice Antonin Scalia said in his majority opinion that domestic violence, though “an intolerable offense,” does not justify “abridging the rights of criminal defendants.”

In dissent, Justice Stephen Breyer said the court should have ruled that defendants forfeit their constitutional right to confront witnesses when they are responsible for the witness’ absence from trial. Wednesday’s ruling, Breyer said, “grants the defendant not fair treatment, but a windfall.”

Domestic violence experts said they feared a ruling for Giles would dissuade victims from going to authorities and make it harder to convict offenders.

The ruling does not alter the admissibility of a victim’s prior statements when a defendant kills someone to prevent him from testifying. In that case, the earlier statements may be used.

Source: Rob Leonard

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.

Source: Rob Leonard

Once in a while you come across something that is just too funny to not pass on to others.  This has nothing to do with criminal law, but this Judge certainly sounds like he has a good sense of humor.  For those of you not familiar with Texarkana, it is situated on the state line in between Arkansas and Texas.  The line runs right through the courthouse.  Click here to read the Order

Source: Rob Leonard

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.

Source: Rob Leonard

“We interpret ambiguous criminal statutes in favor of defendants, not prosecutors.”

Justice Antonin Scalia in US v. Santos decided June 2, 2008.

Source: Rob Leonard

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.

Source: Rob Leonard