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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

(Continued from page 1)

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The lawyer declined to give an opening statement, which is like a batter not taking a swing. Plant also failed to cross-examine witnesses vigorously. He did not explore Gulley's and McCants' backgrounds to show they had a motive to lie. He never asked: "Did you get a deal here?" Michael Gulley had an extensive criminal history that included one sexual offense, according to court papers. A lawyer might have used this information to cast Gulley as a possible suspect instead of Sullivan. Plant did not. Instead, he focused on the fact that Gulley had to have his memory refreshed about the entire crime before testifying. This was a good point, but Plant blew through it. (Entire cross: a little more than a page.) And he never challenged the victim's identification of her assailant's voice as Sullivan's or asked her to listen to the other two boys' speech.

Joe SullivanIn his closing, Plant again said nothing about the self-serving nature of McCant's and Gulley's testimony. Here's his best line to the jury: "You know, I just don't know about this case." How true.

The trial whizzed by in eight hours. The jury took 35 minutes to convict. You could hardly blame them, based on the little they'd heard. Plant has since been suspended from the practice of law in Florida. The adequacy of his representation of Sullivan, however, was never properly raised on appeal.

The judge and prosecutor were also complicit in Sullivan's inadequate trial. At the sentencing hearing, after Sullivan's conviction, the question before Judge Nickolas P. Geeker should have been whether a 13-year-old who committed this horrible crime could be rehabilitated. Unlike an adult who commits the same offense, a young teen can change, according to the research of mental health researchers Laurence Steinberg and Thomas Grisso, who were the main experts in the juvenile death-penalty case and whose work Sullivan's attorneys are relying on now. A daylong hearing exploring the research on brain development and responsibility for young teens, along with Sullivan's juvenile history, family, education, and mental ability, would have given the judge the information he needed to determine whether Sullivan really merited the punishment of prison for life.

While the prosecutor may be less to blame than the defense attorney or the judge, he also has a responsibility to make sure that the punishment he's asking for is appropriate. Prosecutor Lawrence Kaden described Sullivan's criminal history in terms of the number of points he had accrued under the state's adult sentencing guidelines. He apparently didn't take into account that two-thirds of those points were due to a crime Sullivan committed at age 12, when he and his older brother broke into a house and were attacked by a dog, which Sullivan hit in the head, accidentally killing it.

At the sentencing, Judge Geeker should have appointed another lawyer to replace Plant. Instead, he said, somewhat inexplicably, that he wanted it to be "perfectly clear to everyone that when he (Sullivan) gets out again and he commits any more offenses, he'll not be a juvenile offender. Hopefully, he will be an old man."

If the judge meant to sentence Sullivan to life in prison without parole, why did he mention his release? (If he made a mistake, he wouldn't be the first. Another Florida judge has admitted to being confused about the law and incorrectly sentencing a 14-year-old to life without parole.)

There's no way to know, because as at so many other troubling moments in this trial, no legal professional stepped up to ask a question or to protest. Sullivan's trial showcases a common failure of the adversarial system—one that's especially troubling when the stakes involve locking up a child forever.

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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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