Lose That LawyerDo defendants in Georgia have any right at all to competent representation?
Posted Tuesday, June 3, 2008, at 4:04 PM ET
During his five years as a justice of the Georgia Supreme Court, four of them as chief justice, Norman S. Fletcher says he voted to affirm "countless" murder convictions and a significant number of death sentences. But today Judge Fletcher is having second thoughts about one man he voted to send to the executioner in June 1993.
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StumbleUponCurtis Osborne is scheduled to be put to death by the state of Georgia tomorrow night for a gruesome double murder he committed in 1990. There is no question that Osborne is guilty. But Fletcher says neither Osborne's jury nor the Georgia Supreme Court knew the full truth about his history at the time they made their decisions. Most importantly, he says, they didn't know that Osborne's lawyer was a racist and had never put in the time needed to present his client's mental problems and abused past, having concluded that, "The little nigger deserves the death penalty."
On Monday, despite a letter from Fletcher and other testimony, the Georgia parole board rejected without comment Osborne's appeal to have his sentence commuted to life in prison. This is a monument to the bankruptcy of the constitutional right to be represented by an attorney. The Supreme Court has never explicitly stated what level of competence is required to satisfy the Sixth Amendment's right to counsel, instead inviting state and local bar associations to come up with their own standards. But the local bars have been notoriously unwilling to challenge the performance of their bad-egg members. This case demonstrates that it's past time for the high court to wade back in and demand rigorous standards to which lawyers are held accountable. Osborne's lawyers are filing a series of last-minute appeals in an attempt to save his life.
The lawyer that Georgia assigned to Curtis Osborne, Johnny Mostiler, barely lifted a finger to defend him. Mostiler never hired a psychiatrist to examine evidence that Osborne was a victim of childhood abuse, and was borderline retarded, despite a court-ordered sanity evaluation that had found "indications of depression, paranoia, and suicidal ideation." He never examined the history of mental illness in Osborne's family because, he said, he didn't know how to conduct that kind of investigation. Mostiler called no expert witnesses to testify for his client and didn't bother to interview the state's experts before they appeared at trial. And he rejected appointment of a second attorney to help with Osborne's defense, which the American Bar Association and all serious death penalty litigators say is essential if a capital murder defendant is to receive a fair trial.
And then there is the matter of Mostiler's alleged racism and how it might have affected his defense of Osborne. The most explosive evidence of racial bias is contained in an affidavit by one Gerald Steven Huey, a client of Mostiler's. In addition to the quote Judge Fletcher cites, Huey says Mostiler made it clear that he would not be spending much money on Osborne's defense because "that little nigger deserves the chair." Huey also charges that Mostiler was offered a plea bargain under which Osborne would have received a life sentence in exchange for a guilty plea, but that the lawyer said he "would never tell Mr. Osborne about it because he deserved to die."
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