Yesterday, I posted about a crazy deposition from last April in which longtime Mississippi forensic expert Michael West went wildly off the rails. West was profane, belligerent, and openly contemptuous of the fact that anyone would dare question his expertise. The remarkable thing is that this was a deposition for a post-conviction hearing in a death penalty case. And in that case, West is the star witness. His testimony was the only physical evidence putting defendant Eddie Lee Howard at the crime scene.
Once in post-conviction, these cases are handled by the Mississippi Attorney General’s Office. You might think that the Mississippi Attorney General Jim Hood would be embarrassed by West’s antics. The actions from his office after the deposition indicate that that you’d be wrong.
The deposition occurred on April 16. On April 25th, in anticipation of the evidentiary hearing that followed in May (that hearing went down about the same way as the deposition — the judge has yet to rule on the matter), Tucker Carrington of the Mississippi Innocence Project sent a letter to assistant attorney general Jason Davis. In it, Carrington again pointed out that since Howard’s trials West has been widely discredited. He pointed out that in the deposition itself, West contradicted his testimony at trial. And he pointed out West’s wholesale failure to take any of this seriously — he failed to prepare for the deposition, his failed to produce the appropriate documents and records, and he of course showed an appalling lack of professionalism and reverence, particularly given that a man’s life is at stake. Carrington again requested that the AG’s office drop the charges.
The next day, Davis and Hood filed a motion requesting a hearing to assess the competency of Howard’s legal team. It’s an astonishingly brazen reaction. Faced with an embarrassing performance in which the state’s already-discredited primary witness in a death penalty case came completely unhinged, Hood chose instead to attack the credibility of Eddie Lee Howard’s lawyers.
My sources in Mississippi tell me that Hood’s office has using this tactic for a while now. The motion was based on Rule 22 of the Mississippi’s Rules of Appellate Procedure. The intent behind that rule is sound: It gives the state’s courts a mechanism to ensure that defendants in capital cases are getting adequate legal representation in their appeals. These are complicated and consequential cases. You don’t want death penalty appeals and post-conviction petitions handled by fresh law school grads or washed up schlubs.
The problem is that the rule as originally written was vague and sloppily drafted. For example, it required anyone handling a death penalty appeal to have taken a new felony case within the last three years. That may sound reasonable, but many attorneys work solely on post-conviction cases, which can draw on for years. They can handle multiple cases for years on end without ever taking on a new client. These of course are some of the most qualified attorneys to handle capital cases. Yet under the rule, they could potentially be disqualified.
Sources in Mississippi say that Hood’s office has been using the rule as a weapon. While Hood and his subordinates will claim in briefs that they’re merely fulfilling their obligation to protect the rights of criminal defendants, they aren’t filing these motions as a matter of course in every capital case. The sense in Mississippi is that they have been using the rule to hassle out-of-state law firms and nonprofit legal aid groups taking Mississippi capital cases on a pro-bono basis. The attorneys at these firms and aid groups have extensive experience in capital cases. In other words, Hood’s office has been using the rule to attack the most qualified capital defense attorneys, not the least. In one recent example, Hood’s office tried to disqualify a well-respected Virginia attorney with significant death penalty experience because he hadn’t paid the $350 fee necessary to be barred by the U.S. Court of Appeals for the Fifth Circuit — one of the requirements under the rule as it was previously written.
In an affidavit filed last November, Emily Olsen-Gault, the director and chief counsel for the American Bar Association’s Death Penalty Representation Project, voiced the ABA’s concerns about what Hood was doing:
“The interpretation of Rule 22 that the Attorney General’s Office has advanced would irreversibly chill the recruitment and participation of pro bona counsel in post-conviction proceedings in Mississippi. This would not only harm indigent death-sentenced prisoners in Mississippi, but would also impose substantial burdens on Mississippi taxpayers.”
In Eddie Lee Howard’s case, Hood’s decision to invoke the rule when he did was basically the legal equivalent of trolling. Tucker Carrington has been the director of the Mississippi Innocence Project for a decade. He has represented Mississippi clients in courts all over the state, as well as in federal court. He has been Howard’s attorney since 2008. Prior to that he was a criminal defense attorney in Washington, D.C. Chris Fabricant is director of strategic litigation for the Innocence Project of New York. He has been a criminal defense attorney for over a decade. Dana Delger is a staff attorney at the Innocence Project who clerked for a federal appeals court judge and worked as a public defender in Harlem. Vanessa Potkin is a senior staff attorney with the Innocence Project. Peter Neufeld is a co-founder and co-director of the Innocence Project who has been practicing criminal defense law for decades. Plotkin and Neufeld in fact had represented Levon Brooks and Kennedy Brewer, the two men previously convicted by West’s bite mark testimony who served nearly 30 combined years in prison before they were exonerated in 2007.
These are the attorneys named in Hood’s motion. The Innocence Project can at times be controversial. Prosecutors and law-and-order types have often disagreed with the organization’s methods, tactics, or policy recommendations. But to argue that its attorneys aren’t qualified to represent defendants in post conviction proceedings is laughable. That’s what they do. They’ve also been representing Howard for nearly a decade. That Hood’s office would suddenly invoke the rule less than two weeks after the April hearing, and just a day after Carrington’s letter, makes it pretty clear that this was just petty harassment.
Moreover, as Carrington pointed out in his response, Hood’s motion is particularly absurd given that Hood’s office has already vouched for the credibility of Howard’s legal team in a different context. That was less than a year ago.
The irony here is that while Hood claims to be so concerned about the qualifications of capital defense attorneys, he has shown zero interest in ensuring that expert witness who testify for the state in Mississippi’s courts are credible and qualified. That’s what that deposition last April was all about.
For his entire tenure as attorney general, Hood has steadfastly defended Steven Hayne, the controversial medical examiner who did 80-90 percent of the state’s autopsies for nearly 20 years. (Hayne and West were collaborators. Hayne often referred cases to West, while West often assisted Hayne with his autopsies.) That’s probably at least in part because Hood frequently used Hayne back when he worked in a DA’s office. When Mississippi’s public safety commissioner effectively fired Hayne several years ago, Hood led an effort to resurrect an antiquated law to bring Hayne back.
As for Michael West, Hood did finally admit in 2011 that West had credibility problems. He even told a local TV station that he was conducting an investigation. A few months later, the assistant attorney general Hood allegedly assigned to head up that investigation was asked what he had found. He replied that to that point, he had done a Westlaw search on West’s name — the legal equivalent of typing West’s name into Google. Five years later, we’ve heard nothing from Hood or his office about what that investigation has turned up. And this is an attorney general who is anything but publicity-shy.
Instead, Hood’s office is still aggressively fighting to preserve convictions won with West’s testimony. In most cases, Hood’s office now argues that defendants are procedurally barred from raising questions about West’s expertise. In these cases, Hood and his subordinates don’t even try to argue that West is credible. They don’t dispute that West’s testimony was fraudulent. Instead, they that the defendant has already attempted to challenge West’s credibility either at trial, during an appeal, or in post-conviction — and lost. By publicly acknowledging that West is not a credible witness, Hood has admitted that the Mississippi’s courts were wrong to allow and uphold West’s testimony. But he’s willing to keep people in prison based on the fact that years ago, he and his predecessors persuaded Mississippi’s courts to approve that testimony — to issue those wrong decisions — and the law now prevents those same defendants from raising that issue again. Hood is essentially arguing that Mississippi keep people in prison — or in Howard’s case, that Mississippi execute someone — on a technicality.
Whether Hood is right on the law on this particular point is beside the point. As attorney general, he isn’t required to fight to preserve these convictions. He could drop the charges in the interest of justice. Or he could agree to a new trial without the tainted testimony. He just won’t do it.
The Lowndes County Circuit Court didn’t directly address Hood’s motion because days after Hood filed it, the Mississippi Supreme Court revised Rule 22 to fix the vague language and sloppy drafting. Under the revised rule, Howard’s legal team is more than qualified, so there’s no room for Hood’s motion. It isn’t clear if the state supreme court revised the rule in response to Hood’s motion, but the timing is certainly suggestive.
Hood is widely expected to run for governor next year. As one of the only Democrats holding statewide office in the deep south (and a fairly popular one at that), he’s expected to get a lot of support from the national party once he announces. So far in his political career, Hood has found success in the south by countering his close (and at time scandalous) relationship with the plaintiff’s bar and high-profile fights with prominent businesses with an unapologetic embrace of law-and-order policies, including a particular enthusiasm for the death penalty. It will be interesting to see if he continues to pull it off. The landscape on criminal justice is shifting. Hood’s efforts to undermine the rights of criminal defendants and his utter disinterest in the forensics crisis unfolding right under his nose may came back to haunt him.