Standard hard to meet; Ky. justices review 2 cases
By R. G. Dunlop
The Courier-Journal
October 9, 2006
The Courier-JournalThere was a great deal that the Harlan County jury didn't know about 20-year-old Hugh Marlowe when it sentenced him to death in 1982 for robbing and murdering an elderly man out for a morning walk. The jury was unaware that Marlowe attempted to hang himself at 6 or 7, and that his parents cursed him as they cut him down.
The jury also had no idea that Marlowe's father repeatedly beat him and his siblings, that Marlowe sometimes slept in a crawl space under the house and that as an adult he exhibited evidence of brain damage.
None of that was introduced at trial because Marlowe's inexperienced attorney made no effort to obtain or to use information about his client's background to save his life.
Now, Marlowe's case is before the Kentucky Supreme Court, one of two such cases before the court in which death penalties were overturned by circuit judges who concluded the defendants received ineffective counsel.
If the court rules for Marlowe or for the other defendant, Charles Bussell, it would represent a watershed in Kentucky death-penalty litigation.
Since capital punishment was reinstated in 1976, the state Supreme Court has never upheld a circuit judge's ruling that overturned a capital murder conviction or a death sentence specifically due to ineffectiveness of trial counsel.
Most claims of inadequate legal representation are rejected because they fall short of the U.S. Supreme Court standard for proving ineffectiveness of counsel.
The test is not simply whether the attorney's performance was deficient, but also whether there is a "reasonable probability" that, but for the attorney's unprofessional conduct, the result would have been different.
In Marlowe's case, Special Circuit Judge Cletus Maricle concluded that Marlowe's lawyer had failed to effectively represent him during the penalty phase of his trial.
"There should be some investigation of the background of the defendant in any case where death is a possible penalty, and in this case in particular we have a family situation that was disastrously dysfunctional," Maricle said in his March 2002 ruling.
"This was unquestionably a heinous crime, but it is also heinous for the jury not to have heard all relevant evidence."
Marlowe's trial attorney, Francis Goodwyn, readily acknowledges that he didn't provide his client with effective counsel.
Circuit Judge Charles Boteler granted Bussell a new trial late last year after concluding that his attorneys had provided "virtually no defense" to charges that he robbed and murdered a Christian County woman in 1990.
"Under the most rudimentary understanding of due process of law, Bussell's trial failed," Boteler wrote in his opinion. Prosecutors had "free rein," and the jury "was given little reason not to fix the most severe penalty" -- which it imposed in November 1991 following a whirlwind, 2 ½-day trial that was broadcast live by a local television station.
Boteler was particularly unsparing in his criticism of Bussell's lead attorney, former public defender Joel R. Embry, of whom the judge said:
"If Embry's performance does not constitute ineffectiveness of counsel, then the doctrine can never be used successfully. This is a textbook example of ineffectiveness of counsel."
'Did the best we could'
Since his conviction for murder, Bussell has spent nearly 15 years on death row at the Kentucky State Penitentiary at Eddyville, much of it in isolation.
Embry is also in prison, serving a 10-year term for drug possession and for second-degree manslaughter in connection with the death of his elderly mother in February 1999.
Embry said in an interview at the Blackburn Correctional Complex near Lexington that he became addicted to crack cocaine after his father suffered a fatal heart attack on the night Bussell was convicted and consigned to the electric chair.
His father's death left Embry as the primary caregiver for his mother, who was physically and mentally infirm. Embry said drug addiction impaired his judgment about his mother's care and caused him to neglect her to the point that she ultimately died of starvation.
While accepting responsibility and expressing remorse for his mother's death, Embry defended his work in Bussell's case, though he said a heavy caseload precluded him from devoting as much time to it has he might have liked.
He characterized Bussell as a difficult and uncooperative client. He said he and his co-counsel "did the best we could."
Boteler, however, concluded that Embry's defense of Bussell was "constitutionally defective," and that he failed to investigate and present potentially favorable evidence or effectively cross-examine the state's witnesses.
"If Embry had investigated, he would have found the evidence he needed for mitigation, and if this evidence had been presented, there is a reasonable probability the death sentence would have been different," Boteler concluded. "Embry was unable to show the jury that Bussell had a single positive character trait because he had not taken the time to find out if he possessed any."
The judge also said Embry's closing argument to the jury before it sentenced Bussell to death was so brief -- less than six minutes -- that it reminded him of a mock-trial exercise in law school.
National picture
The Cincinnati-based 6th U.S. Circuit Court of Appeals, which has jurisdiction over four states, including Kentucky, has said that a defense counsel's failure to present mitigating (favorable) evidence during the sentencing phase constitutes ineffective legal representation.
Just since July, the 6th Circuit has ruled that the death sentences in three Ohio cases should not stand because the defendants' attorneys rendered ineffective assistance by failing to present mitigating evidence before sentencing.
For the same reason, the court in October 2000 overturned the death sentence in a Kentucky case involving David Leroy Skaggs, who was convicted of murdering a Barren County couple in 1981. Following a new sentencing hearing, Skaggs was again given the death penalty. His case is now pending before the Kentucky Supreme Court on numerous issues, including his mental capacity.
Nationwide studies have shown that, over the years, more than 60 percent of all death penalty convictions or sentences have been reversed on appeal, mostly on grounds other than ineffectiveness of counsel, such as errors by the prosecution or the trial judge.
Kentucky has largely mirrored the national picture, according to Rebecca DiLoreto, who supervises the post-trial and appellate work done by the state Department of Public Advocacy.
Stephen Bright, an Atlanta-based authority on the death penalty, said he thinks the nationwide reversal rate is now declining, largely because the quality of death-penalty defense has improved.
"I don't know of any court reversing at a 60 percent rate today," Bright said in an interview.
Ed Monahan agrees that strides have been made in Kentucky death-penalty representation, but he also believes that "better" still isn't good enough.
"We're not there yet, but we're moving in that direction," said Monahan, an attorney who spent 28 years with the state Department of Public Advocacy and now serves as executive director of the Catholic Conference of Kentucky.
Ernie Lewis, the state's public advocate, agreed that public defenders are far less likely to provide ineffective representation in death-penalty cases now than in the past. That is so, Lewis said, in part because the department has adopted American Bar Association standards for legal representation in such cases.
Those standards recommend an experienced defense team consisting of at least two attorneys, an investigator and a "mitigation specialist" who assembles the defendant's social history.
In addition, Lewis said the department also now provides more training for, and oversight of, its attorneys defending capital cases.
But Lewis said a lot more resources are needed. "Our caseloads are too high. Our salaries are too low. We have too much turnover. We have lawyers trying capital cases who have other heavy responsibilities."
For those reasons, Lewis said, "I cannot guarantee effective assistance of counsel in every capital case."
Not enough experience
Goodwyn, Marlowe's trial attorney, said in a recent interview that at the time of trial, he had been practicing law for less than two years, had never before handled a death-penalty case and had tried only a few felony cases of any kind.
"I don't think I had any business doing a case like that, with my level of experience," Goodwyn said. "I don't think I was prepared at all."
Goodwyn doesn't recall talking to anyone in Frankfort about the case -- in part because he said he didn't know enough to seek help, or what to ask for. Nor did it occur to him to request funds to hire expert witnesses, such as a psychologist to assess Marlowe's mental state, or to probe his background.
"I don't think I knew what I was doing," Goodwyn said. "… I didn't know what was going on. I didn't investigate anything. I concentrated on guilt or innocence." |
