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All Locked UpDid Joe Sullivan, sentenced to life at 13, have a fair trial?

By Amy BachPosted Wednesday, Nov. 4, 2009, at 12:35 PM ET

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Next week the Supreme Court will hear arguments, in Sullivan v. Florida, about whether sentencing a 13-year-old boy to prison without the possibility of parole violates the cruel-and–unusual-punishment clause of the Constitution. Joe Harris Sullivan is one of two teenagers that young currently doing life without parole for a nonhomicide offense in the United States. His lawyers are hoping that the court will extend its 2005 bar on executing criminals who committed crimes as juveniles to Sullivan's sentence.

Joe SullivanWhatever the court decides, its ruling will be based on the premise that Sullivan received a fair trial. The adequacy of that proceeding isn't before the justices now. But a brief review of the trial record reveals a process so pathetic that it raises questions about whether Sullivan committed the crime in the first place. It also seems that the trial judge may not have intended to sentence Sullivan to life without parole. In the end, that judge, along with the prosecutor and defense lawyer, failed Sullivan so deeply that we have to wonder whether his sentence reflects a deep and basic failure of ordinary criminal justice.

Here's what we do know happened. One May morning in 1989, Sullivan, then 13, and two older teens, Nathan McCants, 17, and Michael Gulley, 15, burglarized a home in Pensacola, Fla. They left with jewelry and coins. Later that day, someone returned to the house and found a 72-year-old woman, threw a black slip over her head, made her lie on her bed, and raped her orally and vaginally—so brutally that she had to have corrective surgery.

The remaining facts are trickier. The woman testified at trial that her assailant was a "dark colored boy" who "had kinky hair and he was quite black and he was small." She never looked directly at him. However, she remembered her attacker saying something like, "If you can't identify me, I may not have to kill you." At trial, she was permitted to testify that she recognized Sullivan's voice, saying, it "could very well be" his.

The two older boys, who both received brief sentences for their roles in the crimes, also testified. Gulley claimed that Sullivan said he'd raped the woman; McCants claimed not to have gone back to the house the second time.

Sullivan denied raping the elderly woman, admitting only to the initial burglary. But he was tried as an adult on two counts of sexual battery and other related charges. The only physical evidence was a fingerprint lifted from a plaque in the bedroom, which could have been made during the burglary. The clothing and other evidence have been destroyed and couldn't be tested for DNA.

Sullivan's lawyer, Mack Plant, had a straightforward job: to investigate whether Sullivan was guilty of just the burglary or the rape as well. Plant also should have found out if Sullivan's friends got reduced sentences because they flipped on him, as well as what their criminal histories were.

Plant punted at every step, beginning with his failure to address whether Sullivan was even competent to stand trial. Social science research shows that most teens don't have the ability to determine whether to take a plea deal, much less make decisions about strategy for trial. But from the record, it appears Plant never had his client's reasoning and comprehension skills evaluated.

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Amy Bach is the author of Ordinary Injustice: How America Holds Court. She is a graduate of Stanford Law School.

Photographs of Joe Sullivan by Glenn Paul/Equal Justice Initiative.

COMMENTS

"Sullivan's lawyer, Mack Plant, had a straightforward job: to investigate whether Sullivan was guilty of just the burglary or the rape as well. Plant also should have found out if Sullivan's friends got reduced sentences because they flipped on him, as well as what their criminal histories were."

Unfortunately many people would agree with the above statement. It indicates, however, how twisted our justice system has become. A defense attorney is not supposed to be an "investigator" -- despite all those nifty TV shows where the attorney plays private investigator and saves the day after some swell adventure. A defense attorney is supposed to be *given* an investigation, done by the police, and argue the defendant's case from it. Making the defense attorney investigate is shifting the burden from the state to the defense -- the defense must investigate and "prove innocence" rather than the state investigating and proving guilt.

I've had prosecutors tell judges that "it was the defense's duty to investigate" when they fail to turn over material that they were supposed to (like information on witness plea deals). Which is almost every trial. According to my job description, I sit behind a desk and review files (including the police investigation). I do not get time allotted to "investigate" -- visit crime scenes, search databases, etc. other than perhaps some witness interviews. And I have not been trained in photography, crime scene reconstruction, or medical science. As per 'Law and Order' it is "the police who investigate crimes" --- THEY are supposed to gather facts both for and against any particular person, which are then given to the defense and prosecution to argue over. I have police officers testify in court, however, that they are under no obligation to 'investigate' anything. Quote "My job is to get probable cause for an arrest and close the file." Likewise, for every enlightened District Attorney with an "open file" policy there are probably two who play "hide the ball" and hoard evidence, ignore Brady, etc.

In theory an incomplete investigation would mean there cannot be proof "beyond a reasonable doubt" and people would be found 'not guilty' -- and the police would have incentive to do better investigations. In reality, however, juries are asked to enquire of the defendant (not the state) "Why can't you prove this?" For example, in a burglary case the police don't even bother to look for fingerprints. Then the prosecution argues in closing "The defendant could have hired someone to get all the fingerprints off the door and prove they weren't his...." Well, no he couldn't, because he has no money. [in theory there are many legal arguments/defenses that can be made in situations like this. In reality, however, the justice system is leaning towards simply telling defendants "get your own police"].

-- fozzy
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Someone else's version of justice doesn't necessarily happen in the courtroom. It happens in the backroom and often the hallway on the way into the courtroom or when the defense and prosecution have lunch together. Over and over again, I saw this happen. As a former legal secretary, I worked on both sides, once for a public defender and later at the D.A.s office, both in the deep south. I was appalled at the inadequacy of both prosecutor and public defender to extract justice. The system, then as now is still broken. Cronyism is still the hue and cry and I don't see it changing.

-- Jeanie3836
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