Everyday Injustice

Lawyers miss statutes of limitations, denying their clients any federal review of their cases.   People sentenced to death in Alabama, Florida and Texas have had no federal review of their cases because the lawyers they were assigned miss the statute of limitations for filing.  In Florida, lawyers have missed the statute of limitations in 33 death penalty cases, depriving their clients of federal habeas corpus review of their cases.  Lugo v. Secretary, 750 F.3d 1198 (11th Cir. 2014) (Martin, J., concurring).

Johnny Ray Johnson was put to death in February, 2009, after his lawyer, Jerome Godinich, missed the filing deadline by one day.

Johnny Ray Johnson was put to death in February, 2009, after his lawyer, Jerome Godinich, missed the filing deadline by one day.

Nine people in Texas, six of whom have been executed, were denied review because lawyers missed the statute of limitations for filing. Most remarkably, three people who were denied review due to the same lawyer, Jerome Godinich, missing the statute of limitations in their cases. They were three of at least 21 clients in capital cases Godinich was appointed to represent, and among 1,638 cases involving 1,400 different defendants he was assigned from 2006 to March 2009. The Texas bar and the Texas Court of Criminal Appeals took no action after Godinich missed the statute of limitations the first time, or the second, or even the third to keep him from representing anyone else. He handles an average of 360 felony cases a year, including some capital cases. See Lise Olsen, Lawyers’ Late Filings Can Be Deadly for Inmates, Houston Chronicle, Mar. 22, 2009; Lise Olsen, Death Row Lawyers Get Paid While Messing Up, Houston Chronicle, Apr. 20, 2009, at A1

People spent time in jail due to incompetence of jailers and police.  Kenneth Williams, a 60-year old disabled Army veteran with memory and mental problems, spent almost a year of his life in jail and a mental hospital because of errors by jailers. Williams, was arrested and booked into the Fulton County Jail in Atlanta charged with criminal trespass on January 4, 2011. Three days later, another man was booked into the jail on a felony charge of possession of heroin and three misdemeanor drug charges. Williams was released on January 20, ten days after arriving at the jail. But while he was there, his records were mixed up with other man who came in three days later. As a result, Williams was arrested three times on warrants meant for the other man. The first two times, Williams spent 13 days in jail. The third time, March 7, 2013, Williams was locked up in the jail for seven months and then sent to a state mental hospital because the court treated his insistence that he was not the man accused of the crimes as a lack of mental competency to stand trial. He was forcibly medicated with anti-psychotic medication to make him competent.

Remarkably, while Williams in jail on the other person’s charges, the other person was arrested and taken to the jail and released twice.

Finally, a social worker noticed that Williams was already in jail when the crimes were committed by the other person. A fingerprint comparison was ordered and William was released in February 2014. He had lost his driver’s license and his veterans and Social Security benefits while in jail. The drug charges and aliases of the other man remain a part of his records. See Rhonda Cook, Mistaken ID leads to jail, mental hospital for veteran, Atlanta Journal-Constitution, July 18, 2014.

Teresa Culpepper was arrested by mistake by Atlanta police and held in jail for 53 days.  Culpepper called police on August 21, 2011 to report that her truck had been taken from in front of her home.  The police arrested her for an aggravated assault allegedly committed by another woman named Teresa.  “Her birth date didn’t match. Her address didn’t match. Her description didn’t match. Other than the name Teresa, nothing matched,” said Culpepper’s attorney, Ashleigh Merchant.  The media tracked down the Teresa actually wanted by police, who had not been arrested for the offense.  Culpepper finally was released October 12 after her public defender got the victim to come to court and say that Ms. Culpepper was not the attacker.

Man Convicted of Armed Robbery was in Jail When Crime Occurred.  LaDondrell Montgomery was convicted of armed robbery and sentenced to life in prison in Houston in November, 2011.  A week after the verdict, it was discovered that he had been in jail at the time of the crime in December, 2009.  “It boggles the mind that neither side knew about this during trial,” State District Judge Mark Kent Ellis said at a hearing, according to the Houston Chronicle. “Both sides in this case were spectacularly incompetent.”  The judge personally apologized to Montgomery.

Racial Discrimination in Stops and Frisks in New York.   After and order by a federal court and the settlement of the case once Mayor Bill de Blasio took office, the New York Police Department practices with regard to stopping and frisking people were modified. The practices had been a source of great controversy and bad feelings for years. The New York police stopped and patted down more than 600,000 people in 2011; 84 percent of those stopped were blacks or Latinos.  They stopped nearly three million people between 2004 through 2009.  Blacks were nine times more likely than whites to be stopped.  Nearly 90 percent of the people stopped were completely innocent of any wrongdoing.  Officers were 14 percent more likely use force – such as throwing people on the ground or against a wall, drawing a weapon and/or pointing a weapon at the person stopped, and using manual force, a baton, handcuffs, or pepper spray during the stop – in stops of blacks compared to whites, and 9.3 percent more likely in stops of Latinos.  Blacks and Latinos were more likely to be arrested rather than issued a summons when compared to white suspects who are accused of the same crimes.   For more information, click here.

Racial Discrimination in Marijuana Arrests in Atlanta and Austin.  Ninety-three percent of all marijuana possession arrests in Atlanta in 2011 were African-Americans, and 7 percent were white. The city’s population is 54 percent African-American and 38 percent white, according to a study by WSB-TV.  In Austin, Texas, 28.1% of petty marijuana cases were against blacks, even though they make up 8.1% of Austin’s population. Marijuana cases increased by 69% in Austin from 2007 to 2010.

Meet ’em and plead ’em in California.  A lawyer who contracts with Fresno County, California, to provide representation to poor people accused of crimes explained that he is able to hand a very high volume of cases – several times the maximum allowed under the American Bar Association and other standards – because he pleads 70% of the defendants guilty at the first court appearance after spending only about 30 seconds with each defendant to explain the prosecutor’s plea offer.  Laurence A. Benner, The Presumption of Guilt: Systemic Factors that Contribute to Ineffective Assistance of Counsel in California, 45 Cal. Western Law Review 263 (2009).

Meet ’em and plead ’em in Georgia.  In a typical occurrence, nine men and a woman stood in a row in a courtroom in the jail in Cordele, Georgia, and plead guilty in August, 2011 to various charges at the same time.  Seven were black and three were white.  One man faced a minor charge, but the others faced sentences ranging from five to 21 years, as well as fines.  Nine were represented by the public defender who stood at the end of the row.  The prosecutor stood at the other end.  After the group entered guilty pleas, the prosecutors recommended a sentence for each person.  The public defender responded by asking the judge to assess a $50 “application fee” which Georgia requires from people represented by a public defender.

The public defender knew nothing about the charges because the prosecutors had not provided police reports or any other information.  Nevertheless, three lawyers and an investigator from the public defender office told their clients about the plea offers from the prosecutor and, moments later, the clients entered guilty pleas and were sentenced.   The nine clients at the jail were among those who decided to accept the offers and plead guilty that day.  Two of them had just become clients of the public defender moments earlier, as had two people who entered pleas with another group at the courthouse earlier in the day.  The three lawyers and one investigator in the public defender office have an impossible task in trying to provide representation for all the poor people in the four-county judicial district that includes Cordele.  They must deal with seven prosecutors, who rely on law enforcement agencies from the state as well as the four counties.


Denial of a lawyer promptly after arrest.  Every day, poor people are arrested and jailed based on accusations ranging from loitering and jaywalking to robbery and murder.  However, unlike wealthy people who usually retain a lawyer the same day they get to jail and are out in a matter of hours, many poor people do not see a lawyer for weeks or months.  Without a lawyer, they are not able to apply for release or bond pending trial.  As a result, they may lose their jobs, their homes and means of transportation.  They and their families may become homeless.  Some people detained will be unable to maintain child support payments (for which they will be arrested and jailed) or other obligations.  A few examples:

  • Jacqueline Winbrone, the sole caretaker of her husband, who needed transportation to dialysis treatment several times per week, was arrested in New York in September, 2007 after a firearm was found in the family car.  Bail was set at $10,000.  Ms. Winbrone unsuccessfully attempted to get a court-appointed attorney to seek a bail reduction so she could care for her husband.  Days later, Ms. Winbrone’s husband died and, still unable to contact an attorney, she was unable to attend the funeral.  In early November 2007, after writing to the court and contacting a prisoners’ rights organization, Ms. Winbrone was released on her own recognizance – her personal promise to return to court.  Ultimately, the charge against her was dismissed.  Hurrell-Harring v. State, 66 A.D.3d 84, 98 n. 3, 883 N.Y.S.2d 349, 360 n. 3 (N.Y. App. Div. 2009) (Peters, P.J., dissenting), modified, 930 N.E.2d 217 (N.Y. App. 2010) (a challenge to the legal representation provided to poor people accused of crimes in Washington, Onondaga, Ontario, Schuyler and Suffolk counties, New York).
  • Najah Briggs was arrested for trying to pay for his groceries with a $100 bill at lunch time at a grocery store near his home in Clayton County, Georgia on August 19, 2009.  Store employees and the police thought the bill was counterfeit. Briggs was handcuffed and taken away to jail, while other customers watched in disbelief and horror.  Briggs was charged with first degree forgery and spent 31 hours in the Clayton County jail. Nine days after the arrest, the Secret Service confirmed that the bill was genuine. The charges were dropped November 4. By the time he was cleared, Briggs had lost his job as a private security officer with a company because of the arrest.  Briggs was later rehired, but because he had lost his seniority when he was fired, he received a lower wage and was a contract employee.  The contract later expired and he lost his job again due to the arrest.  Two and a half years later, Briggs won a $500,000 verdict against the grocery store.

Trial by polygraph in Texas.   The Texas Court of Criminal Appeals has upheld the revocation of probation based solely on polygraph results – universally seen by courts as insufficiently reliable to be admitted – despite its opinion in 1990 that polygraph results were inadmissible “for all purposes” in criminal cases.  William Thomas Leonard was within six months of completing a five-year probation term that required him to receive sex offender therapy.  Leonard had faithfully attended the required meetings, participated in group therapy, and fulfilled all other terms and conditions of the treatment program, but he failed polygraph tests, which were required as part of his treatment.   The trial court revoked his probation and sentenced him to seven years in prison.  In a 5-4 decision, the Court of Criminal Appeals upheld testimony by his therapist about the polygraph results because polygraph results are “reasonably relied upon by experts in sex offender psychotherapy.”  Judge Cochran, writing for the four dissenting judges, pointed out that the holding permits “not only ‘revocation by polygraph’ but also ‘revocation by an expert’s reliance on unreliable science.'”  She also pointed out that the State presented nothing with regard to the reliability of the polygraph results:

There was no testimony about: who administered these polygraph exams; that person’s qualifications, experience, or level of expertise; what the precise questions were; what appellant’s answers were; how the test was conducted; how the test was scored; what type of polygraph test was administered; how the polygraph operator distinguished a “deceptive” answer from a “truthful” one; or anything else concerning the science of polygraphy or the reliability of these particular polygraph tests.

William Thomas Leonard v. State, (Tex. Crim. App. No. PD-0551-10, Mar. 7, 2012).  See also Chuck Lindell, Appeals court allows polygraph evidence, in limited way, Austin American-Statesman, March 7, 2012

Plea for time served to get out of jail limits jobs and nursing school.  Ester Hewitt was 22 when police officers came knocking on the door of her home in Galveston County, Texas, looking for her roommate.  Scared and confused, Hewitt told police they could not enter her house without a warrant.  She did not want them to wake up her one-year old daughter who was asleep in the house.  The police stormed the house anyway.  Hewitt grabbed her daughter and ran outside.  She was charged with hindering apprehension and thrown in jail.  After spending 30 days in jail, she pleaded no contest to the crime in exchange for time-served as her punishment.

Hewitt was one of many people who probably are not guilty of anything but plead guilty to get out of jail.  But with the criminal conviction on her record, she had difficulty finding a decent job and worked three jobs to support her family.  Hewitt enrolled in a nursing program at San Jacinto College, but was allowed to take many of the advanced classes because the college does not permit people with criminal convictions to take the courses.  Hewitt’s story has a better ending than most.  She applied for a pardon in October 2011 and she received one of just 14 pardons issued by Gov. Rick Perry in December 2012.

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