Two idioms share a meaning. Some say "asleep at the wheel," and others "asleep at the switch." The difference, it appears, comes down to whether you are an automobile or train person, according to Grammarist. This morning, I found myself thinking of that idiom(s) and Billy Shakespear's line in Hamlet - "Something is rotten in the state of Denmark." The two came to me when I heard from Horace Middlemier, Esq. about an intriguing situation in Kentucky.
Spectrum News 1 recently reported about an inmate who "will have a parole hearing 36 years after being found guilty." For several years, this inmate was on Kentucky's death row, but in 2019 "then-Gov. Bevin . . . change(d) (the) sentence from a death sentence to a life sentence.” That may not be so common, but it happens. The parole hearing is also likely to be surprising to some.
What is known for sure is that Debbie Pooley moved to Kentucky in the 1980s. She was 30 years old when she was abducted, raped, and robbed. Two people were arrested - Gregory Wilson and Brenda Humphrey. Ms. Pooley's body was then "dumped" in Indiana.
Gregory Wilson was convicted. Years later, the Governor commuted the sentence for "poor prosecution and defense." One source quoted by the Spectrum article says that there was some suspicion that the case was used by some to illustrate "how poorly funded the public defender system was." And he acknowledges that "Mr. Wilson was guilty as sin. I don’t think there’s anything the best attorneys in the world could’ve done to save him from being convicted."
The Spectrum story provides perspective from the relatives of Ms. Pooley, and some dispersions for the Governor who commuted the sentence.
The Cincinnati Enquirer ran a story about the commutation. It quoted the Governor's perceptions as noted there:
"To say that his legal defense was inadequate would be the understatement of the year,” “The prosecution and defense in this case were, from start to finish, incredibly incompetent.”
According to the Enquirer, "Several lawyers had been assigned to" defend Wilson, but for whatever reason those counsels did not persist. There was apparently a system in which attorneys could volunteer to defend such a case for $2,500, but no one stepped forward. The Circuit Judge "posted a notice . . . in a desperate plea for volunteers." Two lawyers volunteered; "one had never tried a felony before and the other, William Hagedorn, who offered to serve as lead counsel for free, had no office, no law books, and used the phone number of a local tavern on his business card."
The fact is that $2,500 sounds like real money, and was worth more in the 1980s. The Inflation calculator says that $2,500 in 1985 is the equivalent of about $7,500 today. However, defending a murder case is time-consuming and often complex. I have never had to do it, but it is a topic I have spent some time studying. Furthermore, I well know the amount of time required for prosecuting a workers' compensation claim, and can thereby appreciate how rapidly an attorney might invest time in any case.
Of course, there is no requirement that one have his own phone number, office, or books. After all, one might be The Lincoln Lawyer (Lionsgate, 2011) or even the more budget-conscious Impala lawyer. Perhaps, or possibly that is more Hollywood pablum.
But, the lawyer with the tavern phone "wandered in and out of the courtroom, cross-examined virtually no witnesses and presented no evidence to support a lesser penalty than death." Now, there are tactical decisions in any trial. Any good attorney will admit that how many witnesses to call, and what questions to ask are difficult decisions. It is never formulaic, and never easy to try a case. But it is very unlikely that "no evidence" is the right amount.
Despite the need to be tactical and discerning, counsel must be present (as many an ad has noted over the years "you must be present to win"). Being in the room is critical and foundational. It is difficult to imagine any reason for not being present. The absence from the courtroom is a significant problem as is the failure to cross-examine thoroughly. I noted in If you are not Perry Mason, Bring Evidence (May 2013), you could win merely by destroying your opponent's case through exceptional cross-examination. However, that is not likely, not the way to bet.
In this case, there is a salacious element also. The co-defendant (Humphrey), "who testified against Wilson identifying him as the killer" was involved in an intriguing courthouse romance. No, she was not dating the presiding judge. However, she "was taken each day of the trial to the chambers of another judge, where they had sex." Well, as Meredith Willson noted years ago, perhaps "ya got trouble folks. Right here in River City."
Yes, a witness in a capital case in coitus contemporaneous with one of the presiding judge's peers down the hall. The impropriety reeks and the appearance of impropriety is even worse. Canon 2, Code of Judicial Conduct ("A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities"). Did the trial judge know? Do judges talk among themselves?
The next red flag in this situation, according to the Enquirer is that the defendant, Wilson, told the trial judge he believed his two attorneys to be incompetent or inadequate. The defendant "represented himself during parts of the trial." For example, delivering his own opening and closing statements.
His opening? He allegedly said, simply, "I am not a lawyer, and I’m not guilty.” His closing? Apparently, the transcript of his pro-se closing was "less than two pages" compared to the 54 pages presented by the prosecutor. And he was on trial for his life.
One might conclude that this defendant was not competently represented. One might criticize his tavern phone lawyer. However, might one question the trial judge? Whose job is it to assure that there is protection of due process in the proceedings?
We like due process. I have noted, "We like it so much we put it in the Constitution twice." See Constitutional Challenge Recap and Overview (March 2016). Both the 5th and the 14th Amendments enshrine due process. We have an expectation that sufficient process will be afforded.
That is a challenge in balancing the provision of due process. Due process is essentially the opportunity to be heard. The constitution does not require one to have an attorney, less so a competent one. The law allows the opportunity to be heard but does not require that one take advantage of that opportunity.
Any party is free to represent him or herself. Thus, we see many litigants who decide to do so. They face significant challenges, complexities, and technicalities. I have seen a layperson prevail against an attorney. Despite the challenges, their choice to represent themselves must be respected in general.
Too many judges do not respect that right to choose. Too many wring their hands and continue proceedings repeatedly, or indefinitely, in some hope that the party will rethink and hire counsel. Questioning the party's informed decisions is not the judge's job.
Making sure the party understands the implications and potentials of such a decision is the end of our responsibility. We appropriately tell people that they are in a challenging, complex, and difficult process. We remind them that they face sophisticated attorneys (which some mistakenly misinterpret as our endorsement of such attorneys or their arguments). It is not ours to represent them, to contradict them, or to choose for them. But we must make sure they make informed choices.
In a criminal prosecution, though, there is also the Sixth Amendment right to counsel. That is not a label, "counsel," but implies at least that counsel will be competent, what we have come to refer to as "effective." Many an appeal is pursued based on the "ineffective assistance of counsel." How can you be both competent and absent? If you hired a physician to do your surgery, and she or he was not present in the room, would that be an effective surgeon? Would you watch her leave the operating theater and then take up the scalpel yourself?
One might indeed criticize the trial judge in this instance. One might question whether assistance was competent, and conjecture that the shortcomings noted in the Enquirer had to be apparent and obvious to the trial judge. But, as the advocates for Ms. Pooley note now, mentioned by Spectrum News, the conviction has been upheld through the appellate process. As troubling as one might find the attorney work (or absence) cited, it appears it was up to the standards we abide by?
One of those appellate judges felt differently. Dissenting from an appellate decision, one federal judge was critical of "the unfairness and abysmal lawyering." But his dissent is a quiet criticism heard perhaps by no one, or perhaps only by the Governor that commuted the death sentence. There is some tendency perhaps to doubt the efficacy of the due process and Sixth Amendment in this story.
There must be sympathy in this story for the victim of the crime and the many she left behind. She is a reminder for us all that violence exists in our world and ultimately life is short and fragile. In our considerations, such victims must remain prominent. Prosecutors, police, and more must be diligent and energetic in protecting the public. The Law must protect such victims. However, the judge's role must fulfill the obligation that adjudications provide meaningful due process. The judge is no prosecutor, no advocate, no cheerleader.
The judges in this instance concluded that the constitutional guarantees were met. But one might wonder whether due process really delivered? In any legal proceeding with pro-se parties, there must be some degree of deference. Not in the manner of a judge favoring that party, but in patience and explanation. The judge must remain neutral, and impartial. But, the judge is responsible for the proceedings, and for the party being fully informed.
Did the trial judge in this instance notice that the attorney was leaving the courtroom during the trial? Did the judge notice the defendant was delivering his own opening and closing statements? If the attorney was not expected to be present and participate, then why did the judge bother with pleading for and appointing an attorney in the first instance? Was the attorney who failed so miserably reported to those who license attorneys in that state?
Did the judge advise the defendant, counsel the attorneys, or otherwise support due process? Or, was he "asleep at the switch?"
