James T. Fisher, Jr. spent 26 ½ years in the custody of Oklahoma – most of it under sentence of death – without ever having a fair and reliable determination of whether he was guilty of any crime. Fisher, a black man, was convicted in 1983 of the murder of a white man based on the dubious testimony of the man originally charged with the murder. Nineteen years later, a federal court of appeals held that Fisher’s lawyer did not act as his advocate or as the state’s adversary, was “grossly inept,” and disloyal to his client by “exhibiting actual doubt and hostility toward his client’s case.” It set aside the conviction.
Oklahoma gave Fisher a second trial in 2005 at which he received virtually no representation from a lawyer who was drinking heavily and abusing cocaine. He was convicted and sentenced to death again. Four years later, the Oklahoma Court of Criminal Appeals held that Fisher had again been denied his right to counsel. This time it vacated the conviction because the prosecution’s case against Fisher was not very strong. Prosecutors agreed to Fisher’s release in July, 2010, provided that he be banished from Oklahoma forever.
If Fisher had been properly represented by competent counsel at his original trial in 1983, as the constitutions of United States and Oklahoma supposedly require, he probably would not have been found guilty and would not have spent a day on death row or even in prison. Instead, Fisher was condemned to death and suffered through years on death row with periods of 23-hour lock-downs and time in isolation cells. Oklahoma has done nothing about the injustice it inflicted upon Fisher and is providing no treatment for the post-traumatic stress that James Fisher will surely endure for the rest of his life, but instead banishes him to the rest of the world. It has compounded its failure to provide justice to James Fisher with its irresponsibility and carelessness.
Fisher was accused of the murder of Terry Neal, who was found dead in his apartment in downtown Oklahoma City on December 12, 1982, stabbed in the neck with a broken bottle. Police learned from various witnesses that Neal was a bisexual who occasionally solicited sex from men in a certain area of Oklahoma City. Their investigation led to the arrest of Fadjo Johnson, a baby-faced teenager who was seen getting into a car with Neal on the night of the murder. Johnson was initially charged with the murder.
Before long, however, the prosecution dropped the charges and Johnson became the prosecution’s key witness, claiming that a man named “James” had actually committed the murder. On this information, the police began investigating Fisher, who had been drifting around the South at the time of the murder. Fisher was arrested on January 10, 1983, in Buffalo, New York, and was extradited to Oklahoma for trial on the charges of first degree murder.
The prosecution relied almost exclusively on Johnson’s testimony in convicting Fisher. Johnson testified that he met Fisher on the night of December 11, 1982, in an area of downtown Oklahoma City that was known to be frequented by homosexual prostitutes. There, Neal picked both of them up and took them back to his apartment. Johnson claimed that he went into another room while Fisher and Neal had sex, but he came back in time to see Fisher hit Neal on the head with a wine bottle and stab him several times in the neck with the broken end of the bottle. Johnson testified that Fisher told Johnson to take Neal’s television, which they sold before Fisher dropped Johnson off near his house. The only other incriminating evidence against Fisher came from a Buffalo Police detective, who testified that, when Fisher was arrested in Buffalo, he said that he had hit “someone named Terry” over the head with a wine bottle, but had not killed him. The state had no physical evidence that linked Fisher to the crime.
The First Trial
Fisher was represented at his first trial by a lawyer who served in the state senate and, because of his legislative duties, only tried cases between the months of September and December. The lawyer, E. Melvin Porter, tried Fisher’s case and 24 others during September of 1983; he tried another capital murder case the week before Fisher’s trial. His caseload was so excessive that sometimes he would leave during deliberations in one case to begin trying another case. In addition to having no time to defend Fisher, Porter was prejudiced against him. He admitted years later that, at the time of the trial, “I thought homosexuals were among the worst people in the world.”
Porter called no witnesses at either the guilt or penalty phases of trial other than Fisher. He made no opening or closing statement at either phase. Porter said only nine wordsduring the entire sentencing phase of the trial. He presented no evidence in mitigation even though plenty was available – including the fact that Fisher was abandoned as a child, suffered at the hands of an abusive father, and was handed off to the New York State child-welfare system at 13.
On appeal, the Oklahoma Court of Criminal Appeals pronounced itself “deeply disturbed by defense counsel’s lack of participation and advocacy during the sentencing stage,” but not disturbed enough to reverse the conviction or sentence. It rejected a claim of ineffective assistance of counsel, holding that despite the incompetent representation, there was not a reasonable probability that without the errors by the lawyer the result of the proceeding would have been different. Fisher v. State, 739 P.2d 523, 524 (Okla.Crim.App.1987). Fisher’s conviction and death sentence were also upheld on the state post-conviction review. Fisher v. State, 845 P.2d 1272 (Okla.Crim.App.1992).
Federal Habeas Corpus Review
A federal district court, after conducting a hearing, found that Fisher received ineffective assistance of counsel at the sentencing phase of trial. However, the court held there was not a substantial probability that the outcome of the guilt phase would have been different even without the lawyer’s incompetence. Fisher and the State both appealed.
The Tenth Circuit Court of Appeals found a violation of the right to counsel that prejudiced Fisher at both phases and ordered a new trial. Fisher v. Gibson, 282 F.3d 1283 (10th Cir. 2002). It found Porter failed to investigate the case, was “grossly inept” in his conduct at trial, and disloyal to his client by “exhibiting actual doubt and hostility toward his client’s case.”
Because he had done no investigation, Porter did not expect that the Buffalo Police detective would testify at trial. Because he did not get his client’s statement to the detective, Porter failed to bring out critical parts of it. The prosecution introduced the part of the statement in which Fisher said that he had hit a man named Terry over the head with a wine bottle, but not the parts in which Fisher said that it happened in September or October, two months before the murder occurred, and that the man named Terry was black, not white like the victim. Porter did not ask about these inconsistencies during cross-examination. Instead, Porter bolstered the detective’s credibility by commenting on the fact that he had 37 years of experience as a police officer.
Porter had no idea what answers he was going to receive when he cross-examined the prosecution’s witnesses. The federal district court found that Porter’s cross-examinations “read more like first-time interviews conducted during discovery than the presentation of a defense at a capital murder trial.” As a result of “conducting an admittedly uninformed and therefore highly reckless ‘investigation’ during trial,” Porter elicited detrimental testimony that hurt his client.
For example, Porter elicited testimony on cross-examination of the Buffalo detective that the detective confiscated Fisher’s clothes and found bloodstains on Fisher’s jacket. He then failed to point out that the prosecution never linked this blood to the murder. Porter did the same with an Oklahoma City police officer. He brought out on cross-examiner of the officer that the officer found a bloody fingerprint in the victim’s car, even though he had just excluded this evidence on direct with a hearsay objection. Again, he did not point out that the prosecution never proved that it was Fisher’s fingerprint.
Porter testified at the hearing before the federal court that he thought homosexuals were the worst people in the world, that he harbored animosity toward his client, and that his feelings affected his representation. He also admitted that he resented Fisher’s refusal to accept a plea offer. He made no effort to conceal his distaste for his client and his lifestyle during trial.
Porter’s defense consisted solely of Fisher’s testimony, but Porter undermined his client as a witness. Fisher testified that he was in Coffeyville, Kansas, on the night of the murders. His testimony was supported by a letter from the Salvation Army in Coffeyville stating that Fisher stayed there on December 12, 1982. This letter was presented to the court at Fisher’s extradition hearing. Porter, however, did not make any attempts to obtain the letter or introduce those facts at Fisher’s trial. Instead, Porter repeatedly had Fisher testify that he had been in Oklahoma during December of 1982, and was uncertain about where he was at certain times.
Most of Porter’s direct examination of Fisher consisted of repeatedly asking Fisher if the state’s evidence was true; this method of question made it appear to the jury as though Porter was badgering Fisher to get him to change his story, or that Fisher was lying and Porter was trying to establish that he should not be trusted. Porter even asked Fisher if he had ever had sex with a man. In badgering his client, Porter elicited damaging, irrelevant, and prejudicial testimony from him. Porter’s direct examination resembled “a police interrogation of a hostile suspect rather than the presentation of a defense.” He managed to establish not only that Fisher had been discharged from the army for possession of marijuana, but also that he was carrying marijuana and a narcotic syringe when he was arrested in Buffalo. He then demanded that Fisher raise his sleeves so that he could see if he had track marks on his arms (which he did not).
Porter’s treatment of the state’s primary witness against his client, Fadjo Johnson, contrasted sharply with his treatment of his own client. Although the case basically rested on Fisher’s word against Johnson’s, attorney Porter indicated several times that he believed what Johnson was saying and even sympathized with him for witnessing such a horrible crime. Although Johnson admitted in his direct testimony that he had been charged with the murder, Porter failed to call attention to his admission on cross-examination. Later, when a police officer denied that Johnson had ever been charged with the murder, Porter did not challenge the assertion. He did not even ask Johnson whether he agreed to testify in exchange for the state dropping the charges. The Court found “no strategic reason for failing to document the fact that a key state witness had originally been charged in the murder and therefore had a motive to exonerate himself by accusing the defendant.” Nor did Porter bring out that Johnson’s trial testimony was contradicted by a statement Johnson made to his principal – that he had sex with Neal and did not see Fisher stabbing Neal.
While he berated his own client relentlessly about his homosexuality and drug use, Porter was sympathetic towards Johnson, the witness against his client, on those subjects. Porter even asked if Johnson wanted to receive counseling to help “straighten his life out.” Porter waived closing argument even though it would have provided him an opportunity to call attention to the deficiencies in the state’s case. The Tenth Circuit Court of Appeals found that Porter’s decision to waive closing arguments reflected a desire by Porter “to save himself personal embarrassment rather than a desire to act in the best interests of his client.” Moreover, Porter’s waiver of closing reinforced the impression that he thought his client was guilty and that his defense was hopeless. Because Porter did not act as his client’s advocate or as the state’s adversary, the Court found that his performance was deficient.
The federal Court of Appeals also found that there was a reasonable probability that the jury’s decision would have been different if Porter had provided effective assistance. In a case about credibility, Porter undermined his client’s credibility and bolstered the credibility of the state’s witnesses. The jury probably assumed that Porter did not put on a case because Fisher had no case to present. Accordingly, the Court set aside Fisher’s conviction.
By this time, Fisher had spent 19 years on death row. During that time, he had been on 23-hour lock-down, and had often been put in disciplinary isolation cells as a result of his various untreated emotional problems.
The Second Trial
In April of 2005 – more than 22 years after the murder of Terry Neal – the State tried Fisher for capital murder yet again. This time Fisher was assigned a lawyer, Johnny Albert, who was drinking heavily and abusing cocaine while he was trying Fisher’s case. Albert’s colleagues testified that he was “neglectful of his cases,” and spent “less time working on cases and more time drinking beer and playing pool during work hours.” He missed court appearances and avoided clients. Albert physically threatened Fisher at a pre-trial hearing, and as a result, Fisher refused to attend his own trial.
Albert barely used the eighteen boxes of documents he had been given from the first trial; in fact, he had the boxes moved to a storage shed in his law partner’s back yard. He failed to investigate the case, even though an investigator who had been assigned to work on the case repeatedly tried to contact him. He did not try to find defense witnesses or interview the prosecution’s witnesses before the trial. He did not review the physical evidence or contest its validity during trial. He did not present exculpatory evidence, such as the fact that two witnesses told the police that, while two men got into the victim’s car, the older man got out of the car and the victim drove off with the “baby-faced” male. He did not bring up Fadjo Johnson’s prior criminal record, which included assault and battery on a guard at the Children’s Center in Taft. He did not bring out that Johnson fled to Houston after he was questioned and released by the police. He did not bring out the fact that Johnson stated in an earlier affidavit that Fisher rebuked Neal’s sexual advances. Albert failed to request jury instructions on the lesser crimes of manslaughter and second degree murder, or on the defense of voluntary intoxication. Not surprisingly, the jury convicted Fisher and sentenced him to death.
On appeal, the Court of Criminal Appeals ordered the District Court of Oklahoma County to conduct a hearing on whether Fisher received ineffective assistance of counsel. The district court found that Fisher had been denied the right to effective assistance during both the guilt and penalty phases of his trial and recommended that his case be reversed. The Court of Criminal Appeals agreed with the findings of the district court, and reversed and remanded the case for a new trial. It found that Albert neglected to “establish a trust relationship” with Fisher and failed to properly investigate and present relevant evidence at the trial. Fisher v. State, 206 P.3d 607 (Okla. Crim. App. 2009). This time, the Court held that Fisher was prejudiced by his counsel’s deficient performance because the state’s case was not very strong.
The prosecution’s case against Fisher was so weak that it was willing to let him go. But instead of dismissing the case against Fisher, the prosecutors proceeded as if going to trial a third time. They agreed to Fisher’s release only if would plead guilty to first degree murder and agree to be banished from Oklahoma. Fisher entered the plea in July 2010, and was sentenced to life imprisonment without parole, which was suspended. He was placed on probation for the rest of his life with the condition that he never return to Oklahoma. First Assistant District Attorney Scott Rowland admitted to the Oklahoma Gazette that “if he had been convicted and sentenced to life in 1983, he would probably have been out in 15 years.” Of course, if James T. Fisher, Jr. had been properly represented by competent counsel at his original trial in 1983, he probably would not have been found guilty and would not have spent a day on death row or even in prison. Instead, Fisher was condemned to die and suffered through years on death row with periods 23-hour lock-down and isolation cells. Oklahoma has done nothing about the injustice it inflicted upon him and provides no treatment for the post-traumatic stress that he will surely endure for the rest of his life, but instead banishes him to the rest of the world.
Throughout it all, Fisher maintained his innocence, saying that he was not even in Oklahoma the day of the crime.
See also Dan Barry, In the Rearview Mirror, Oklahoma and Death Row, New York Times, August 10, 2010.