As Executions Resume, So Do Questions of Fairness

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The New York Times

As Executions Resume, So Do Questions of Fairness

by
Shaila Dewan

RALEIGH, N.C. - The release of the third death row inmate in six months in North Carolina last week is raising fresh questions about whether states are supplying capital-murder defendants with adequate counsel, even as an execution on Tuesday night in Georgia ended a seven-month national suspension.0507 11

In all three cases, North Carolina appeals courts found that evidence that would have favored the defendants was withheld from defense lawyers by prosecutors or investigators. In two of the cases, including that of Levon Jones, who was released on Friday after 14 years on death row, the courts said the defendants' lawyers had failed to mount an adequate defense. Nationwide, Mr. Jones's release was the sixth in a year.

John Holdridge, director of the A.C.L.U. Capital Punishment Project, which provided representation for Mr. Jones, said the successful appeals showed that the problem with the death penalty was not the method of execution - the issue ruled on by the Supreme Court last month - but instead "poor people getting lousy lawyers."

"All these states are gearing up to start executing people again, and nobody seems to be concerned about these systemic problems," Mr. Holdridge said.

On Tuesday evening, after the Supreme Court declined to stop it, the State of Georgia conducted the first execution since the court ruled last month that a method of lethal injection was not unconstitutional. William E. Lynd, 53, was put to death by injection for the 1988 killing of his girlfriend, Ginger Moore. No prisoners had been executed in the United States since last September, while the court was considering the issue.

During that same period, Georgia's new public defender system came under attack by politicians and was recently forced to cut more than 40 positions.

That system, established after a series of lawsuits, was patterned after one North Carolina put in place in 2001, which was considered a national model. But not many other states have followed suit, said Robin Maher, director of the American Bar Association's Death Penalty Representation Project.

"I wish I could say that things have gotten a lot better, but in fact I can say with confidence that things have changed not much at all," Ms. Maher said. "We are seeing the same kinds of egregiously bad lawyering that we saw 10 or 15 years ago, for a variety of reasons, including inadequate funding."

Of the 36 states that allow the death penalty, only about 10 have statewide capital-defense systems, one of the practices recommended by the Bar Association.

The three men released in North Carolina were all convicted in the mid-1990s, before a barrage of criticism of the state's capital punishment system, including an investigation in 2000 by The Charlotte Observer that showed that 16 death row inmates had been represented by lawyers who were later disbarred.

North Carolina made a number of changes that included establishing the statewide defender system and broader discovery rules for defense lawyers. Beginning in 1996, defense lawyers working on appeals in death penalty cases were permitted to view all investigative files pertaining to the case, and in 2004 the same right was extended to the defense in all criminal cases.

Joseph B. Cheshire, the lawyer for one of the three released men, Jonathon Hoffman, credited the discovery rules with bringing to light what he called a pattern of wrongful convictions.

The court-appointed trial lawyers for Mr. Hoffman, convicted of killing a jewelry store owner during a robbery, were not told that the main witness against him had been paid for his cooperation and was given immunity from prosecution and a reduced sentence for bank robbery. Mr. Cheshire said that a copy of the district attorney's notes was altered to conceal those facts before they were provided to the defense for discovery. Mr. Hoffman was released in December.

Mr. Cheshire is also the chairman of the state's Indigent Defense Services Commission. Thanks to those two changes, he said, "the likelihood today of someone being convicted who's innocent is far less than it was five or six years ago."

The man who prosecuted Mr. Jones, however, does not concede that the defendant was innocent. The prosecutor, G. Dewey Hudson, said that he still believed that Mr. Jones was involved in the murder, but that he could not retry him because crucial witnesses had died and one had recanted.

"It has taken 15 years for the court system to make the determination that Mr. Jones's original counsel was ineffective," Mr. Hudson said in a statement released Friday. "As a result of this delay, the State has been severely handcuffed in its obligation to prosecute Mr. Jones for the murder of Leamon Grady."

Cassy Stubbs, the A.C.L.U. lawyer who represented Mr. Jones, said all of the witnesses from the initial trial were still living.

Mr. Jones was convicted of robbing and shooting Mr. Grady, a bootlegger in Duplin County. The main witness against Mr. Jones was a former girlfriend, Lovely Lorden, who testified that she had gone with him to Mr. Grady's house the night of the killing and heard gunshots while waiting outside.

State courts rejected Mr. Jones's claims of ineffective legal counsel. But a federal judge, Terrence W. Boyle, later found that Mr. Jones's trial lawyers failed to do a background check that would have revealed Ms. Lorden's criminal background, failed to interview her before trial and failed to obtain copies of inconsistent statements she made. They also failed to present evidence that Mr. Jones might be mentally ill, cognitively impaired, or had a history of substance abuse, the judge found, information that could have saved him from a death sentence.

"Jones received two appointed attorneys that spent virtually no time or effort investigating the offense or his background," Judge Boyle said.

In subsequent hearings and affidavits, it became clear that Ms. Lorden was a frequent police informant and that, contrary to testimony at the trial, she had known when she came forward in the Grady case that there was a $4,000 reward available.

Though Ms. Stubbs said that there was evidence that pointed to another man in the killing, Mr. Hudson said in a telephone interview that he considered the case closed.

Mr. Jones's release came on the heels of that of Glen E. Chapman, who was convicted of killing two women, Betty Jean Ramseur and Tenene Y. Conley, in Union County in 1992. Judge Robert C. Ervin of State Superior Court ruled in April that Mr. Chapman's lawyers had failed their client, noting that one of them could recall interviewing only one witness and had visited the crime scenes for the first time two weeks before trial. The lawyers had both admitted to heavy drinking during other trials.

Judge Ervin also found that Dennis Rhoney, then a police detective, knowingly presented false and misleading information on the stand. The State Bureau of Investigation is reviewing perjury claims against Mr. Rhoney.

© 2008 The New York Times

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