What Were These Attorneys Thinking?

A story that ran in the Dallas Morning News on November 16, 2015, about the unusual fate of Raphael Holiday, an inmate on Texas’s death row, caught my attention: "Condemned Man's Lawyers Stop Helping, Cite 'False Hope'".

Mr. Holiday was scheduled to be executed on Wednesday, November 18, 2015. After the last appeal was denied by the United States Supreme Court, his appointed habeas attorneys wrote Mr. Holiday and told him there was nothing more they could do for him. They told him there was no hope that the Texas Parole Board or the Governor would ever grant him clemency, therefore they decided to not seek clemency on his behalf or do anything to try and stop or delay his execution. The reports indicate the attorneys did not meet with Mr. Holiday in person to break this news to him, but just sent him an impersonal letter. The attorneys basically abandoned their client at his greatest hour of need. Their excuse for this action was they did not want to give him “false hope.”

That was bad enough, but then after Mr. Holiday found another attorney who filed a request in federal court on his behalf requesting the appointment of new counsel, the same habeas attorneys filed an objection to that motion. The federal district court and the Fifth Circuit Court of Appeals denied the request for new counsel. The Fifth Circuit’s order affirming the district court’s denial of relief made a veiled threat to the pro bono attorney.

While pro bono counsel was asking the federal court to remove habeas counsel and appoint new counsel, the habeas attorneys filed a clemency petition with the Texas Parole Board, apparently without even consulting with or even informing Mr. Holiday. Not surprisingly, that petition was denied by the Texas Parole Board.

The state trial judge tried to do the right thing by withdrawing the execution warrant when Mr. Holiday’s original trial attorneys filed a motion. The State of Texas appealed that order and the Texas Court of Criminal Appeals reversed, which allowed the execution to proceed as scheduled. Mr. Holiday was executed by the State of Texas on November 18, 2015.

The Supreme Court also denied a request for stay of execution with no dissents. Justice Sotomayer filed a statement respecting the application for the state of execution and the denial of certiorari the same evening of the execution. Holiday v. Stephens, 577 U.S. ___ (Case No. 15A520, November 18, 2015).

I have been representing men (and a few women) on death row for over 20 years. I know that when I am appointed to a capital habeas case, I am in it for the long haul—either the grant of habeas relief, the grant of executive clemency, or execution. If I am not able to continue to represent a client because of a conflict, then I secure new counsel, or do not interfere with successor counsel to take on the case. My ethical duty to the client dictates that I do no harm and am a zealous advocate for the client’s interests.

Title 18 U.S.C. §3599, is the statutory authority by which all death sentenced defendants are entitled to court-appointed counsel during “all available post-conviction process.” The Supreme Court held in Harbison v. Bell, 556 U.S. 180 (2009), that representation includes state clemency proceedings.

I have witnessed 8 clients executed—7 in Oklahoma and 1 in Ohio. I cannot even begin to describe the feelings that I experienced while watching these eight humans die. I do know that as an attorney for those men, that is exactly where I needed to be for them. I tried to do everything I could, both within the limits of the law and my ethics, to stop or at least delay their executions, but I was not successful. I did not abandon them in their greatest hour of need though.

I only had one client who did not allow me to argue for executive clemency for him. His name was Malcolm Johnson. He had been convicted in Oklahoma City, Oklahoma of raping and murdering an elderly woman. The crime happened in 1982. He was executed January 2000. Mr. Johnson had maintained his innocence until his dying breath. I was assigned to Mr. Johnson’s case in about 1997. The district court had denied his habeas petition. The private habeas attorney from New York who had been representing him for many years was not interested in continuing with the appeal.

Part of the prosecution’s case against him was hair comparison evidence. At that time, the science behind hair comparison was under scrutiny in some courts, but it had not been debunked yet like it has been now. His trial was before Ake v. Oklahoma, which found it unconstitutional to deny the defense funds to hire their own independent experts. The Tenth Circuit Court of Appeals did agree that Mr. Malcolm's constitutional rights were violated, but because no prejudice was alleged in the habeas petition, the Court affirmed the denial of habeas relief.

As Mr. Johnson’s case was drawing to an end, and while we were waiting for the Supreme Court to rule on the last petition for writ of certiorari, we discussed seeking clemency. At that point in Oklahoma, the Parole Board had never recommended clemency for a death row inmate. In Oklahoma, the Governor can only grant clemency with a favorable recommendation from the Parole Board. I had participated in a few clemency hearings by then. But Mr. Johnson still did not want me to seek clemency for him. I raised the subject with him several times, until we had to make the final decision. He was firm that he did not want clemency, even though he still maintained his innocence. I did not abandon him, though.

Because his case involved the rape of the victim, I filed a request at the end for DNA testing. That testing was not available at the time of his trial, or previous appeals. The Oklahoma Attorney General though objected to that request at every stage I raised it—federal district court, Tenth Circuit Court of Appeals, and the Supreme Court. The argument raised was we were too late. The courts all agreed and no DNA testing was allowed or conducted.

After his execution, just a few weeks after in fact, news broke that the Oklahoma City Police Department had been investigating their forensic chemist Joyce Gilchrist for well over a year. They terminated her because of her incompetency as a forensic chemist. Ms. Gilchrist was the "expert" who had testified at Mr. Johnson's trial that hair found on the victim came from him.

The news stories and subsequent cases revealed that Ms. Gilchrist lied under oath about her credentials, had falsified reports, had testified in court beyond her abilities and beyond the science. She did all of this in most of the cases she touched, especially the capital cases. And the Oklahoma Attorney General knew about this investigation into Ms. Gilchrist, all while they argued it was too late for Mr. Johnson to have any of the evidence tested or reviewed by an independent expert.

Clearly, had the revelations of Ms. Gilchrist’s ineptness come to light before Mr. Johnson was executed, I would have used that in the arguments for the DNA testing. I may have been able to convince Mr. Johnson that seeking clemency was important for at least if he was alive, he would be able to continue to fight to prove his innocence.

I was not able to convince Mr. Johnson to avail himself of every available challenge to his conviction and sentence. His case though has taught me that where there is life there is hope. As a criminal defense attorney, I will avail myself of every legitimate avenue by which to put before every court and the entity the ability to stop the execution.

As Justice Sotomayor stated:

Executive clemency is fundamentally unpredictable. Clemency officials typically have “complete discretion” to commute a defendant’s sentence based on “a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations.” Ohio Adult Parole Authority v. Woodard, 523 U. S. 272, 278, 281 (1998) (principal opinion); see Tex. Const., Art. IV, §11; Tex. Code Crim. Proc. Ann., Art. 48.01 (Vernon Supp. 2014). By granting death-eligible defendants an attorney, “Congress ensured that no prisoner would be put to death without meaningful access to th[is] ‘“fail safe”’ of our justice system.” Harbison, 556 U. S. , at 194 (quoting Herrera v. Collins, 506 U. S. 390, 415 (1993)). So long as clemency proceedings were available” to Holiday, §3599(e), the interests of justice required the appointment of attorneys who would represent him in that process. Cf. Christeson v. Roper, 574 U. S. ___, ___ (2015) ( per curiam) (slip op., at 8) (reversing the denial of a substitution motion under §3599 despite the “host of procedural obstacles” confronting the petitioner’s claims).

Justice Sotomayor found in Mr. Holiday's case that the district court abused its discretion by not appointing new counsel. However, because the habeas attorneys filed a last minute clemency petition, there was nothing upon which to appoint new habeas counsel, even though Mr. Holiday’s case “would have benefited from additional preparation by more zealous advocates.” That seems to be an understatement considering that one of the claims raised in Mr. Holiday’s habeas case was that his execution may have been barred by Atkins v. Virginia, as he may have been intellectually disabled.

An attorney should never agree to accept, or continue with an appointment to a capital habeas case if they are unwilling to advocate for their client at every available forum that would stop the execution. To do less is unconscionable.