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Many of the facts about the crime are not in dispute. At around 5:45 p.m. on Dec. 1, 1995, Julie Rhodes was returning from dinner with her grandmother to her cashier’s job at the Dollar General Store, at the Alexander City Mall in east-central Alabama. Rhodes was 18, the only child of a lower-middle-class couple that managed to keep their heads above water in a slow, and some said dying, town. She was driving her boxy old Toyota, with loud rap music playing in its tape deck. The town’s annual Christmas parade was starting to draw spectators and to close some roads. In the mall’s lot, as Rhodes was parking her car, she was approached by Tony Barksdale, a gregarious and handsome 19-year-old black man originally from the Washington, D.C., area. Barksdale was looking for someone to drive him and his two white buddies, Jonathan David Garrison and Kevin Hilburn, back to their home in Guntersville, Ala., some two hours to the north. Rhodes had just a few minutes before she had to be back at work. The request for the long trip was preposterous. But Barksdale persisted. Would she take the three of them to the Knollwood Apartments on the other side of town? She did not have time for that either. How about halfway? She relented. The three young men got into her car, and they set out for the drive that should have taken no more than a few minutes. Barksdale gave directions from the back seat. He had Rhodes turn right off the Sixth Avenue Extension into Charlotte Lane, a cul-de-sac. She stopped the car to let her three new friends out. At that point Barksdale produced the 9 mm Saturday night special, stolen from a car in Guntersville the night before. The two other men ran away into the night, hiding behind a garden shed 50 feet off Charlotte Lane. What happened next is very much in dispute. The only witnesses to the events were Rhodes, who was found nearly dead later that evening with two bullet wounds to her face and neck, and Barksdale, who was accused of killing her, then tried and convicted. There is no doubt that Barksdale fired the fatal shots with the semiautomatic. Rhodes lived long enough to be found by a neighbor couple, and to say, “A black man shot me.” There is no doubt that as Rhodes, mortally wounded and bleeding, was attempting to get to help and safety, Garrison and Hilburn emerged from the shadows, got back into the car, and the three drove back to Guntersville. The three showed off their new car and offered various and inconsistent explanations for the bullet hole in the driver’s-side window. Barksdale, relatively new to Guntersville, continued to play with his gun, and even the collection of young hooligans with whom the three spent the next few days were uncomfortable about the casual way in which this big-city newcomer was flaunting a dangerous weapon. It was only a few days before someone’s curiosity was sufficiently piqued to mention this strange set of circumstances to a parole officer, who happened to have heard about the unsolved murder in Alexander City of a teenage girl, whose stolen car looked very much like the one now being driven around Guntersville. The trio were arrested, and it took little intense interrogation to get them to confess to the crime. Barksdale admitted he was the triggerman. He told the police he had removed the gun from his pocket as Rhodes stopped her car on Charlotte Lane. But he said the shooting was an accident. He was trying to unload the gun, he said, and it jammed. Trying to force the slide back, he hit it with the flat of his hand, and the gun went off. Rhodes was shot. Barksdale said he had no idea how the second round came to be fired. All three were arrested, and the Alexander city police went about gathering their evidence and talking to their witnesses. The three were locked up in Dadeville, the Tallapoosa County seat. Within a few days of their transfer to Dadeville, a fight in the lockup resulted in Hilburn being strangled to death by a cellmate. Both of the surviving defendants were charged with capital murder. Neither could afford a lawyer, and Thomas Goggans of Montgomery was appointed to represent Barksdale. Goggans was a capital-trial veteran. His track record was decent, for Alabama, and his reputation was good. It seemed as if Barksdale had caught a break, for once. I say “for once” because many of the facts concerning Tony Barksdale are also not in dispute. Born in Washington, D.C., and raised — if it can be said that he was raised — in the Virginia suburbs, he had a violent, abusive father and a drug-addicted mother. Their marriage did not last much beyond Barksdale’s birth. For his first 10 years he was shuttled between their homes, although he was wanted in neither. He witnessed violence and learned the law and the lore of the streets. When he was 15, Barksdale was an unarmed participant in the robbery of a pizza deliveryman in Alexandria, Va. His brother Tyrone was the gunman, and a third boy was also involved. All three were tried and sentenced as adults. Tony Barksdale served nearly three years in adult prison in Virginia, where he earned two GEDs. After his release, he decided to try for a new start, following a friend who had moved to Alabama. Barksdale was tried and convicted for the murder of Julie Rhodes in 1996 and was sentenced to death. His lawyer put on a single witness during the guilt stage of the trial, and none at the penalty stage. The entire defense presentation to the jury on punishment, including the closing argument — the entirety of the case asking the jury to spare the defendant’s life — takes up just three pages of transcript, and lasted no more than seven or eight minutes. What, one might well wonder, was there to say? There was plenty to say, and it went unsaid. The principal witness against Barksdale was Jonathan Garrison, his accomplice. Garrison took a plea in exchange for his testimony, and he told the jury, among other things, about how Barksdale had made Rhodes beg for her life before killing her. The only problem with Garrison’s account is that it cannot be true. According to his own statement to the police, at the time of the supposed “begging,” Garrison was 50 feet away from the road and 100 feet from the car. The windows were rolled up, and the rap cassette was still in the player. There is no way Garrison could have seen what he said he saw or heard what he said he heard. Yet the jury never knew any of this because Goggans failed to ask the witness these questions. It gets worse. The one witness the defense did call was a weapons expert, who reported in writing that in one of his tests the slide of the semiautomatic jammed in precisely the way Barksdale had said it did. Yet the jury never knew this either, since, incredibly, defense counsel failed to ask his own witness about it, much less to introduce his report into evidence. The state went to the jury asking for the death penalty, largely based on the statutory “aggravator” of the earlier conviction of a violent crime: the robbery in Alexandria. Yet the jury never learned that Barksdale had not been armed during that crime. The files, readily available from the Alexandria public defender, made clear that his role was as the “lure,” who committed no act of violence. Yet the jury never knew this because counsel did not bother to obtain those files. I began representing Barksdale pro bono in 2002, just after his state habeas petition had been filed by the Equal Justice Initiative, a private, nonprofit organization that provides legal representation to indigent defendants and prisoners. I was then a partner at Patton Boggs, which had supported my work in a number of other death penalty cases over the previous decade. Last fall I moved to Greenberg Traurig, and brought with me some paying clients — and Tony Barksdale. The firm has permitted me to bring on board a litigation associate, Ross Eisenberg. Willa Perlmutter, of counsel to Patton Boggs, remains second chair. In June the three of us presented our habeas evidence in Tallapoosa County. We met the state’s usual arguments about procedural waivers and defaults. But just as we were getting ready to try our case, the Supreme Court announced its decision in Rompilla v. Beard. In that case, from Pennsylvania, the Court reinforced the obligation of defense counsel in capital cases to do everything possible to develop theories and facts in mitigation of sentence. They must investigate, even if their client cannot or will not help them. In particular, where the state’s proposed aggravator is an earlier conviction, they must delve into the facts of that case. And their assistance is constitutionally ineffective if they fail to do these things. The Supreme Court has given us hope that Barksdale’s life may be spared despite his own lawyer’s failure to do anything to help him at trial. His is, of course, only one story among hundreds of how poorly the legal system has served the residents of our nation’s death rows. Our proposed findings of fact and conclusions of law are due in September. Then our team is resolved to take the case to whatever level we must to ensure that Tony Barksdale is treated fairly by the legal system, at last.
Steven M. Schneebaum is a shareholder in the Washington, D.C., office of Greenberg Traurig.

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