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Fall 2001

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Holly Wood and the death penalty

by John J. P. Howley ’80 and Beau Breslin

     Holly Wood is not a place. He is a mentally retarded black man—first name Holly, last name Wood—currently on death row in Alabama. He was convicted of shooting to death the mother of his child after he found her with another man, and he has been sentenced to die.

     Imagine for a moment what would happen if a rich and famous person in Hollywood, the place, were accused of a similar crime. Would the prosecutor seek the death penalty? Would the rich and famous person be sentenced to die? Not likely.

     In Hollywood, prosecutors do not usually seek the death penalty against wealthy men suspected of killing their lovers. Wealthy people hire experienced lawyers and forensics experts, who are indispensable in preparing a defense—especially if one is innocent. Before trial, this legal team would attempt to convince the prosecutor not to seek the death penalty. Failing that, they would put on a full challenge to the prosecution’s case at trial and ensure that the trial is conducted as it was meant to be under the Constitution.

     Holly Wood has a different story. This mentally retarded man with the equivalent of a third-grade education could not afford a lawyer. The state of Alabama assigned him counsel, whom it paid $20 per hour. By the time the jury heard the case, however, the state had stopped paying Wood’s counsel for any out-of-court work, because the legal fees had already reached the state-mandated limit of $1,000.

     At the penalty phase when the jury was asked to decide between life and death, Wood was represented by a twenty-seven-year-old lawyer who was appointed to represent him only four months after being admitted to practice law. This lawyer had just started a “general practice” in a small Alabama town, where he handled real estate, contracts, uncontested divorces, traffic tickets…. He had never before represented a criminal defendant, let alone a criminal defendant facing the death sentence. He had no trial experience. And the state stopped covering any out-of-court work before he even started preparing for the deliberations that would decide whether Wood would live or die.

     Not surprisingly, the penalty phase of Wood’s trial took less than an hour and a half, with most of that time used by the prosecutor.

     Just for fun, let’s try an experiment. Let’s give Wood a team of experienced criminal defense lawyers and forensics experts like the one a wealthy man in Hollywood would hire, and we’ll see if prosecutors can convince a Los Angeles jury to sentence Wood to death. Then let’s take a wealthy man from Hollywood who is accused of similar murder, give him a $20-per-hour lawyer with no criminal defense experience and cap his fees at $1,000, and we’ll see if a small-town jury in Alabama hands out a death sentence.

     Sounds unfair to the Hollywood murder suspect? It isn’t fair in Holly Wood’s case either. And it isn’t fair in the hundreds—yes, hundreds—of death-penalty cases that go unnoticed in this country every year.

     For all the talk about limiting the ultimate penalty to those convicted of the most heinous crimes, the fact is that we hand it out every week to members of minority groups, the poor, the mentally ill, and the mentally retarded. In too many cases, these death-row inmates were represented by lawyers who were inexperienced, unprepared, underpaid, and sometimes even asleep during the trial.

     U.S. Supreme Court Justice Ruth Bader Ginsburg recently acknowledged this when she noted in a lecture, “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well-represented at trial. People who are well-represented at trial,” she concluded, “do not get the death penalty.” Governor George Ryan of Illinois recognized this when he imposed a moratorium on executions after discovering that thirteen innocent people had been sentenced to die for crimes they did not commit.

     Thirty years ago, in Furman v. Georgia, the U.S. Supreme Court recognized that the death-penalty system in America was not working and halted executions until procedural safeguards could be developed to ensure fairness. The case was decided by a 5-4 vote, with two justices in the majority arguing for the abolition of the death penalty. The other three majority votes were cast by justices who thought the problem was the process, not the penalty. These justices reasoned that the death penalty was being imposed arbitrarily against some defendants—particularly the poor, minorities, and those who received inadequate representation—while wealthy defendants who committed similar crimes were spared.

     Although safeguards were developed that were supposed to end the arbitrariness of the death penalty, we still execute only the poor and the poorly represented. Nothing has changed in thirty years.

     It is time for all of us to face facts: the process for handing out the death penalty in America is seriously flawed, and the procedural safeguards developed after Furman are still not working. People who live in places like Hollywood can and should get competent counsel and an opportunity to challenge the prosecution’s case. They can and should challenge government lab tests and documents. They can and should conduct their own, independent investigations. But people like Holly Wood aren’t given the same opportunity.

     We must squarely address these injustices. We must ask ourselves, honestly, whether a system for deciding who will live and who will die can ever be made fair, equal, and reliable. And, until we have such a system, we must stop killing people.

John Howley ’80 is a partner in the law firm of Kaye Scholer in New York City. He is representing Holly Wood, pro bono, in proceedings seeking to overturn the death sentence. Beau Breslin, a member of Skidmore’s government faculty, directs the law and society program. Breslin and his students have provided research assistance for Howley in the Wood case and other death-penalty appeals.

 


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