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Decades of Effort Achieve Success in Death Row

Monday, November 24, 2003

  • Skadden, Arps, Slate, Meagher & Flom

Decades of Effort Achieve Success in Death Row Case

Skadden Arps special counsel Ron Tabak played a key role in securing the removal from Georgia's death row last week of a man who had been there for over 26 years: Johnny Lee Gates, an African American who in 1977 was convicted and sentenced to death by an all-white jury for the November 1976 murder and rape of Katrina Wright.

The key "evidence" against Gates was a videotaped statement recorded at the crime scene after Gates was arrested two months after the crime.. The police had earlier arrested a white man for the murder, claiming he had given details that only the murderer could know. Despite an extensive search of the crime scene and the fact that Mr. Gates' "confession" said he had touched all kinds of things in the apartment, the only physical evidence tying Gates to the scene was his handprint on a heater in Ms. Wright's apartment, which most likely was placed there at the time of the videotaping, not at the time of the crime. Mr. Gates' "confession" said that he posed as a gas company employee, she told him she had called the gas company since her heater needed fixing, and that she had handed him a can of oil, which he used to work on the heater before telling her he wanted her money. However, there was no indication that the heater had needed repair or that the gas company had been called, no oil can was found at the crime scene, ballistics tests showed that the gun Gates had allegedly used could not have been the murder weapon, and the crime lab had thrown out all semen samples and other crime evidence a year after trial, while the case was still on direct appeal - so no DNA testing could now be done.

Ron agreed to work on the case pro bono in 1985, after Mr. Gates lost his direct appeal and state post-conviction proceeding, and his case was pending decision by a federal district court. In 1988, Ron argued Mr. Gates' appeal in the Eleventh Circuit. Although the Court concluded that Ron had presented a prima facie case that there was unconstitutional racial discrimination in significantly under-including African Americans in the jury pool, it held the claim had been waived when Mr. Gates' court-appointed public defender failed to raise it at trial. The Court also refused to hold that lawyer ineffective, even though he presented no evidence about Mr. Gates' background at the trial's sentencing phase, even though much such evidence was readily available.

Shortly after the Eleventh Circuit's holding, Ron and his co-counsel, George Kendall (originally of the ACLU of Georgia, then for about 15 years with the NAACP Legal Defense Fund, and as of a few months ago, with Holland & Knight LLP) attended a training program on mental retardation, and realized that they should look into the possibility that Gates is mentally retarded. Georgia had recently become the first state in the country to forbid the execution of retarded people. Reviewing his school records, they saw that he had failed the second and seventh grades and was held back both times, otherwise did extremely poorly in school, and had numerous behavioral deficiencies, such as coming to school with urine in his trousers, being unable to button his buttons or put his shoes on the correct feet, and being treated like a "monkey" by his contemporaries.

A psychologist retained by Ron and George administered Gates a battery of IQ tests and concluded he was the retardation range. Based on this, the school records, and interviews with people who knew Gates as a child, the psychologist concluded that Gates was mentally retarded. In 1992, a judge held that there was a sufficient showing of mental retardation to remand the case for a trial to determine whether Gates was mentally retarded. That trial finally took place this month.

In 1997, Gates was tested by Dr. Catherine Boyer (a psychologist who also has done work, including in a capital punishment case, for both of the prosecutors in Mr. Gates' case). Her testing, on the most modern IQ test, resulted in an even lower score than before: 69. Based on this and her extensive interviews of people who knew Gates before age 18 and of Mr. Gates, plus exhaustive review of his school, prison and health records, Dr. Boyer concluded early in 1998 that Mr. Gates is mentally retarded. However, two state psychologists (one of whom had only been certified a few months earlier) concluded in December 2001 that, based on their IQ testing of Gates a year and nine months earlier, Gates was not retarded, and that looking into his actual functioning, whether before or after age 18, was irrelevant.

At the trial, Ron handled the examinations of the defense's first witness, Professor Suzanne McDermott of the University of South Carolina, an expert on mental retardation who had never previously testified, and of Dr. Boyer. After three and a half trial days, two and a half were devoted to these two experts' testimony, the defense (which had the burden of proof) rested. The prosecution then presented its two psychologist witnesses, then showed the jury the videotaped confession (even though all four experts, including its own two, had testified that it was either entirely or almost completely irrelevant), and then presented for prison witnesses, all of whom testified that Mr. Gates was a well-behaved prisoner who had adapted well to prison life.

On November 12, 2003, one of Ron's co-counsel, former Columbus State Senator Gary Parker, was about to finish his cross-examination of the state's final witness - leaving only the rebuttal psychologist whom Ron was about to examine as the final witness in the trial - when something startling happened. In response to a routine question, as to whether this prison counselor had known Mr. Gates prior to age 18, the counselor said Mr. Gates was already on death row when he first met him This was particularly remarkable because, early in the trial, when the District Attorney was cross-examining one of Mr. Gates' family members about her supposed lying because of the high stakes of the trial for Mr. Gates, the judge had interrupted the questioning and told all counsel in the strongest possible terms that they were not to ask questions that could lead a witness to blurt out that Mr. Gates was on death row - which the jury was not supposed to know - or that this case would determine whether he could be executed. The judge furthered firmly instructed counsel to advise all their witnesses not to mention this. After the prison counselor's testimony, the judge carried through on his promise to declare a mistrial if such testimony occurred. The judge also noted that whereas all the defense witnesses, most of them lay people, had never mentioned that this was a death penalty case, a state correctional employee, who surely should have known better, had done so.

Following the declaration of a mistrial, an agreement was reached whereby Mr. Gates would receive life in prison without the possibility of parole but - unlike every other Georgia case in which such an agreed-upon disposition has been reached where that sentence did not exist at the time of the crime - Mr. Gates did not waive his right to challenge the constitutionality of his conviction.

Such a challenge may eventually succeed, if Ron and his colleagues can determine a way to overcome numerous procedural technicalities. Earlier on the day that the mistrial occurred, after viewing the videotape in open court outside of the jury's presence, the judge said the "confession" made absolutely no sense, and was probably the most ridiculous he had ever seen. He also said that Mr. Gates' due process rights were probably violated when the State destroyed all physical evidence of the crime while the case was on direct appeal - something he earlier said he had great difficulty believing, since nothing remotely similar had ever come to his attention in any other serious criminal case.

Prior to the mistrial, numerous people with no stake in the case - such as The court reporters who were transcribing the case from audiotapes of the trial - told Ron and his colleagues that they were putting on a terrific case and were clearly wining the trial. They believed that either all 12 jurors, or the vast majority, would find Gates to be mentally retarded. They said this after all witnesses except the prison witnesses - whose testimony was essentially irrelevant - and
Ron's superb rebuttal psychologist - had testified.

Ron states, "I was able at this trial to apply what I have learned from working with so many expert witnesses on LAO partner John Donovan's paying-client work, and this case also exemplifies how pro bono work can allow you to do things you would be most unlikely ever to do paying-client work."

Others at Skadden Arps who have worked with Ron on this case over the years include, former legal assistant, now Counsel, Maura Barry Grinalds, former associate Mark Lane; litigation associate Irene Ten Cate; former legal assistants Kirsten Schaars and Hether Pumphrey (who is now in our Boston office), and legal assistant Anne Schmidt (who participated actively at the trial).

Ron will be writing an article in the Toldeo Law Review about the case.

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