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Bar News - February 8, 2008


Inside the Death Chamber: A Look at NH Attorneys Representing GA Death Row Inmates

By:

 

Editor’s Note: This is the second and final part of a story about three Death Row inmates in Butts County, GA, who are being represented by NH attorneys. Part one can be found in the Jan. 18 issue of Bar News or at the Bar’s Web site, http://nhbar.org/publications/display-news-issue.asp?id=4262. 
 

“Teamwork will get you everywhere,” said one poster. “Work hard,” said another. They were the types of posters found in the office of any high school guidance counselor or in the break-room of any factory. So it was a strange sensation, said Nick Holmes, when he read them in the entryway of Georgia’s Death Row; a place where the last thing expected of the viewer is growth or learning.

           

Holmes is one of several attorneys from New Hampshire that have taken the cases of three of Georgia’s 107 death row inmates. Holmes’ firm, Nelson, Kinder, Mosseau & Saturley (Manchester), has a team of attorneys representing one inmate. Larry Vogelman of Manchester firm Nixon, Raiche, Vogelman, Barry & Slawsky is representing another, and Andru Volinsky of Manchester firm Bernstein, Shur, Sawyer & Nelson is representing the third. Many of Georgia’s capital appeals cases are taken by out-of-state attorneys since Georgia does not provide funding for attorneys once the defendant’s direct appeal is completed.

           

The NH attorneys interviewed agreed that representing someone sentenced to die is a singular experience. The job, they said, requires an entirely different perspective than that of other criminal defense work: the tactics are different; the setting is different and the stakes are different.

           

“In criminal defense work, the stakes are never minor. [Criminal defense attorneys] often say that the client’s life is in [their] hands,” said Larry Vogelman. “In cases like these, that takes on a whole new meaning.”

           

Taking on a capital defense case, after the guilt and innocence phase of the trial, is a harrowing experience, they said.

 

A Brief Summary of Cases

 

Jimmy Fletcher Meders, 46, was sentenced to death in April 1989 for the Oct. 14, 1987, robbery and murder of a convenience store clerk. Don Anderson, 47, was shot twice after being robbed of $38. Police say two men with Mr. Meders weren’t involved in the killing and they weren’t prosecuted.

           

Andru Volinsky, who’s represented Meders since 1989, believes that his client, a veteran and a drug-addict suffering from mental challenges, didn’t receive his constitutionally guaranteed adequate representation.

           

“In my case, the only representation for Meders’ during his trial was a semi-retired, 72 year-old public defender without an investigator. It was a four-day trial, including sentencing,” said Volinsky. “The jury didn’t know that this was Meders’ first offense and there were no experts called by the defender.”

 

David Scott Franks, 42, was sentenced to death in 1998 for the August 5, 1994 murder of Deborah Wilson, 35, and for injuring her two children, aged 13 and 9. The team of attorneys from Nelson, Kinder has represented Franks since 2006.

           

The team said that Franks was not given adequate trial counsel and that he suffers from mental illness.

           

“I recently came from a habeas hearing. Our primary argument was that the sentencing hearing that our client faced was completely mishandled,” said John Kissinger, Jr. “His trial counsel did little to nothing to present a mitigation argument to the jury. There were no mental health experts presented at the sentencing by counsel. There were a lot of issues that should have been explored.”

           

Raymond Burgess, 48, was sentenced to death on Feb. 25, 1992, for murder and armed robbery. Burgess, with co-defendant Norris Young, robbed a motel in Douglas County, GA and shot and killed Liston Chunn, 44. Eight months earlier, he was paroled from a life sentence for another robbery-killing. Attorney Larry Vogelman has represented Burgess since 1996.

           

Vogelman said that it is unclear whether or not Burgess was the shooter. He also said that his client is mentally retarded and therefore should not be executed. An interesting fact in Burgess’ case is the alleged pain-pill addiction of the trial judge, who entered a rehabilitation program after the case finished.

           

“The judge was found by a state trooper, passed out behind the wheel of his car in a ditch. The prosecutor was notified and they kind of hush-hushed it,” said Vogelman. “One of the facts that the federal habeas judge  has focused on is that the prosecutor assisted the judge who was stoned during this proceeding and created an issue of bias.”

 

Proper Representation?

           

That all three defendants were convicted of brutal crimes has little to do with their decisions to take the cases, the attorneys say. Members of the Nelson, Kinder team say they are fighting to ensure that their client receives proper, qualified representation.

           

“It was apparent to me at the beginning of this case that the [previous] lawyers that represented David [Franks] were not even close to doing an adequate job,” said Kissinger. “To me, it’s an injustice to know someone can be sentenced to death without at least having adequate counsel. This wasn’t even close.”

           

For attorneys Vogelman and Volinsky, it’s a matter of fighting the death penalty altogether. Volinsky said that there are a number of factors that make the death penalty system unfair to defendants, especially in Georgia. He cites the lack of resources given to defense attorneys while the Georgia Attorney General’s office has a dedicated section of attorneys whose sole job is working on state habeas cases.

           

“It’s a bankrupt system. It doesn’t provide defense with a fair shot, like resources, investigators and experts. Also, the judges that review [the cases] are openly biased in favor of capital punishment, and that comes up when they’re re-elected,” Volinsky said. “All the judges are elected and when our case was before the Georgia Supreme Court for the last time, the key swing voter in our case was being pilloried for being too light and too easy on crime. That swing voter wrote the decision against us.”

 

Unique Relationships

           

A strange relationship develops, said Vogelman, between the attorney and the client that just isn’t present in any other type of law practice.

           

“The first time I met Raymond [Burgess], I was struck by him. He was attractive and clean-cut, with the affect of a teenager. I was substituted in the case after the prior attorney had a nervous breakdown,” said Vogelman. “When we met, Raymond broke down and hugged me. He said, ‘That means I’ll be alive for three more months.’ That really got me.”

           

Volinsky too, said that there is a unique intimacy that develops between the attorney and the client in capital cases.

           

“It’s not a pleasant situation. I’ve known Meders and his immediate family for 17 years. I get Christmas cards from his folks. Meders has never been able to pay so he knits doilies in his cell that go on my dining room table at holidays,” said Volinsky. “My kids are getting older now, too. They all know what I’ve been doing, so it’s not just me involved.”

           

There are beneficial and rewarding professional relationships, too, that develop when working these cases, said John Kissinger. In fact, he said, his experience with his co-counsel team from the Georgia Resource Center, has been one of learning. He was also proud to point out the camaraderie between the New Hampshire attorneys working in Georgia.

           

“Firstly, our [firm’s] experience with the Georgia Resource Center has been amazing. Also, Andy [Volinsky] has been very helpful to us, considering his experience litigating death penalty cases,” he said. “In the spirit of NH, recognizing this, it’s great that we’re able to call on each other to help out on these cases.”

           

The attorneys also gained a deeper understanding of practicing in New Hampshire.

           

“I find it rewarding to compare the level of indigent defense that is provided in New Hampshire to that of Georgia’s,” said Nick Holmes, a former NH public defender. “I’m proud of what we do here when I see the Georgia system. I’m sure there are errors made here, but I have never seen anything in New Hampshire that approaches what occurred in the Frank’s case.”

           

Holmes said it was also nice to work with the other attorneys in his firm.

           

“It’s provided an opportunity for a whole group of us to work as a team. I can think of at least three or four other attorneys from our firm that have worked and spent a lot of time on this case,” said Holmes. “Working as a team provides us with the ability to work on an interesting, challenging case with lawyers in our firm whom we ordinarily wouldn’t work with. This is an opportunity for us to work side-by-side with our shoulder to the same wheel.”

 

Survival Is Bottom Line

           

In these cases, success, like everything else, is measured differently. Here, the bottom line is survival.

           

Currently, all three inmates are indeed still alive. Burgess has gone through direct appeal, appeal to the Georgia Supreme Court and state habeas corpus phases. He is awaiting his federal habeas corpus hearing.

           

Meders has exhausted direct appeal, Georgia Supreme Court Appeal and state habeas corpus phases. He is awaiting his federal habeas corpus hearing.

           

Franks lost his direct appeal, his Supreme Court appeal and is awaiting decision on his state habeas corpus hearing.

           

“With every phase of these defenses that you pass through, trial to appeal to state and federal habeas, the chances of a reversal become less and less,” said Volinsky, who’s defended five other capital cases, “but no one is dead yet.”

           

 

 

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