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Almost alone among the states, Alabama doesn’t provide lawyers for condemned inmates at a crucial late stage of their bid for life. The result, according to critics, is that legitimate claims can go unheard, and post-conviction petitions are generally denied on procedural grounds-an action that ends their effort in state courts and blocks the route to the federal courts. Examples are numerous, because Alabama makes liberal use of the death penalty. Since 1998, it has sentenced more people to death per capita than any other state. One hundred ninety-four are presently on death row, about 30 without counsel. How the system works is illustrated by the case of Anthony Tyson, a small-time criminal from Tuskegee, Ala., whose conviction for the murder of two drug dealers six years ago did not attract much attention. Like every other state, Alabama offers the condemned a last chance in the courts, the collateral post-conviction process that follows unsuccessful appeals. It’s the process by which courts look beyond the possibility of trial judge error to matters such as the competency of the trial and appellate lawyers. Alabama’s system is unique except for Georgia’s in not providing counsel for those convicted of capital crimes to file post-conviction petitions after their direct appeals are exhausted. These petitions typically require intense investigation of potential claims that are outside of the trial record, investigations that can’t be conducted from inside a prison. They require expert knowledge of substantive criminal law and often arcane criminal procedure. In Alabama, the petitions must present all legal claims and all supporting factual evidence sufficient to survive a motion to dismiss. Alabama petitions, unlike those of some states, cannot be amended later to state new claims after a one-year statute of limitations that starts with a failed appeal. If history is a judge, it is likely that Tyson’s petition will be found procedurally defective, as the state has already said it is, and his claims will never be heard. If that happens, the federal courts won’t hear his claims either because of federal procedural rules. Now Tyson has a federal habeas lawyer, Bryan Stevenson, director of the Equal Justice Initiative of Alabama (EJI). Stevenson said Alabama’s post-conviction process is so stacked against Tyson that at one point he took the unusual step of asking a federal court to let Tyson bypass the state process altogether. He was rebuffed. Tyson v. Campbell, No. 02-A-1159-E (M.D. Ala. 2003). “If we’re going to have a death penalty, an accused deserves a genuine opportunity to demonstrate . . . why he or she doesn’t deserve to be executed,” Stevenson said. Alabama Attorney General William Pryor, who has been nominated for a seat on the 11th U.S. Circuit Court of Appeals, has been a vociferous defender of the state’s system. “For those inmates who do not have reasonable ground to seek collateral review of their sentence, they do not need a lawyer,” Pryor wrote in 2001 to the U.S. Senate Judiciary Committee, which was investigating the competency of counsel in death penalty cases. Crime and investigation Tyson, now 31, emerges in court documents and others’ accounts as a sometimes violent hoodlum with a prior conviction for manslaughter. The double murder for which he was convicted happened on a winter evening in 1997, reconstructed here from the trial transcript. It started with a cocaine dealer named Derek Cowan, 24, in the driver’s seat of a green Acura. Riding shotgun was a friend, Damian Thompson, 18. Someone they both knew, maybe Tyson, sat in the back seat as they drove out of Tuskegee to sell cocaine. A few miles out of town they pulled onto a dirt road and parked. A car pulled in next to them driven by Cornelius Drisker, known as D-Rock. He was unexpected, but no stranger to Cowan. Then the customer Cowan was expecting, Alphonso Cardwell, pulled up. Cowan had sold him drugs in the same spot earlier that day. Both D-Rock and Cardwell later claimed to have left first, Cardwell after paying Cowan $300 for cocaine. The men agreed on one thing: A man was in the back. With both of them gone, someone-presumably the passenger-shot Cowan and Thompson in the head with a .380-caliber pistol. The killer drove off after shoving Cowan’s body out of the car. A passerby saw Cowan on the road. Another saw an Acura back out of the roadside bushes and depart. He followed in his car, thinking it was involved in a hit-and-run, but lost sight of it. Later, in Tuskegee, someone found the Acura, its engine running and Thompson’s body on the passenger side. The investigation quickly led to the buyer. Cardwell was interviewed a few days after the killings and was shown two photo spreads, each containing six pictures of black men. Asked to pick the man in the back seat, he picked Tyson, investigators said, although they didn’t make any notation of this fact on the Tuskegee Police Department form accompanying the photo spreads. Days later, coincidentally, Tyson was identified as one of several participants in a gunfight in Union Springs, Ala. No one was hurt, but officers recovered shells, some from a .380. On Jan. 17, about two weeks after the murders, a search warrant was issued for Tyson’s apartment based on Cardwell’s I.D. Tyson wasn’t there. Three other men were. One of them pointed a shotgun at the police, then dropped it and ran into the bedroom. He threw himself on the bed and was reaching for a gun under the mattress when the police seized him. Through ballistics tests, it was identified as one of the weapons in the Union Springs incident. It was also identified as the gun used in the murders of the drug dealers. Besides the gun, officers seized a pair of tennis shoes that prosecutors said were stained with the younger victim’s blood. Tyson was charged. The evidence against him: the shoes, the gun and Cardwell’s identification of him as the man in the back seat. The trial Tyson was represented by Montgomery, Ala., solo practitioner Thomas Goggans. He was an experienced litigator in capital cases, but Tyson complained that he never came to see him. Before the trial, he asked Circuit Judge Philip Dale Segrest to appoint a new lawyer. Segrest called Tyson a “belly-acher” and said “beggars can’t be choosers.” He said Tyson had a fine attorney. Goggans added fellow Montgomery solo practitioner Andrew Skier, a relative neophyte, to the defense team, telling the judge that he was overloaded with death penalty cases. Cardwell and Drisker (“D-Rock”) both testified. Cardwell was the only witness who placed Tyson in the car. The transcript is unclear on several key points, and lawyers for neither side would be interviewed for this story. For instance, it isn’t clear whether either witness knew Tyson. One thing that is clear is that they knew each other and that they had a fight on the night of the murders. Cardwell testified that he ran into Drisker at a club an hour or so after the bodies were found, and Drisker asked him who the murderer was. “At that moment,” Cardwell testified, he couldn’t remember who was in the car. Drisker beat him senseless while a third held a gun to his head, he said. He spent two nights in a hospital. “They were trying to convince me that I needed to come up with the third person in the car,” Cardwell said in response to Judge Segrest’s question. After Drisker and Cardwell testified, Segrest told the lawyers outside the jury’s presence, “My intuition makes me extremely uncomfortable with D-Rock. I don’t want to see him getting people knocked off during the course of the trial . . . .I’m concerned that D-Rock might be as deeply involved in this whole thing as anybody . . . .He may be the kingpin in the whole operation.” When the trial resumed, however, Drisker’s name never came up again. Cardwell had been shown the police photos days after he left the hospital. Defense counsel challenged neither his identification of Tyson nor the photo lineup, although Tuskegee police procedures require that the pictures be of people with similar appearances and the photos in the spread clearly were not. Tyson asked to cross-examine witnesses personally. He argued that his lawyers hadn’t established that it had been dark when Cardwell claimed to have seen him in the back seat of the car on the country road. Segrest said he wouldn’t let Tyson inject error into the record by allowing him to question witnesses. “If you get sentenced to death, you’re going to sit in the yellow mama,” the nickname for Alabama’s electric chair, the judge said. One of the circumstances that allowed the murders to be charged as a capital crime was the fact that Caldwell testified that he had paid $300 for the drugs. When Cowan’s body was found, the front pocket of his jeans had been turned out and was empty. In mid-trial, away from the jury, the judge called the state’s evidence of a robbery “as weak as ‘tater water.” The defense, however, didn’t raise the possibility that the money might not have existed or that someone else might have taken it. Nor did it object when Segrest allowed the robbery charge to go to the jury. The other basis for a capital charge was that Tyson had killed the men as part of a plan. No evidence of a plan or scheme was introduced, just the facts of two murders and the empty pocket. Acquaintances of Tyson’s testified that the gun was his. This wasn’t challenged on cross-examination. Nor was the state’s ballistics expert cross-examined. The defense didn’t retest the blood on the sneakers found in Tyson’s apartment, said to match Thompson’s DNA. In pretrial hearings, the judge lambasted defense counsel for waiting until two weeks before the August 1998 trial to request a DNA sample. The defense had been on notice since March that there was DNA evidence, Segrest railed. When the defense hired a lab to test the DNA, the lab received an empty package from the state. The prosecution later admitted that there was no DNA left to test. The judge was furious. He offered to give the jury a limiting instruction on the weight they should give the DNA evidence. No such instruction was requested or given. Nor did the defense let the jury know that it had no sample to test. Other than the fact that the sneakers were found in Tyson’s apartment, the prosecution introduced no evidence that the sneakers belonged to him. The defense didn’t challenge that assertion. Tyson was found guilty of both murders. Penalty phase and appeal Next the jury turned to weighing the aggravating and mitigating factors to decide whether to impose a death sentence. The statutory aggravating factors argued by Tyson’s prosecutors were that the double murder was committed in a robbery, that Tyson had pleaded guilty to manslaughter in 1993 and that he had prior convictions for attempted murder and shooting into an occupied dwelling. Death penalty defense lawyers are legally required to search diligently for evidence of mitigation. They sometimes hire experts for this work, which includes searching the defendant’s psycho-social background for evidence to explain his violence, and assessing whether he’d be a danger to other inmates in a maximum security prison. No such expert was requested or hired for Tyson. The defense put on two witnesses to give evidence of mitigation. The mother of a friend Tyson grew up with testified that he and her son had gone to church together and played ball, and that Tyson was a pleasant child. Tyson’s mother testified that she loved him, although she had voluntarily surrendered custody of him to Tyson’s father when he was 5. Without a defense request, the judge had authorized $2,500 for psychological testing. Whether any of the money was spent is not known, but no psychological evidence was offered. In a closing argument that took about three minutes to read aloud, Goggans told jurors, “There are some aggravating circumstances. Sure there are. But there are also mitigating circumstances . . . .You heard from the mother of one of his long-time friends about how they played together and went to church together. You’ve heard that he grew up pretty much like a lot of other folks did. Ordinary-type folks that we all know . . . . “Weigh everything. And, when you do, I hope that you will find that it’s not one of the few cases for the death penalty.” The jury returned a 10-2 recommendation for death, the minimum required. As is required in a capital case, Tyson’s conviction was appealed. He was again represented by Goggans. The appeal challenged the search warrant and the court’s refusal to include a jury instruction noting that the victims were drug dealers. It challenged Segrest’s decision to cut off a lengthy defense cross-examination of the state’s DNA expert that dealt with what Segrest called irrelevant population subgroups. The appeal was denied. Tyson’s next step was to file the post-conviction petition in which he could attack his conviction by citing errors that didn’t appear in the trial court transcripts. These so-called collateral claims must first be raised in state trial and appellate courts. If the state courts rule against a petitioner on the merits of the claims, they may then be raised in federal court on the ground that the state court had misapplied established federal law. Rules of procedure If a state doesn’t rule on the substantive claims but dismisses the petition on procedural grounds, a federal court is unlikely to consider the substantive claims at all. That is because of the federal procedural default doctrine and because the petitioner had failed to exhaust state remedies. So it is possible for a person to be executed without any court having heard what might be legitimate claims, such as the ineffectiveness of trial counsel. That’s often the case, said John Carroll, who, as a federal magistrate judge in Montgomery, Ala., reviewed habeas petitions for district court judges for 14 years. “Most were procedurally defaulted for failing to follow state procedures,” said Carroll, now dean of Samford University Cumberland School of Law in Birmingham. “It was frustrating to see a meritorious claim you couldn’t do anything with.” There is no constitutional right to an attorney in state collateral post-conviction proceedings. For federal habeas petitions, the government provides counsel by law. Lacking a lawyer for the final state round, Tyson technically filed his petition pro se. He had assistance, however, from the EJI, which tries, less and less successfully, Stevenson said, to find attorneys for every inmate on death row. Law student help While Tyson didn’t get a lawyer, he did get two law students to help him, Violeta Chapin and Brittany Glidden, both in their third year at New York University, who were doing a clinical semester in the Capital Defender Clinic-Alabama. Eight students are admitted into the clinical program each year. They are divided into four pairs. Each pair is assigned a case during three weeks of classroom work at NYU. Chapin and Glidden went to Alabama in the fall of 2002 for their eight-week stint, which included several hours a week of case discussions with EJI staff and simulated interviews with clients and witnesses. “We had never done anything like this before,” said Chapin, now a Washington public defender representing juveniles. “We had no investigative skills and no experience with litigation, let alone capital litigation.” The students could spend only seven hours over three days with Tyson because of the visitation rules at Holman Prison, Chapin said. On May 17, 2002, with less than four days remaining before his one-year federal statute of limitations was to expire, Tyson’s petition was filed in Macon County Circuit Court under Rule 32 of the Alabama Rules of Criminal Procedure. It tolled the federal clock. Tyson v. Alabama, No. CC-94-54 (Macon Co., Ala. Cir. Ct.). The petition, written by the students and heavily edited by EJI staff, alleged that he was innocent and that his trial counsel had been ineffective. It said that among issues not raised by his counsel were that: The bloody sneakers are not his size. They are size 12; he wears a 10 1/2. The prosecution used all 12 of its peremptory jury challenges to exclude African-Americans. Several state witnesses, including those who identified the murder weapon as being owned by Tyson, were facing criminal charges for which they were not prosecuted after they testified. The substance of their deals with the prosecution was not disclosed to the defense. They and other witnesses had criminal records, but the defense made no attempt to impeach them. Several people lived with Tyson, and many others stayed there, all of whom had access to the murder weapon and any of whom could have owned the tennis shoes. A dozen people were willing to testify that Tyson had been physically and emotionally abused as a child, and abandoned by his parents. Tyson’s mother was an alcoholic who was physically and emotionally abused in his presence. She was diagnosed as a paranoid schizophrenic and had attempted suicide. Many of Tyson’s teachers, his high school football coach, principal and others wanted to testify on his behalf. Tyson’s girlfriend and sisters sat outside the courtroom waiting to be called but never were. “We weren’t able to do everything that needed to be done for Anthony, what a competent lawyer could do,” said Chapin. “His petition could have been better. We did the best we could.” Death penalty defenders say that what’s necessary are intense investigations that look for, among other issues, evidence that could have mitigated the sentence of death had it been presented at trial, evidence of prosecutorial and juror misconduct, of actual innocence, of racial inequities, of false testimony and of ineffectiveness of counsel. “You can’t conduct that kind of investigation unless you are well trained, know what to look for and how to find it,” Stevenson said. “And you certainly cannot conduct that kind of factual investigation from death row.” Clay Crenshaw, chief of the capital litigation division of the Alabama attorney general’s office, disagrees. “The inmate himself would know what evidence could and should have been presented at the guilt or penalty phase,” Crenshaw said. “Say if he has an alibi that he told his lawyer about, but his lawyer didn’t raise it. I’ve seen that happen.” The state is urging that Tyson’s petition be dismissed in the state court on procedural grounds. In a brief, the state says that the claims raised in Tyson’s petition should have been raised at trial or on direct appeal but weren’t, and that Tyson’s petition was not sufficiently specific. Tyson, through EJI, asked a federal court in October 2002 to let him skip the state process. Judge Mark Fuller denied his petition. An appeal was dismissed by the 11th Circuit. In September, EJI filed a petition for certiorari in the U.S. Supreme Court that is pending, No. 03-6705. Although the law doesn’t require it, Alabama appointed Tyson a lawyer for his state petition while the federal district court motion was pending. EJI’s Stevenson called the appointment a “disingenuous diversionary tactic by the state that is still pressing to have Tyson’s pro se petition dismissed, which would of course make appointment of counsel moot.” New lawyer Montgomery solo practitioner Jerry Blevins is the attorney the state appointed for Tyson. Blevins, who under Alabama rules will be paid a maximum of $2,000 for his work, has met with Tyson and has read the trial transcripts. He is critical of Goggans’ work at the trial, but said Tyson is unrealistic in wanting to pursue all his claims. “Most of the claims are too generalized,” he said. “I told him that if you were a wealthy person, we could find out if those claims are meritorious, if we had the money to investigate . . . but we don’t.” He would not say how often he has visited Tyson since his appointment on April 18, 2003. Stevenson, quoting Tyson, said it’s been once. If the state court rejects Tyson’s claims on procedural grounds, a federal court will almost surely do the same. This would happen despite the U.S. Supreme Court’s June ruling that a trial lawyer’s failure to investigate and present mitigating evidence in the penalty phase of a trial constituted ineffective assistance of counsel. Wiggins v. Smith, 123 S. Ct. 2527. Tyson would then have his date with the yellow mama. Finding legitimate claims Joseph Colquitt, a Tuscaloosa, Ala., circuit court judge for 20 years and now a professor of law at the University of Alabama, said that in his state there “is a problem, of course, in not giving people adequate resources to investigate.” He insists that most inmates do not have legitimate Rule 32 claims. But he said that separating out the few meritorious ones is difficult. “Having better lawyers would actually help the trial judge do a better job of separating them out and giving the legitimate cases the scrutiny they deserve,” Colquitt said. An Alabama Supreme Court justice says his state’s death-row inmates are well represented. “We need to make sure that we give adequate representation, because the death penalty is the ultimate sanction-and we do,” said Harold See, one of nine members of the state high court. That way, “the judicial system can be sure it’s made the correct decision on the merits.” At his sentencing, Judge Segrest asked if Tyson had anything to say. Tyson said he wanted to tell his family what really happened, that he wasn’t responsible for the murders, that he wanted to take the stand but that his lawyer would not let him. The judge urged Tyson on. “Nobody is holding you back,” he said “You just keep right on talking.” Goggans advised Tyson not to get into the facts. Then the judge sentenced him to death. Post’s e-mail address is [email protected].

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