Wednesday, September 15, 2010

Matters of life and death

NMC has three posts (thus far) on what should be the judicial shocker of the year in Mississippi: James T. Kitchens, Jr., a sitting circuit judge (not the plaintiffs'-lawyer-turned-Justice Kitchens), gave false testimony (= "lied"?) as an assistant DA and lied again in a PCR hearing after his accession to the bench, all in an effort to send a murderer to the death chamber.

Judge Mike Mills, himself a Miss. Supreme Court justice before taking a seat on the federal bench, has vacated the death sentence in Quintez Hodges' case and ordered a new trial on sentencing.
ADA Kitchens was called in rebuttal to the testimony given by Petitioner and his mother. (See id. at 1025). He stated that he had met with Petitioner’s attorney on the prior burglary charge, and that the defense attorney informed him that Ms. Tatum did not want Petitioner to go to prison. (See id. at 1026-27). ADA Kitchens testified that he then spoke to Ms. Tatum, and she confirmed that those were her wishes. (See id. at 1027). He testified that Petitioner put on witnesses to ask for a more lenient sentence, and that the State requested a sentence of fifteen years. (See id.). * * *

In closing argument, the prosecutor argued that Petitioner had already been given “a huge measure of grace” . . . “whether he wants to acknowledge it or not” because of Ms. Tatum’s intercession, and that he killed her son “after being given a second chance of monumental proportions.” (Trial Tr. Vol. 20, 1077). * * *

The testimony of Mr. Kitchens at Petitioner’s trial and in this Court is factually at odds with what is contained in the record, and DA Allgood should have known that the testimony given by ADA Kitchens was false. * * * The Court notes that
the first statement made by the court that sentenced Petitioner on the prior burglary plea is that “[t]he State has made no recommendation as to a sentence. . .” (Evid. Hr’g Ex. 4, 16). Also, there is no indication anywhere in the record that Petitioner’s attorney, Mr. Bambach, ever spoke to Ms. Tatum in person or that she expressed to him a desire that Petitioner not go to prison. (See Pet. Memo Ex. 4, 10-12). Moreover, ADA Kitchens, having been given notice that he would likely give testimony about this prior plea at the sentencing phase of a capital murder trial, apparently took no measures to ensure that he had an accurate recollection of what transpired. (See Evid. Hr’g Tr. Vol. I, 32; 52; 65). Even if Ms. Tatum stated that she did not want Petitioner to go to the penitentiary, that statement was never made in open court. Therefore, even if it occurred, it occurred off of the record and outside of Petitioner and his mother’s presence.

* * * In this instance, the State, seemingly unconcerned with the accuracy of the testimony to be given in a trial where the result could be death, provided the jury with false information. That information was elicited to show that Petitioner is a remorseless liar who was shown kindness that he refused to acknowledge and which he repaid by murdering the son of the woman who extended it. In light of these facts, this Court concludes that there exists a reasonable probability that this testimony affected the jury’s judgment.
No word yet of any reaction by Allgood or Kitchens, both of whom should resign immediately.

The case also involved a faulty instruction on the possibility of parole and a mentally unstable defense attorney who was using drugs and generally breaking down during the trial, but it's the cold-blooded presentation of false testimony in a deliberate effort to kill a man that makes Judge Mills's opinion so shocking.

Let's not overlook, however, the procedural games played by the Mississippi Supreme Court in its own zeal to affirm the sentence. First, the MSSC denied a moiton to supplement the trial-court record with the transcript of the plea hearing; then on PCR review, with the transcript before it, the court held the issue previously resolved:
Petitioner’s trial counsel would have had no reason to believe that they would need an actual transcript of Petitioner’s prior burglary plea at the capital murder trial in order to correct the State’s presentation of false testimony. To the extent cause and prejudice are required to overcome the determination that this claim is barred for counsel’s failure to contemporaneously object, Petitioner has established same. See, e.g., Coleman, 501 U.S. at 750. Moreover, the failure to consider the plea transcript on direct appeal and then determining the issue res judicata on post-conviction review is a Catch-22 that has improperly denied Petitioner a fair opportunity to present his claim.
This same week, the Clarion-Ledger reports on three men in Mississippi prisons who've been exonerated by DNA evidence in the same crime: Bobby Ray Dixon and Phillip Bivens, who served 32 years in prison; and Larry Ruffin, who served only 23 years ... because he died behind bars in 2002.
... the eyewitness in the case, Patterson's 4-year-old son, told authorities there was one assailant, not three. Dixon and Bivens had pleaded guilty and fingered Ruffin as the rapist after allegedly being beaten.
The actual rapist, Andrew Harris, is serving a life sentence for another rape he committed two years after the State of Mississippi helped him evade conviction of the rape and murder of Eva Gail Patterson. Nice work.

... Beating black guys to make them confess is a time-honored Southern tradition, but it's not always necessary, as the NYT reports:
New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

An article by Professor [Brandon] Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation. . . .

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”
(H/t Adler.)

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