Kentucky death-row inmate's trial littered with problems

· By Andrew Wolfson • awolfson@courier-journal.com • Louisville Courier Journal - September 7, 2010

·

The judge posted his plea on the courtroom door: “PLEASE HELP. DESPERATE. THIS CASE CANNOT BE CONTINUED AGAIN.”

After more than a year of begging for lawyers to defend Gregory Wilson's capital-murder case for the maximum state fee of $2,500, Chief Kenton Circuit Judge Raymond Lape Jr. finally found two takers in May 1988.

But one of them, John Foote of Florence, had never tried a felony, let alone a murder case. And the other was William Hagedorn of Newport, a “semi-retired” lawyer who volunteered to serve as lead counsel for free, though he had no office, no staff, no copy machine and no law books.

Hagedorn practiced out of his home, where he displayed a flashing “Budweiser” sign. His business card gave the phone number of “Kelly's Keg,” a local bar. And as Foote would later say in an affidavit, Hagedorn “manifested all the signs of a burned-out alcoholic.”

After an unusual trial in which Wilson sometimes represented himself, while at other times yielded to Hagedorn, who came and went from the courtroom, Wilson was convicted in September 1988 of the abduction, rape, robbery and murder of Debbie Pooley, 36, an assistant restaurant manager in Newport, and sentenced to death.

Years later, it would be revealed in court papers that Wilson's co-defendant, Brenda Humphrey, who testified against him, was taken each day of the trial to the chambers of Lape's colleague, Circuit Judge James Gilliece, where they had sex.

His trysts with the former prostitute began three years earlier and continued until his death in 1993. Gilliece wrote Humphrey 280 sexually explicit letters in which he called her his “doll baby” and assured her — erroneously, it turned out — that “you are sure to be free very soon.”

Instead, she was convicted of kidnapping and facilitation to rape and murder and is serving a sentence of life without parole for 25 years.

Now Wilson, after 22 years on death row, is scheduled to be put to death by lethal injection Sept. 16 at the Kentucky State Penitentiary at Eddyville.

After two motions to stay his execution were denied last week, including one that claimed he is mentally retarded, his fate rests with Gov. Steve Beshear, whom Jefferson County Public Defender Dan Goyette will ask to spare his life on the grounds that capital defendants should have the right to “qualified counsel, not just any counsel.”

In an interview, Goyette said Wilson's trial was a “complete farce and a mockery.” In a brief, one of Wilson's previous lawyers likened the appointment of Hagedorn, who died in 1991, to “drafting a chiropractor to do brain surgery.”

And Stephen Bright, president and senior counsel for the Southern Center for Human Rights, who has written about the case, said in an e-mail that it is a “travesty of justice” and among the worst examples he's ever seen of a defendant tried for his life with unqualified counsel.

But a succession of courts have upheld the conviction and sentence, citing overwhelming evidence that Wilson raped and murdered Pooley, then left her naked corpse in a berry patch.

The late Kentucky Supreme Court Justice Charles Leibson said in 1992 during oral arguments in the case that the proof was so strong that famed criminal defense lawyer “F. Lee Bailey couldn't have done any better.”

And retired Kenton Commonwealth's Attorney Donald Buring, who won the death sentence against Wilson, said in an interview that Wilson is “as deserving — if not more so — of that sentence of any individual I have ever encountered. There is no question he was the killer.”

Allison Martin, a spokeswoman for Attorney General Jack Conway, said: “The fairness of Gregory Wilson's trial has been upheld numerous times in the state and federal courts,” adding that the sentence of death was determined by a judge and jury who listened to all the evidence.

Appellate courts also have rejected Wilson's claim that he was prejudiced by the fact that Humphrey, who identified him as Pooley's killer, was having sex during the trial with a good friend of the trial judge — who was himself a judge.

The state Supreme Court found that while the affair was inappropriate, there was no evidence that Lape knew of it or that his handling of the case was affected by it.

Goyette acknowledges that a reprieve from Beshear is unlikely, given that the governor, faced with Kentucky's shortage of one of the key drugs used in lethal injections, picked Wilson as the first of three inmates to die and gave his counsel only 22 days to make his plea for clemency.

Wilson's best hope may be that Beshear will decide that the execution is unacceptable given the embarrassment the case already has caused.

Debbie Pooley's father, Walter Pooley, died in May. Her 86-year-old mother, Anne, didn't respond to a letter sent to her home in Hamilton, Ohio.

But in a statement released through the attorney general's office, the family said it will be “eternally grateful” to everyone, including the governor and the attorney general and his staff, in bringing justice for Debbie Pooley's murder.

The statement said their lives “were forever changed on May 29, 1987, when she was thoughtlessly taken from them and denied the opportunity to live her life and fulfill her dreams.”

'You have to die'

The case began with Debbie Pooley's disappearance on May 29, 1987.

An assistant manager at Barleycorn's Yacht Club restaurant in Newport, Pooley, originally of Hamilton, Ohio, was “without a trouble in the world,” according to the testimony of a friend who was the last person to see her alive that day.

“To say she was bubbly would be an understatement,” recalled Joe Heil, owner of the now-defunct eatery.

Wilson, 30, had been released from an Ohio prison 10 months earlier, after serving about 13 years on two convictions for rape. He had begun dating Humphrey, a 34-year-old prostitute and twice-convicted felon, in November.

She testified later that they were looking for somebody to rob when they abducted Pooley, forcing her to drive them away in her 1980 Plymouth Champ. Humphrey said Wilson raped Pooley in the back seat, and then tied her hands with a lamp cord as she pleaded for her life.

“You have seen us, you know who we are and you have to die,” Humphrey told her, according to the testimony of a friend to whom she later confessed. Humphrey said Wilson robbed and strangled Pooley before they crossed the state line into Indiana, then dumped her body in a thicket in Pittsboro, west of Indianapolis.

They went on a shopping spree in two states with Pooley's credit card, buying wristwatches at a Kmart and spending the night at a Holiday Inn in Crawfordsville, Ind., where two maids later identified them.

Humphrey later tearfully confessed the crime to her best friend, Beverly Finkenstead, who called police.

Pooley's car eventually was found in Northern Kentucky. Head and pubic hairs were found in the back seat similar to Wilson's, police said.

Pooley's body was found on June 15, 1987.

'A troubled lawyer'

Charged with capital murder and declared indigent, Wilson initially was represented by one of the state's most acclaimed death-penalty lawyers, Kevin McNally, of the Department of Public Advocacy.

But McNally later resigned from the agency and withdrew from the case — and no one would take his place for the $2,500 the state then paid to lawyers who represented poor defendants charged with capital offenses.

Finally Hagedorn, a friend of the judge, stepped in, and Foote agreed to help him.

As Goyette later summarized it in court papers, Hagedorn “was a troubled lawyer with drinking problems, bar association disciplinary problems and legal problems of the criminal variety,” investigated on allegations of hiding stolen property under his office floor.

“Even if he was not drinking ... he would ramble and digress,” Foote said. “He seemed incapable of having a meaningful discussion about the case.”

According to briefs later filed on Wilson's behalf, Hagedorn visited his client once in jail before trial. He failed to investigate evidence collected by police, including a knife-like letter opener owned by Humphrey, to see if it was stained with blood.

Hagedorn also failed to interview a jailhouse informant who claimed Wilson had confessed. And he neglected to interview or subpoena Humphrey's sister, who had told police that Brenda Humphrey had admitted cutting the victim's throat.

Perhaps most egregiously, Goyette said, Hagedorn failed to prepare early for the penalty phase of the trial, so that family members who later said they would have testified on behalf of sparing Wilson's life were never contacted.

'I am not a lawyer'

For the first two days of jury selection, Wilson allowed Hagedorn and Foote to represent him.

But he continually complained they weren't competent.

Lape, the trial judge, ordered the lawyers to assist Wilson during the trial, but they came and went, according to witnesses, one of whom estimated that Hagedorn was present less than half the time.

Wilson delivered his own opening statement. According to a transcript, it read, in its entirety: “I am not a lawyer, and I'm not guilty.”

For the first two days of trial, Wilson questioned none of the prosecution witnesses.

“I don't know how to question,” he said.

He didn't challenge Humphrey's testimony that he strangled Pooley, and he didn't call as a witness her sister, Lisa Mains, who had told police that “Brenda said she was the one that cut her throat.”

Neither Wilson nor Hagedorn cross-examined the two other key prosecution witnesses, Finkenstead and Willis Maloney, the jailhouse witness, and the jury never learned that Maloney once dated Humphrey and allegedly beat her for dating Wilson.

Wilson allowed Hagedorn to cross-examine several expert witnesses, and he did so effectively, the Kentucky Supreme Court would later find.

He got one expert to admit he couldn't establish the cause of Pooley's death and found no evidence she'd been raped, and one of the Holiday Inn maids to concede she couldn't remember anything about the man she said was with Humphrey other than that he was black.

But trial records show Hagedorn was missing from the courtroom during the direct examination of the forensic pathologist, and later had to ask the judge to summarize that witness's testimony before his cross-examination.

Wilson gave a closing argument that took 1½ pages to transcribe; the prosecutor's took 54.

Ulterior motives alleged

In court papers and interviews, prosecutors say that death-penalty foes conspired to turn Wilson's case into a farce so he could eventually avoid execution by claiming his lawyers were ineffective.

Assistant Attorney General David Smith and Buring, the retired commonwealth's attorney, said the Department of Public Advocacy and “the anti-death penalty network” exploited Wilson's case to pursue its agenda, which also included higher fees in capital cases and classification of such representation as a specialty.

While Smith wrote that the attorney general's office doesn't “begrudge legitimate efforts by the defense bar” to lobby for higher pay or new laws, it was wrong to “deliberately jeopardize a capital defendant's life for the sake of making a point.”

Foote, who now does exclusively bankruptcy law, said in an interview that “there was interference from other lawyers for political reasons.”And Goyette, who was appointed to represent Wilson because of conflicts of interests on the part of the Department of Public Advocacy, acknowledged that Wilson was used to advance other causes, which “was not appropriate at all.”

Edward Monahan, a public advocate with the Department of Public Advocacy in Frankfort, said the department's attorneys have “one responsibility, to ethically and effectively represent their clients.”

“DPA would not and does not approve of an attorney using a client's case to advance a cause,” he said in a statement.

'A right to counsel'

In his first appeal to the Kentucky Supreme Court, Wilson's lawyers asked: “Would even one justice have agreed to place his life in Hagedorn's hands?”

But writing for a unanimous court in 1992, Justice Donald Wintersheimer said that to the extent Wilson would let them represent him, Hagedorn and Foote were effective.

The court said that by refusing counsel yet claiming he couldn't represent himself, Wilson put Lape between a “proverbial rock and a hard place.”

Wilson's arguments also fell on deaf ears in the 6th U.S. Circuit Court of Appeals, where Judge Danny Boggs of Louisville wrote in 2008 that because Wilson refused help from Hagedorn and Foote, he couldn't then claim they were ineffective.

“Indigent defendants have a right to counsel,” Boggs wrote for a three-judge panel, “but not the right to counsel of their choice.”

The second prong of Wilson's post-conviction defense didn't emerge until 2001, when Humphrey filed a motion seeking a new trial, revealing her relationship with Gilliece. She argued that he forced himself on her and that kept her from getting effective representation.

Humphrey testified that after being charged with prostitution in 1985, she began seeing Gilliece about once a week in his chambers for sex, even after she was charged in Pooley's kidnapping and murder.

Records showed that Gilliece put $3,000 in her jail account, bought her a new dress for trial and wrote her florid love letters.

Kenton Circuit Judge Steven Jaeger eventually rejected Humphrey's motion, saying she was a “willing participant” and “mistress of her own fate.”

Jaeger, however, wouldn't let Wilson participate in the hearing he granted Humphrey, and Goyette says that denied Wilson the chance to prove that the relationship between Gilliece and Humphrey may have affected how Lape conducted the trial.

If Wilson had known of the relationship at the time of the trial, Goyette said, he could have used it to undermine Humphrey's credibility when she testified against him.

In an interview, Lape, who is 83 and retired, said he didn't know about the relationship between Humphrey and Gilliece until five years after Gilliece's death. And Buring noted in an interview that he sought the death penalty against Humphrey

“It's not like I gave her a pass,” he said.

Seeking forgiveness

After 22 years in prison, Gregory Wilson is a changed man, according to Goyette and others who have visited him, including a minister who says Wilson converted to Catholicism and is a devout believer. One of his three regular visitors is a nun from Louisville.

“He talked about his past like the person he used to be is a foreign entity,” said the Rev. Gerald Otahal of Owensboro. “He is very repentant and a sweet spirit. If there was ever the genuine article, he is it.”

Joe O'Cull, the penitentiary's former chaplain, also said Wilson is remorseful.

“In correspondence as recent as yesterday, Gregory continues to uphold his faith and seek forgiveness,” O'Cull said in an e-mail Wednesday.

Goyette said Wilson has reached out to younger relatives to steer them away from the life of crime he chose, and that he has been a model prisoner. Corrections Department records confirm he has had no serious violations.

“He is a totally different guy that the person we met when we first took over the case in 1992,” Goyette said.

Goyette said Wilson wants to live, though Otahal said that in a recent message he didn't seem afraid of his looming execution.

“I don't fear anything about where my mortal life is headed,” Otahal said Wilson wrote. “Christ is my savior and I am strong in my faith.”

Reporter Andrew Wolfson can be reached at (502) 582-7189.