Exiled from Oklahoma

Sometimes the best defense is no defense.  That may be the moral of the story by Dan Barry in yesterday’s New York Times about James Fisher, who accepted a plea deal that freed him from death row after almost three decades behind bars, on the condition that he leave Oklahoma and never return.

This doesn’t mean he was guilty of the crime for which he was sentenced to die; after two grotesquely unfair trials, he had simply lost faith in the system’s ability to defend his rights.  And no wonder. 

The victim of the 1982 murder was a man who had allegedly solicited sex with Fisher, but Fisher’s trial attorney, E. Melvin Porter, has admitted that at the time “he considered homosexuals to be ‘among the worst people in the world.’”  He did nothing but undermine his client.

Fisher’s conviction and death sentence were overturned due to ineffective assistance of counsel (after 19 years), but his new lawyer at retrial, Johnny Albert, drank, abused cocaine and threatened Fisher (his own client) with physical violence.  Fisher stopped coming to the trial and was again convicted.

That conviction was also overturned for the same obvious reason, but rather than go through a third trial, Fisher accepted the deal and is now headed to greener pastures in Alabama, with the support of the Equal Justice Initiative

To get to something close to the truth, our adversarial system of justice requires a reasonably level playing field between prosecution and defense.  In reality, this almost never happens.  Particularly for poor defendants, the deck is almost always stacked against them, as court appointed lawyers are often overworked, underpaid and under-resourced, and, for complex capital cases, lacking in experience. 

Obviously not all residents of our nation’s death rows had legal representation as appalling as Fisher’s, but the vast majority of those sentenced to death could not afford their own lawyer at trial.  The failure to provide adequate defense for those the state is trying to kill is a national scandal, and yet one more reason the irreversible punishment of death should be stricken from the books.

Six Jurors Oppose Oklahoma Execution

Oklahoma has the opportunity to save a life on April 8, 2010 and it is our responsibility to take action to prevent another state killing.  Richard Smith was convicted of murder in 1987, and now has been on death row for more than half of his life.  Not only do six jurors from his trial now oppose his execution, but so does a brother of the victim. 

Similar to many other death penalty cases, Richard Smith was not given an adequate defense.  His lawyer presented almost no evidence, and no expert testimony.  He did not begin investigating until seven to ten days before the date of trial, and he failed to present evidence of Smith’s past abuse as a child, addiction problems, psychological problems, brain injury, and borderline intelligence. 

If the jury at the time of the trial had heard this evidence, the outcome of Smith’s case could have been significantly different.  The six jurors who now oppose his execution exemplify the very reason why we should act in the name of justice.  Due to Smith’s poor representation in trial, we must act to commute the death sentence of Richard Smith.

Executive clemency is in place so that justice can be upheld even when the courts drop the ball.  In the case of Mr. Smith, powerful mitigating evidence was never heard by a jury.  Justice would not be served by executing Richard Smith under these circumstances.  The Oklahoma Pardon and Parole Board should recommend that Governor Brad Henry commute this death sentence, and Governor Henry should accept that recommendation.