Janet Reno’s fatal decision

The attorney general must soon decide whether to try to save a possibly innocent man from the electric chair -- or leave the case for an incoming administration unlikely to do so.

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Does Attorney General Janet Reno really want to allow David Ronald Chandler to become the first person executed under federal law since 1963? That’s a question the nation’s top law enforcement officer has had several months to ponder. She faced a Dec. 27 deadline to make up her mind, but then filed for an extension. Now, she has until Jan. 20, when she leaves office.

And based on her own professed beliefs about criminal justice reform, this case is likely making for a wrenching decision as her eight-year term comes to a close.

Chandler, a 48 year-old former marijuana grower from Alabama, was convicted in 1991 on murder and drug conspiracy charges. His case is exceptional for several reasons, not the least of which is that he may be innocent. When the 11th Circuit Court of Appeals voted last summer to uphold his conviction and death sentence by a 6-5 vote, the majority acknowledged that “the evidence of guilt [on the murder charge] was not overwhelming,” a standard of guilt even some death-penalty supporters should have a hard time swallowing.

Reno, on her own, cannot stop Chandler’s execution. What she can do is suggest giving him a new sentencing hearing that would probably result in a reduced sentence of life in prison. Reno, as many are quick to point out, has said that she opposes the death penalty. But Chandler’s case likely is causing the attorney general grief for other reasons. Even though she is not being asked to consider the specific question of Chandler’s innocence, ultimately, it is hard to ignore.

Reno knows that 90 innocent people have been released from state death rows since 1973. With the federal government preparing to resume executions after a nearly 40-year hiatus, she no doubt wants to avoid any possibility that a federal execution — particularly the first federal execution — might proceed where there is even a remote question of innocence. Chandler’s case is not reassuring on that score.

Chandler’s conviction rests almost entirely on the word of a single witness, Charles Ray Jarrell Sr., who told a jury that Chandler had offered him $500 to murder Marlin Shuler in May 1990. That Jarrell himself was the actual triggerman wasn’t in dispute.



But after Chandler’s conviction in April 1991, Jarrell changed his story, claiming instead that he alone was responsible for the murder. Jarrell said that he killed Shuler because Shuler raped Jarrell’s sister in front of Jarrell’s mother, in addition to assaulting the mother on numerous occasions. Today, Jarrell says he lied at Chandler’s trial to escape a death sentence, because the feds agreed not to pursue allegations against his son (who, Jarrell says, they threatened with a death sentence in connection with Shuler’s death) and because he was pressured by prosecutors to implicate Chandler. Jarrell also admits that he had tried to kill Shuler on a previous occasion, but that his gun misfired.

Jarrell knew that, in changing his story and claiming full responsibility for the murder, he would have subjected himself to a possible death sentence. Still, U.S. District Judge James H. Hancock didn’t buy Jarrell’s new version. Hancock, who presided over Chandler’s original trial, also heard his initial appeal and rejected Jarrell’s revised testimony as “unworthy of belief.” Hancock concluded that “Jarrell’s memory is impaired” both by excessive alcohol and from a rattlesnake bite that nearly killed him, and that Jarrell’s demonstrated “disregard for the truth speaks poorly about the credibility of his testimony.”

Whether Chandler was involved in the murder of Marlin Shuler may never be known. Although Jarrell has recanted his original testimony, he testified that Chandler did help him dispose of the body. And the state presented evidence suggesting that Chandler may have provided the weapon used in the murder.

But in upholding Chandler’s death sentence, Hancock essentially endorsed the credibility of Jarrell’s initial testimony fingering Chandler. When Hancock decided that Jarrell could no longer be trusted, Chandler’s only chance for a first-person alibi seemed to go with it: Jarrell, the only available eyewitness to the crime, had now been pronounced a liar.

That’s why the case has arrived on Reno’s desk. Having nowhere to go with his innocence claim, Chandler is now asking the U.S. Supreme Court to hear his claim that he was denied effective counsel during his sentencing hearing. Normally, the attorney general would simply follow the lead of her U.S. attorneys, who brought a successful prosecution and won a conviction. Should Reno buy Chandler’s argument, she must take the politically dicey course of undermining the work of her own prosecutors.

But several factors argue in favor of Reno’s taking this course. Most importantly, by refusing to intervene, she will almost certainly seal Chandler’s fate. Without Reno’s intervention, the Supreme Court could easily ignore Chandler’s appeal, in which case the conviction and death sentence would stand. Reno could ignore the case and leave it for the next attorney general under President George W. Bush. But Reno knows that leaving the condemned man’s fate to Bush would be tantamount to flipping the switch. It is far less likely that a Bush administration would question a death sentence and, assuming it did not, Chandler’s only recourse would be to appeal to Bush for clemency. That would appear to be a nonstarter. As governor of Texas, Bush presided over a record-breaking 152 executions and granted clemency in only one death case, when the evidence of non-complicity was overwhelming.

Bush has signed off on several executions where serious questions of innocence were involved and has never acknowledged a single due process violation in a death penalty case, despite numerous questionable examples that were widely publicized by the media.

Unlike Bush, who has vetoed legislation to expand public defender services and reduce conflicts of interest among court-appointed attorneys representing poor criminal defendants, Reno has taken on the right to counsel as her own personal cause célèbre, speaking out more forcefully on the issue than any other recent top justice official.

“Our system will work only if we provide every defendant with competent counsel,” Reno said earlier this year at the second of two national conferences she sponsored on the subject of defense representation for the poor. In those remarks, Reno noted a study released earlier this year by a Columbia law school professor that found that nearly 40 percent of all death penalty convictions overturned between 1973 and 1995 were reversed because of ineffective assistance of counsel. “In recent months, the American people have begun a national conversation about innocent people who are wrongfully convicted, and about the importance of competent counsel in the criminal justice system,” Reno told a gathering in Washington in June.

Reno probably couldn’t find a better case of questionable counsel than Chandler’s. His own trial attorney has testified under oath that he had done “basically not anything explicitly” to prepare for the sentencing phase of his client’s trial. The only thing he did was to tell Chandler’s wife, Deborah, minutes after her husband was convicted, “to find someone to stand up for Ronnie tomorrow” at his sentencing hearing. As a result, the only testimony to Chandler’s character the jury heard came from Chandler’s wife and mother. They proved no match for the prosecutor, who described Chandler as “a thoroughly dangerous man” and dismissed the testimony of Chandler’s mother, arguing that even “Jack the Ripper had a mother” and “Charles Manson had a mother.”

What the jury never heard were the 27 character witnesses who later testified under oath before Hancock that Chandler had a reputation as an unusually kind and charitable person who would often provide groceries, lunch money, shoes and clothing to poor families in the community; that he gave poor families money to buy Christmas gifts for their children; that without being asked he built a porch and ramp for a handicapped man to make it easier for him to get into his house and supported a woman after her husband died, offering her free housing for as long as she needed it. Nevertheless, Hancock denied Chandler’s request for a new sentencing hearing.

When the case next went to a three-judge panel of the 11th Circuit Court of Appeals, the majority found that the performance of Chandler’s lawyer “fell below the standard of reasonableness required by the Sixth Amendment” and that there was a reasonable probability that “Chandler would not have received the death sentence” had the jury heard “even a small portion” of the “many specific stories and instances of individual acts of kindness and generosity.”

But the full court not only overruled the panel but laid out a new standard for evaluating effectiveness of counsel so thoroughly riddled with loopholes that it would, if upheld by the Supreme Court, make it nearly impossible for any defendant to claim that he had been poorly represented.

The standard of effectiveness described by the court’s 6-5 majority turns not on what a “particular defense lawyer in reality focused on and, then, deliberately decided to do or not do,” but rather on a “presumption that what the particular defense lawyer did at trial — for example, what witnesses he presented or did not present — were acts that some reasonable lawyer might do.” In Chandler’s case, the majority concluded that it didn’t matter that his lawyer failed to present any serious mitigating evidence. The only thing that mattered was that a “hypothetical” lawyer might have “reasonably” decided to defend his client in that same fashion.

In his dissent, Judge Gerald B. Tjoflat seemed to state the obvious: “It seems to me that in determining whether a defense attorney provided ineffective assistance of counsel, what the attorney did, and why he did it is important. The majority seems to be disregarding what [Chandler's attorney] did, and why he did it; instead imagining what a hypothetical lawyer would have done under the circumstances.”

In a separate dissent Judge Rosemary Barkett wrote that to find Chandler received adequate counsel when the attorney admittedly did “nothing to investigate mitigating evidence” was contrary to a Supreme Court ruling that found a defense lawyer in a capital case is “obligate[d] to conduct a thorough investigation of the defendant’s background.” According to Barkett, “Legally, a lawyer who does absolutely nothing to prepare for the penalty phase, even if he adequately prepares for the guilt phase of trial, is constitutionally ineffective.”

And that is the hook Reno needs to grab if she is genuinely concerned about preserving the right to effective counsel. The existing Supreme Court standard is already notoriously weak: The so-called Strickland rule allows lower courts to routinely rule against ineffectiveness claims by arguing that an attorney’s incompetence did not decisively prejudice the jury’s decision.

Reno knows full well that instances of incompetent counsel in criminal cases are rampant. Nancy Gist, director of Reno’s Bureau of Justice Assistance, estimates that “hundreds of thousands” receive ineffective legal counsel every year. “A gross injustice is being done every day across this country with the rights of indigent criminal defendants,” Gist told me earlier this year.

The possibility that the standard for effective counsel could be even further undermined is surely sticking in Reno’s craw. Reno knows that if she refuses to intervene and the Supreme Court upholds the 11th Circuit, she will have to live with the fact that it will be virtually impossible for any defendant to prove a lawyer was ineffective so long as the lawyer was breathing. If on the other hand, the Supreme Court simply refuses to hear the case, Reno knows the right to counsel will have been seriously undermined in the 11th Circuit jurisdiction, including Alabama, Georgia and her home state of Florida.

Either way, Reno would leave office knowing that the federal courts could end up executing a possibly innocent man at a time when evidence of egregious miscarriages in the application of the death penalty are reported with surprising regularity. And she will have done nothing to stop it.

Alan Berlow is the author of "Dead Season: A Story of Murder and Revenge." His writing has appeared in the The New York Times Magazine, Atlantic Monthly and Harper's.

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