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Lose That LawyerDo defendants in Georgia have any right at all to competent representation?

By Alan BerlowPosted Tuesday, June 3, 2008, at 4:04 PM ET

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Richard Thompson Ford referenced the Georgia Supreme Court's involvement in snuffing the plight of same-sex marriage. Dahlia Lithwick reflected on Supreme Court rulings that dealt with the rights of criminals and the usefulness of lawyers. Scott Shuger weighed in on the controversy over whether John Walker Lindh voluntarily waived his right to an attorney. David Greenberg's "History Lesson" suggested that even DNA testing would not kill the death penalty.

Huey might not be the most credible witness on the planet. He's serving a life sentence for murdering and dismembering a drinking pal and didn't come forward with his claims until 2000, long after Osborne's trial and appeal. By then, Mostiler was dead and couldn't defend himself. But Huey isn't alone in suggesting that Mostiler's racism might have infected Osborne's defense. In March 2000, Derrick Middlebrooks, an African-American on trial for selling cocaine, asked the trial court judge to replace Mostiler, saying the lawyer told him that he wouldn't go to a particular neighborhood "because them niggers would kill him."

Asked by the trial judge about the comments, Mostiler didn't deny them. And in a new affidavit filed on Monday, Arlene Evans, who practiced law in the same county as Mostiler, says she also heard him use "racial slurs like 'nigger.' " She recounted one conversation in which, "Mr. Mostiler said he thought young black men were lazy and asked me why I thought that was so."

Perhaps most importantly, Evans says she has first-hand knowledge of Mostiler's failure to adequately defend Osborne. Evans was initially assigned to Osborne's case, after he was charged with murder in 1990. Because she had never tried a death penalty case, she asked the court to appoint co-counsel, and Mostiler was assigned to work alongside her. But over the next several months, Evans said Mostiler "was always too busy to meet with me or me and Mr. Osborne." Evans says she withdrew from the case in April 1991, eight months after Osborne's arrest, out of frustration, "Because I did not feel I was qualified to handle a death penalty case, and because I did not believe Mr. Mostiler was prepared to defend Curtis Osborne." Unfortunately for Osborne, that left him with only Mostiler. Although Evans insists she has spoken out about her former co-counsel before, it is a great pity that her detailed allegations did not surface until Monday.

In his letter to the parole board, Judge Fletcher explains why he did nothing to correct the injustice in Osborne's representation when the case came to him on appeal in 1993. His "weak response," he said, was a result of the limited review appellate judges provide: They can address only issues raised and ruled on by a lower court judge. Because of Mostiler's "grave shortcomings," the mitigating evidence about his past that might have saved Osborne's life never got a hearing. One state trial judge considered and rejected a claim that Osborne deserved a new trial because of Mostiler's ineffective lawyering, but that ruling came before the evidence of Mostiler's racial views emerged. No court has addressed the evidence that Mostiler's failure to act on his client's behalf might have resulted from his racial animosity. Now the only chance for Osborne is that the Georgia Supreme Court or the U.S. Supreme Court will order a lower court to review Mostiler's track record. It's a slim one.