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The 1998 trial of Daniel M. Colwell laid bare the inability of Georgia’s trial courts to deal with the mentally ill, Colwell’s lawyer told the Georgia Supreme Court Monday. The appeal is not about “a bad person. It’s not about a person who is on drugs. It’s not about a person lost in society,” said B. Michael Mears. Instead, he added, it’s about a man who “fell through the cracks of the mental health system with tragic consequences.” Mears asked the justices to extend the prohibition against executing the mentally retarded to include the mentally ill. He pointed out that both categories of defendants were once lumped together in Georgia’s statutory scheme. But the appeal likely will revolve around what the defense says was the judge’s interference in the attorney-client relationship. They say he encouraged Colwell to disregard his lawyers’ advice and improperly disregarded Colwell’s request to represent himself. Colwell, diagnosed with schizophrenia, bipolar disorder and schizoaffective disorder, gunned down two strangers in an Americus, Ga., Wal-Mart parking lot in 1996. He said he did so in order to get the death penalty because he wanted to die but couldn’t kill himself. ‘STATE-ASSISTED SUICIDE’ At Monday’s arguments, attended by part of Colwell’s family, Mears said the former high school star running back and Middle Tennessee State University fullback had attempted “state-assisted suicide.” “That’s your word, Mr. Mears,” broke in Justice George H. Carley. Those were Colwell’s words, Mears said, adding that his client repeatedly had insisted that he murdered Mitchell and Judith Bell so that he would be executed. The justices have rejected arguments in other cases that characterize the death penalty as state-assisted suicide. But this case, Mears suggested, was just that. Lawyers for both sides addressed the issue of the constitutionality of Georgia’s electric chair, but Assistant Attorney General Patricia Attaway Burton told the court that it had an inadequate record before it on that issue. Sumter County Superior Court Judge R. Rucker Smith had denied the defense’s written motion for a hearing on electrocution, and the record of exhibits on that issue was not proffered or tendered to the trial court. JUDICIAL CONFLICTS The justices could decide to tackle that issue in Colwell’s case, but during arguments, they appeared more interested in Colwell’s mental illness and how Judge Smith handled conflicts between the defendant and his trial lawyers. Colwell continually battled his own lawyers at the 1998 sentencing trial over who would control the case. He said he wanted no mitigating evidence presented to the jury, while the lawyers threatened to quit if they could not do so. Smith refused to allow the attorneys to withdraw, and insisted they yield to Colwell’s wishes. At various points, he told the defendant he didn’t have to listen to his lawyers. Colwell eventually agreed to let his lawyers put up mitigating evidence, telling the judge he was afraid the Georgia Supreme Court would reverse a death sentence if they did not do so. Mears contends that Smith repeatedly interfered in the attorney-client relationship and that he erred in ignoring a letter from Colwell demanding that he be allowed to represent himself. Colwell, Mears told the justices, had been found competent to stand trial and consequently, had an absolute right to represent himself. FARETTA HEARING Smith should have conducted a Faretta hearing-one which inquires into whether a defendant is making a knowing and intelligent waiver of counsel, Mears said. Instead, the judge insisted the lawyers represent Colwell, but demanded they follow their client’s bidding in all matters. What was the arrangement? asked Justice Leah W. Sears. “You were counsel to do what you were told by the defendant?” Exactly, Mears said. But, he added, Smith continually interfered in the relationship. Smith told Colwell he could plead guilty if he wished, Mears said, effectively undermining the lawyers’ attempts to have Colwell plead guilty but mentally ill. With that advice from the judge, Mears said, “Our role as counsel was forever destroyed after that point.” Former District Attorney John Parks, who tried the case but recently retired, countered that Judge Smith was reacting to numerous statements by Colwell that he was guilty and wanted the electric chair. Colwell, he said, fully understood the consequences of his guilty plea. Justice Norman S. Fletcher broke in. “Is there any question if he’s mentally ill? Does anyone do what he has done and not be mentally ill?” Parks acknowledged that experts had diagnosed Colwell as mentally ill. But Parks also defended Smith’s handling of the trial. The judge, he argued, was trying to ensure that Colwell was satisfied with his representation. While at first it appeared that the defendant wanted to represent himself, Smith determined that Colwell was actually expressing his disagreements with his lawyers, Parks said. Sears wasn’t satisfied. Was Colwell pro se, did he have counsel or did he have standby counsel? She wanted to know, adding that those are the only choices available. Under Georgia law, defendants may act pro se, and may have standby counsel, but cannot have a lawyer as co-counsel. Parks said Colwell didn’t act as a co-counsel, but as a defendant with “active, imaginative and very forceful counsel.” Mears, on rebuttal, said the attorney-client relationship at Colwell’s trial was unlike any he had encountered, given Colwell’s mental illness. “It changed from day to day,” he told the justices. “One day, we could talk him into letting us present a witness by promising him Kentucky Fried Chicken for dinner.” At one point, Colwell demanded Mears read a letter to the jury that threatened the lives of the panel members should they not return a death sentence. “We had no choice because Judge Smith insisted,” Mears said. “We were counsel with our hands tied.” Attorneys representing disabled clients, he added, are required to act with care in safeguarding their interests. “It is not in the interests of a client to kill himself,” he said, adding “I apologize for using that word, but that’s what this case is all about.” Earlier in the day, the justices heard arguments on another death penalty case. Timothy Don Carr was convicted of the murder of 17-year-old Keith Patrick Young and sentenced to die by a Monroe County jury. Carr stabbed Young repeatedly with a knife and beat him with a baseball bat, then stole his car. SENTENCE VACATED Carr’s conviction and sentence were affirmed by the Supreme Court in 1997, but Fulton Superior Court Judge Alice D. Bonner, hearing Carr’s habeas corpus petition, vacated the death sentence. Bonner concluded that trial attorney Harold E. Martin provided ineffective assistance of counsel that affected the outcome of the sentencing phase. Arguing for the state, Burton told the justices that Bonner made incorrect findings of fact, and engaged in an improper hindsight analysis of Martin’s tactical decisions. She asked the court to reinstate Carr’s sentence of death. Carr’s habeas lawyer, Nila Jean Robinson, argued that Bonner’s findings were supported by the record. Martin, she told the justices, failed to give his experts key information, failed to present important witnesses and had his client confess to the prosecutor in a failed effort to get a deal for a life sentence.

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