Well. This IS just so very very special! Apparently, it no longer matters if the state knows who it's put on trial for murder, just so long as it's got a warm body.
A federal appeals court yesterday upheld the death sentence of a brain-damaged Louisville man whose lawyer did such a poor job researching his case that the attorney didn't know his real name. By a 7-7 vote, the 6th U.S. Circuit Court of Appeals refused to overturn the death sentence of James Earl Slaughter, 43, who was convicted of the 1983 murder of Esther Stewart, a Louisville consignment store owner.
The seven judges who opposed executing Slaughter said lawyer Fred Radolovich, who still practices in Louisville, did such a bad job investigating his client's background that the jury knew "nearly nothing" about him, including the fact he had a brain injury and that his real name was Jeffrey Leonard. The judges said the jury never learned that Slaughter had an untreated skull fracture as a child; that his mother and stepfather beat him so badly that scars remain all over his body; and that his parents locked him and his siblings in rooms without food.
In a scathing and emotional opinion, the dissenting judges also said that because of Radolovich, Slaughter's mother, brother and grandparents didn't even know he was facing trial for his life 16 years ago. "The image presented to the jury was a man so loathed that nobody -- not even his family -- would corroborate his testimony or plead for his life," Judge R. Guy Cole Jr. wrote for the dissenters. "In reality, his family -- including the younger siblings he protected as a child -- would have testified in this way, but they never knew he was on trial."
Slaughter is being held on death row at the Kentucky State Penitentiary at Eddyville. One of his lawyers, Marguerite Thomas, said she will ask the U.S. Supreme Court to hear the case and is confident that that court will look at it. Vicki Glass, a spokeswoman for the Kentucky attorney general's office, said it was studying the ruling and had no comment on it. Radolovich could not be reached for comment.
Five years ago, U.S. District Judge Jennifer Coffman of Louisville ordered a new sentencing hearing for Slaughter, citing a reasonable probability that Slaughter would have received life in prison instead of death if Radolovich had done a better job. Coffman found that Radolovich had no experience in death-penalty cases and in fact had been indicted on a perjury charge by a Jefferson County grand jury because he allegedly testified falsely under oath that he had handled several capital cases in New York. A trial is scheduled for Feb. 12.
A three-judge panel of the federal appeals court in June agreed that Radolovich's performance was "defective" but ruled 2-1 that his failures were not prejudicial, in part because Slaughter was allowed to testify about his abusive upbringing and a clinical psychologist testified he could be reformed. The majority, including Judge Danny Boggs of Louisville, said it wasn't reasonably probable that a single juror would have switched his vote to life in prison if Radolovich had done a better job. The 7-7 ruling by the full court affirmed the panel's ruling. Eight votes would have been needed for the full court to have heard the case.
The majority did not issue an opinion. But the dissenters, including Judge Boyce Martin Jr. of Louisville, wrote that it was no surprise that the jury felt compelled to sentence Slaughter to death, given they believed there was "not even a single family member to suggest his life should be spared.… Although we cannot be absolutely certain," the dissenters said, "this court's decision leaves one aspect of this case indisputable: We will never know." [...]
What I don't understand is how this case does not present, on its face, sufficient evidence of defense AND prosecutorial incompetence. Surely it's in the state's own interest to make certain that it's trying the right person for murder -- if you get something so basic as the person's actual identity so completely wrong, what faith can a reasonable person have that the rest of the case isn't made up of whole cloth as well? To be sure, that doesn't seem to be the case here -- the argument isn't that Mr Leonard didn't commit the murder, but that the defense was so incompetent that it didn't know that Mr Leonard was not James Earl Slaugher, which would have allowed them to present mitigating fctors.
At this stage, they probably can't raise the issue, but there's also a reasonable case to be made that Mr Leonard's brain damage may have affected his ability to participate effectively in his defense. After all, you'd think that he'd have kept saying, over and over, "My name isn't James Earl Slaughter," until someone checked things out and found out that he was telling the truth. That would almost certainly have produced an immediate mistrial at the trial stage, a fairly scathing opinion of both sets of lawyers from the judge, and a retrial where everyone who needed to know about it could have been located. Unfortunately, it's almost certainly not an issue that the appeals courts can consider -- after all, if it had come up in the original trial, they wouldn't be appealing on the grounds that nobody knew the man's name.
And let us consider the lawyer, shall we? Let's shall.
...Radolovich previously said his indictment in 2003 on a charge of lying about his record in capital cases was "political payback" for representing Tina Conner, ex-Gov. Paul Patton's former mistress. The commonwealth's attorney's office denied the allegation and said Radolovich was charged because he misrepresented his record in a 1994 hearing on Slaughter's conviction. Trial of the case has been continued several times.
The indictment is one of several embarrassments for Radolovich over the past few years. In 2002, The Courier-Journal reported that Radolovich had fabricated previous claims to have prosecuted a Serbian general for war crimes at the World Court in the Netherlands. Officials in Serbia said there was no such general, and officials at The Hague said Radolovich had never appeared there. In 2000, a neurosurgeon won a $72,000 verdict against Radolovich after proving the lawyer sued him for medical malpractice without any evidence that he was negligent or consulting an expert witness. Radolovich acknowledged the only physician he consulted was one of his own clients, who was accused of fondling patients....
Somehow, the state of Kentucky still considers this person competent to represent people in trials. Unfortunately, his subsequent record doesn't really mean anything for Mr Leonard -- just because Mr Radolovich's record since 1994 has been ... interesting, let us say, this doesn't automatically mean that he was doing anything of the sort back in the 1980s, when Mr Leonard's case was originally tried. That said ... you'd think the mere fact that he didn't know who his client was and clearly didn't do any real sort of investigation into his past would stand alone in testimony of his alleged incompetence, wouldn't you? But apparently, the state of Kentucky and, to date, the federal courts beg to disagree.
I can't imagine that the Supreme Court wouldn't agree to hear this case. I would also imagine that, after accepting it, they would summarily reverse the appeals court in a fairly pointed per curiam order without actually requiring anyone to argue the case at the Court itself. I don't see how this case doesn't offend justice in such a profound way that they really don't need to hear arguments, that they can make the decision based purely on the case record itself.
Then again, the only predictable thing about the current Court is its relative unpredictability, so who can tell?
One thing puzzles me: this case is about 20 years old. That should surely mean that it's gone through the Kentucky state court appeals process; as I understand it, you normally have to exhaust state appeals before you're allowed to move this type of case into federal courts. It should have gone to the US Supreme Court from the Kentucky Supreme Court some time ago, and the deserved legal bitchslap would have been aimed at the Kentucky courts and not the federal appeals courts. So why on earth is this case still hanging around? I assume, given the situation, that if it did go through the Kentucky courts, that they all affirmed the sentence. Did the US Supreme Court actually refuse certiorari on this case once before?Posted by iain at November 02, 2006 11:04 AM