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A recent article in your publication ["On their own," by Leonard Post, 12-1-03] failed to meet the ordinarily high standards of journalism of the NLJ. The article was riddled with false and misleading assertions about the system of post-conviction review of death sentences in Alabama, especially the case of Anthony Tyson. Allow me to set the record straight. The erroneous theme of the article was that inmates on death row are commonly unrepresented. One of your sources, Bryan Stevenson of the Equal Justice Initiative of Alabama (EJI), however, has failed to back up this very assertion in a class action that he filed in 2001. My office in June 2003 presented testimony to prove that all but three of the 130 inmates with cases pending in the state system of post-conviction review and the federal habeas system are, in fact, represented by counsel. Of these inmates, 92 are represented by either large out-of-state law firms or public interest groups, 17 are represented by Alabama private practitioners and 18 are represented by EJI. Stevenson never challenged the veracity of this evidence. Rather than being “on their own,” most of these inmates are represented by firms with more resources than the dozen lawyers of my office who defend every death sentence. The article contained several inaccuracies about the supposedly “illustrative” case of Anthony Tyson. First, the article referred to Tyson as a “small-time criminal.” Before his conviction for a capital offense (double murder), Tyson was convicted of manslaughter, attempted murder and shooting a firearm into an occupied dwelling. The evidence at the capital trial also showed Tyson’s involvement in the distribution of cocaine. He was a “big-time” criminal. Second, the article parroted all of the allegations contained in Tyson’s petition, but omitted any response of the state. The article stated, for example, that the prosecution used all of its 12 peremptory challenges to strike African-Americans. Although this statement is facially true, the rest of the story is that the jury that convicted Tyson consisted of all African-Americans, the prosecutor was African-American and the venire was from Macon County, which has the highest percentage (84.6%) of African-Americans of any county in Alabama and the second-highest percentage of any county in the nation. Third, to create the impression that Tyson may be an innocent victim of incompetent trial counsel, the article ignored some of the compelling evidence against Tyson. Ten days after the double murder, for which no arrest had yet been made, Tyson was riding in a car and fired a shot at Nicholas Martin. Individuals riding in the car with Tyson said he fired a .380 semi-automatic pistol, the same caliber weapon used in the double homicide. Martin identified Tyson as one of the persons shooting from the vehicle. One of the bullets that Tyson fired was found, and ballistics testing conclusively established that the bullet was fired from the same weapon used in the double homicide. Witnesses testified, moreover, that the gun belonged to Tyson. This event was described in your article as a gunfight with “several participants” in which “[n]o one was hurt.” The article acknowledged but attempted to minimize other incriminating evidence. The article, for example, stated that blood from one of the victims matched blood stains on a pair of sneakers found in Tyson’s apartment, but asserted that no evidence was presented to show that the sneakers belonged to Tyson. The article failed to acknowledge, however, that the sneakers were found in Tyson’s bedroom. The article acknowledged that Alphonso Cardwell identified Tyson as being the third person in the car with the two victims but suggested that the identification was shaky. In fact, Cardwell, who bought drugs from one of the victims minutes before the double murder occurred, identified Tyson from a photographic lineup and has never recanted his identification of Tyson. The article stated that several witnesses who identified the .380-caliber pistol, which was ultimately proved to be the murder weapon, as Tyson’s gun had pending criminal charges that were dismissed in exchange for their testimony. The article omitted that John Cunningham, one witness who testified that the murder weapon was Tyson’s gun, had no pending or even potential charges against him. The article unfortunately presented an unbalanced view that prevents the readers of your fine publication from making their own judgments. Instead of an objective article, the reporter presented primarily the views of the anti-death penalty activist lawyers he interviewed. The truth is that death sentences in Alabama receive serious scrutiny in a system of extraordinary safeguards, which takes far too long. Only those guilty of heinous crimes are executed. William H. Pryor Jr. Montgomery, Ala. The writer is the attorney general of Alabama.
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Editor’s Note: Readers will decide for themselves, but we think that the story to which Attorney General Pryor takes exception was fair and accurate. Taking his allegations of inaccuracy in the order he raises them: We did not misrepresent Tyson’s violent criminal record or try “to create the impression that Tyson may be an innocent victim of incompetent trial counsel.” Our aim was to describe the representation of a typical death penalty defendant in Alabama, not to argue for his innocence. Whether guilty or innocent, if a defendant in a capital case has ineffective trial counsel, as Tyson alleges, it is presumably a matter of some interest to our readership. The story described Tyson as a “sometimes violent hoodlum with a prior conviction for manslaughter.” In words that are echoed in the attorney general’s letter, the story reported that Tyson “had pleaded guilty to manslaughter in 1993 and that he had prior convictions for attempted murder and shooting into an occupied dwelling.” These events, we noted, were among the “statutory aggravating factors argued by the prosecutors” in support of the state’s request for the death penalty. (The transcript of the trial revealed no evidence that Tyson distributed cocaine.) We did report (“parroted” as the attorney general has it) the issues raised in Tyson’s petition. The state’s response to “all the allegations” was not reported for the simple reason that the state made none. Its motion to dismiss was based solely on procedural grounds. Efforts to interview officials about the substantive matters were unsuccessful. The attorney general is correct in noting that we did not report the racial makeup of the jury, only that Tyson’s petition alleged that all peremptory challenges were used on African-Americans. Because both the prosecutor and the defense trial counsel declined to be interviewed, we relied on court records for information. The racial makeup of the jury is not disclosed in those documents. Neither is the racial composition of the jury panel. The racial makeup of the jury finally selected does not dispose of the issue that Tyson’s petition raises: whether the prosecution systematically tried to eliminate black jurors. The story did not “ignore” the Union Springs, Ala., shooting incident that led to Tyson’s arrest. We reported what seemed most relevant about it. Had we wished to make a long article longer, we could have reported on doubts raised at Tyson’s trial about the value of the resulting ballistics evidence. Judge Philip Dale Segrest voiced misgivings about the chain of custody and wondered on the record whether the shells had been “planted” to “frame” Tyson. Despite the judge’s indication that he would give a limiting instruction on it, none was given or requested on the record. Nor was the issue raised on appeal. Pryor writes that we “failed to acknowledge” that bloody sneakers “were found in Tyson’s bedroom.” That is simply untrue. The story reported on a police search warrant for “Tyson’s apartment”; during the search, one occupant “ran into the bedroom” where he tried to reach for a gun under the mattress. “Besides the gun the police seized a pair of tennis shoes,” the story reported. Likewise, despite Pryor’s letter, the story fully reported on witness Alphonso Cardwell’s identification of Tyson in a police photo lineup. We devoted a paragraph to issues that the defense might have raised about its probative value. We correctly quoted Tyson’s petition as saying “several” state witnesses had charges against them that were dismissed in exchange for their testimony. The attorney general’s statement that John Cunningham had no pending or potential charges is flatly contradicted by the trial transcript. The judge, concerned about potential charges in the Union City shooting, read him his Miranda rights. In addition to “anti-death penalty activist lawyers,” the story reported on the views of an Alabama Supreme Court justice, an ex-federal magistrate judge from Montgomery, Ala., and a former Alabama circuit judge. It also included a quotation from Attorney General Pryor’s testimony before Congress. A request for an interview with the attorney general was denied. When our reporter interviewed Clay Crenshaw, chief of the state’s capital litigation division, he declined to discuss the specifics of the case, citing office policy. As noted, the prosecutor declined to be interviewed. We believe that the attorney general sidesteps the issue that we sought to raise when he writes that all but three of Alabama’s death row inmates who have pending petitions are represented by counsel. No one has alleged that inmates typically remain unrepresented throughout the post-appeal process. Tyson has a state-appointed lawyer, duly noted in our story. The issue of fairness arises because, before their petitions are prepared, prisoners must obtain counsel on their own or write the petitions themselves, sometimes making fatal procedural errors. Their post-appeal lawyers often arrive too late to do a proper investigation and plead sufficient claims. At least 20 Alabama death row inmates are now eligible to file post-appeal petitions but do not have lawyers, even though their time to file is running.

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