Jury Didn't Know Defendant's Name, But Death Sentence is Affirmed

By TChris, Section Death Penalty
Posted on Thu Nov 02, 2006 at 11:21:05 AM EST
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Some judges seem to believe that no error during a trial is so egregious that it justifies overturning a death sentence. Half the judges on the Sixth Circuit were undisturbed that the jury didn't even learn Jeffrey Leonard's true identity before it voted for his execution. Nor did the jury learn anything of Leonard's grim past.

Mr. Leonard’s current lawyers say a competent investigation of his background would have yielded a trove of evidence that might well have persuaded the jury to spare his life. He is, for instance, apparently brain damaged, and he endured a brutal childhood.

By a 7-7 vote, the Sixth Circuit decided not to disturb a 2-1 panel vote that affirmed Leonard's death sentence on the theory that a fully informed jury would still have voted for death. The other seven judges must have been gazing into a different crystal ball. In dissent, Judge Coffman was appropriately skeptical of the opinion that no juror would have been swayed by the mitigating information that wasn't presented.

In yesterday’s dissent, Judge Cole listed some of the information that [defense counsel Ferdinand] Radolovich had failed to locate. Mr. Leonard “has possible brain damage from an untreated childhood skull fracture.” His mother and stepfather “beat him so badly as a child that scars remain all over his body.” His stepfather “once fired a gun at him as he ran out of his home carrying his younger brother.” And “his mother, brothers and grandparents (who did not know about the trial) would have testified on his behalf.”

It only takes one juror to block a death sentence. One juror has already said that she wouldn't have voted for death if she had known more about Leonard (although that isn't the kind of information upon which the court's ruling can be based). And so we have a case in which the court agrees that the defense lawyer didn't provide effective representation, and in which the unheard mitigating evidence is powerful, yet the defendant's death sentence is undisturbed.

There's nothing "harmless" about failing to present strong mitigation evidence during a death penalty trial. This decision cries out for Supreme Court review.

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Jury Didn't Know Defendant's Name, But Death Sentence is Affirmed | 11 comments (11 topical)

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Re: (none / 0) (#1)
by Deconstructionist on Thu Nov 02, 2006 at 11:31:54 AM EST

The last paragraph is probably more disturbing than even the opinion:

Mr. Radolovich [the trial lawyer whose representation was found incompetent and ineffective -- just "not prejudicial"] said he had mixed sentiments about yesterday's decision. "I'm heartsick that James went to death row," Mr. Radolovich said. "But after he told me he did it and after he lied to me, I'm a little less sympathetic."

By the way Radolovich was convicted of perjury for overstating his experience under oath, so his intolerance for less than truthful clients seems just a tad unfair.

If the Supreme Court denies cert or upholds the 6th Cir., it would be nice if the Kentucky Governor had enough compassion and courage to commute the sentence

Decon (none / 0) (#2)
by sarcastic unnamed one on Thu Nov 02, 2006 at 11:45:01 AM EST

While I'm certainly no fan of Radolovich, it appears he was not convicted of perjury.

When he was later challenged about the quality of his work on the case, Mr. Radolovich testified that he was an accomplished death penalty lawyer at the time, having tried four capital cases. The real number was zero, the federal judge, Jennifer B. Coffman, found, and Mr. Radolovich has been indicted for perjury for his statement.[...]
He [Radolovich] added that the perjury charge, to which he has pleaded not guilty, was a result of a misunderstanding. While he acknowledged that the Leonard case was his first capital trial, he said that his testimony, at a 1994 state court hearing on Mr. Leonard's motion to vacate his conviction, meant to refer to experience he gained after the trial.

fwiw

you're right (none / 0) (#3)
by Deconstructionist on Thu Nov 02, 2006 at 01:21:50 PM EST

I found his comment about his client so indefensible, i missed the "not."

Now that I read it more closely, I'm surprised a 1994 statement is not beyond the SOL. Most jurisdictions have relativelt short SOLs for perjury and false swearing-- even those with no SOL for most felonies.

: SoL (none / 0) (#4)
by scribe on Thu Nov 02, 2006 at 01:33:21 PM EST

It may be there's some tolling doctrine at work here of which we're unaware.
Or, alternatively, poetic justice has given the attorney-defendant for his case trial counsel of competence coordinate to the level he displayed in representing his now-condemned client.
Frankly, while I've often felt about clients, particularly dishonest-with-their-attorney clients, the way the attorney says he does, I don't ever recall going public with it*.
It just strikes me as unseemly for the attorney to be doing that. He'd probably do his client a favor if he were to come out and say something along the lines of "I didn't do as good a job as could have been done, even by someone of my skills and experience**, and I feel really badly for letting my client down."
-
*With one exception, and that was in a court filing which was much more mild than the letter I sent the client, firing him as a client.
**Which is a phraseology that neither touts nor denigrates his own skills.

SOL (none / 0) (#5)
by Deconstructionist on Thu Nov 02, 2006 at 02:19:56 PM EST

It appears KY may not have a special SOL for perjury. I can't find one in a WL search just §500.050 a general provision stating no time limitation for felonies unless otherwise provided.

I'd also have to say that he might have a good defense on the "materiality" requirement even if he did unambiguosly and intentionally misrepresent the amount of experience he had at the time of the trial

Was whether it was his 1st or 4th capital case material to whether his representation was below the standard required by Strickland's first prong?

name/history (none / 0) (#6)
by diogenes on Thu Nov 02, 2006 at 03:53:55 PM EST

The NY time internet article on this says that the defendent lied to his lawyer about his name and that his family did not testify because no one told them that the defendent was on trial. It is surely the responsibility of a defendent to give his correct name to his lawyer and, if he wants family support, to call his family on the phone.
The murder was of a convenience store worker in 1983, as per the times. Whether the defendent was abused as a child (did the victim remind him of his mother?) or is "brain damaged" (though it is not a matter of appeal or dispute that he was somehow unfit for trial or not guilty by reason of insanity) is not really an issue.
Those who oppose the death penalty should do so head on rather than by manipulating individual cases.

re: (none / 0) (#7)
by Deconstructionist on Thu Nov 02, 2006 at 04:11:42 PM EST

A defense lawyer has a duty to properly investigate all matters relevant both to guilt and innocence and mitigation of punishment. the problem here is that the defense lawyer appears to have made NO meaningful investigation. It would be a different matter if he made a reasonable investigation and still failed to learn his client's identity and background.

It's one thing for a lawyer to say: "here's what I did," and for a court to find it the type of investigation a reasonable competent attorney would perform. Here EVERY COURT at every level agreed it's not reasonable just to say "what could I do" to defend doing nothing.

As for prejudice the standard is supposed to be whether there is ANY reasonable possibility that had the attorney performed competently the outcome might have been different. I simply cannot agree there is no reasonable possibility that a unanimous vote for death would not have ensued if the jury had heard about his background. You are simply substituting your INDIVIDUAL view that the information would not have swayed your INDIVIDUAL vote.

I could not disagree more with your final assertion one should not identify particular INDIVIDUAL cases in which one believes justice has not been served-- whether they involve the death penalty or not.

MANY people are not completely opposed to the death penalty but find certain specific cases to be wrongly decided. In fact, I would hope that almost everyone would agree, regardless of their beliefs about capital punishment in general, that we have too many INDIVIDUAL cases where the death penalty is wrongly imposed. If nothing else the ones where the defendant is subsequently shown to be factually innocent should at least slightly trouble you.

name/history (none / 0) (#8)
by sarcastic unnamed one on Thu Nov 02, 2006 at 04:27:31 PM EST

Is it common practice for a defense attorney to authenticate the identity of his clients?

iow, if I, for example, needed and hired a defense attorney, would he/she authenticate the name, SS#, etc., of the ID I provided? Was it common practice 20+ years ago?

Also, if the murderer's deliberate deception of his attorney - and the whole court system, apparently - leads to a re-trial or some mitigation of his sentence, I would suggest that every smart defense attorney from now on should refrain from authenticating the identities of their clients.

I read the opinion... (none / 0) (#9)
by Deconstructionist on Thu Nov 02, 2006 at 04:41:04 PM EST

It appears that Mt. Radolovich testified that he had handled 4 capital cases while working as an ADA in New York prior to representing Slaughter and someone in that that office executed an affidavit stating that testimony was false and he had worked there less than a year and did not handle any capital cases.

It looks like he might sorely need the "materiality" defense because the "it was a misunderstanding" defense doesn't look real promising. In light of that, the claim he was talking about his experience at the time he testified at the habeas hearing and not when he defended Slaughter is beyond a stretch.

Common practice in a capital case.. (none / 0) (#10)
by Deconstructionist on Thu Nov 02, 2006 at 04:49:43 PM EST

is and was to conduct a complete background check from birth to present. Had the attorney done that he would have at the least discovered the lack of matching birth records, school records, health records, SSN, employment records, military records, IRS records and so on.

Then knowing he could find no such records he could at the least tell his client that he can't find anything and it's time to get straight with him. If the lawyer had done such an investigation struck out and then still been rebuffed by his client then there would be a reasonable argument that he had done all that a competent attorney would have done.

Clearly the client greatly contributed to the problem here but that doesn't let the attorney off the hook.

: Common practice (none / 0) (#11)
by sarcastic unnamed one on Thu Nov 02, 2006 at 05:05:17 PM EST

Thanks Decon. Makes sense.