Robert Holsey was executed by Georgia on December 9, 2014, even though he was represented at his capital trial by a lawyer who drank a quart of vodka every night of trial while preparing to be sued, criminally prosecuted, and disbarred for stealing client funds. He failed to present evidence that his intellectually disabled client was, as summarized by dissenting Judge Rosemary Barkett, “subjected to abuse so severe, so frequent, and so notorious that his neighbors called his childhood home ‘the Torture Chamber.’” The jury heard only that a report listed Holsey as “borderline mentally retarded,” but the lawyer did not present any testimony to explain what that meant and the extent and consequences of Holsey’s intellectual disability. An excellent account of the case is provided by Marc Bookman in This Man’s Alcoholic Lawyer Botched His Case. Georgia Executed Him Last Night Anyway published in Mother Jones.
A Georgia trial judge, after hearing testimony presented at a post-trial hearing about the lawyer and the evidence that was not presented at trial, ruled that “no one can seriously believe that [Holsey] received the constitutional guarantees of the Sixth Amendment right to effective assistance of counsel” and granted Holsey a new sentencing hearing. Nevertheless, the Georgia Supreme Court reversed the trial judge, holding that the new evidence was “largely cumulative” even through almost no evidence of childhood abuse and mental retardation was presented in Holsey’s trial. Schofield v. Holsey, 642 S.E.2d 56 (Ga. 2007).
The Court of Appeals for the Eleventh Circuit – which in an earlier era would have corrected such a gross injustice – affirmed Holsey’s death sentence in a 2-1 decision, based on the view of two members of the Court that it was required by habeas corpus law to defer to the decision of the Georgia Supreme Court with regard to that court’s guess that the new evidence would not have made a difference at Holsey’s trial. Holsey v. Warden, 694 F.3d 1230 (11th Cir. 2012). Judge Barkett dissented, arguing that the Georgia Supreme Court’s opinion was based on an unreasonable determination of the facts and that if the evidence of Holsey’s horrific childhood and intellectual disability had been presented to the jury, it was probable that at least one juror would have voted for a sentence less than death.
The United States Supreme Court once held that “[t]he right to the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 76 (1942). But it abandoned that position in 1984 and required defendants claiming denial of their right to counsel to show not only that their lawyers were incompetent, but that because of the incompetence there was a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The second step – which requires judges to guess whether the outcome would have been different is impossible since appellate judges do not see the witnesses at trial or in post-conviction proceedings and cannot possibly divine what influenced jurors in making their decision.
Moreover, the Congress and the Court have since 1996 required federal judges in habeas corpus proceedings to be exceptionally deferential to the decisions of elected state court judges. The Antiterrorism and Effective Death Penalty Act, signed into law by President Clinton on April 24, 1996, provides, among other things, that habeas relief may not be granted “unless the state court’s decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d) (1). The Supreme Court has said that a “state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree” on the correctness of the state court’s decision.’” Harrington v. Richter, 562 U.S. __, 131 S.Ct. 770, 786 (2011). The Court added, “If this standard is difficult to meet, that is because it was meant to be.”
This difficult standard allows federal judges to shrug their shoulders at all sorts of ineptitude and gross incompetence in the representation of poor people accused of crimes. As discussed elsewhere on this site, courts have upheld convictions and death sentences even in cases where lawyers were drunk, asleep, under the influence of drugs and failed their clients in less dramatic ways. The constitutional guarantees of counsel and equal justice continue to be violated every day.