Civil Rights for the Accused and Incarcerated
Criminal Appeals and Post-Conviction Proceedings
Dorsey Associate Gets Conviction of 16-Year Old for Possessing a Pocket Knife in School Overturned
Dorsey represented a Willmar High School student in an appeal of his delinquency adjudication for felony possession of a small pocket knife while on school grounds. The student was caught with the knife in his jacket pocket in February 2010 after school authorities received a tip that he had brought drugs to school. However, the student never removed the knife from his pocket or threatened to use the knife in any way. The student was expelled from Willmar High School for one year and found guilty of felony possession of a dangerous weapon under Minnesota Statute § 609.66.
On appeal, the court agreed that the state had failed to prove beyond a reasonable doubt that the student intended to possess the knife or that the knife was designed as a dangerous weapon as required by the statute.
Dorsey Helps the Innocence Project Win a New Trial for Man Wrongly Convicted of Murder
Imagine being charged with the murder of your infant child when what actually happened is your child died of positional asphyxia--a tragically common, but often misunderstood cause of sudden infant death. That is exactly what happened to Michael Hansen in Minnesota. Dorsey (working with the Innocence Project of Minnesota) recently played a key role in winning a new trial for Michael Hansen, who was wrongly convicted of murder by a Minnesota jury in 2006. In May 2004, Michael Hansen awoke to find his infant daughter unconscious and unresponsive. The paramedics could not revive her and she was pronounced dead at the hospital. The autopsy revealed a large skull fracture--but no brain injury. The Medical Examiner classified his daughter's death as a homicide, and Michael Hansen was charged with murder. At his trial, the medical examiner asserted that the skull fracture caused death, and that death was near instantaneous--i.e., the only plausible explanation for the fracture was that Hansen struck his daughter in the night, fracturing her skull and killing her. The ME also testified that no child could have a fracture like the one in this case without showing immediate and obvious symptoms. The defense offered expert testimony that the fracture couldn't have caused death because there was no actual brain injury. Hansen was convicted of second degree murder and sentenced to fourteen and a half years in prison. His appeals were denied.
In 2010, the case came to the attention of the Innocence Project of Minnesota. Forensic pathologists analyzed the case and realized that Mr. Hansen's daughter was sleeping on her stomach, on a soft futon with blankets, pillows, and two other people. It appeared to be a textbook case of positional asphyxia--a tragically common type of sudden infant death caused by unsafe sleep conditions. Critically, it is only in the last few years that forensic pathologists have fully recognized positional asphyxia when classifying infant deaths. The Innocence Project took the case. Hansen moved for a new trial in September 2010, and the court granted an evidentiary hearing.
The State's theory--that a skull fracture killed Mr. Hansen's daughter near-instantaneously--unraveled. The evidence showed that just days before her death, Mr. Hansen's daughter had fallen from a shopping cart in a retail store parking lot. The fall was witnessed by others. The skull fracture, likely caused by that accident, certainly was not the immediate cause of death as the state expert had concluded--there was evidence that the fracture showed signs of healing, indicating it had occurred several days before her death (i.e., around the time of the shopping cart accident). And, on top of that, Mr. Hansen was not even present when the shopping cart accident occurred. In any event, the skull fracture did not actually cause his daughter's death. The real cause of death was positional asphyxia. At the hearing on Mr. Hansen's request for a new trial, the Innocence Project and Dorsey presented six expert witnesses:
-An emergency room doctor who testified that infants with skull fractures--even large, complex fractures like Mr. Hansen's daughter--may show no symptoms unless the injury that caused the fracture also injured the brain. And there was no brain injury in this case.
-A biomechanical engineer who testified that the skull fracture could have been caused by the daughter's fall in the parking lot.
-Two forensic pathologists who testified that positional asphyxia is the most likely cause of death, but a medical examiner likely would not have recognized that in 2006.
-A forensic pathologist who testified that the fracture occurred at least a few days before death and that it caused no brain injury.
To top it all off, the county attorney retained a well respected child abuse expert -- who has a long history of testifying for the prosecution. The expert reviewed the file and informed the county attorney that she agreed with us, and not with the State's expert (who had testified at the trial that the cause of death was from the skull fracture). The State did not immediately disclose that opinion to us. Instead the county attorney sought an advisory opinion from the Office of Lawyers Professional Responsibility that he did not have to disclose this new expert opinion. The Board ruled that he did have to disclose the opinion. Because of that opinion, we learned that the state's expert agreed with us, and actually retained that expert to testify for us.
On July 12, 2011, the Court issued an order granting Mr. Hansen a new trial. The Court found that the positional asphyxia evidence was new and would likely have led to a different outcome at trial. The Court also found that the State's witness gave "false or incorrect" testimony regarding the symptoms and clinical course of a child with a skull fracture, and that the jury might have reached a different conclusion without the testimony. If the County Attorney ultimately decides to not to retry the case, then Mr. Hansen should be released shortly. If he does decide to retry, we will work with the Project to secure his release. Nothing will erase the tragedy of Mr. Hansen losing his daughter. However, we have taken a major step at ending the compounding of that tragedy by securing him a new trial, if not his eventual release and complete exoneration.
Ed Magarian is on the board of directors of the Innocence Project of Minnesota. Aside from some advice from Ed, the bulk of the work was done by James Nichols and the staff at the Innocence Project of Minnesota. James did fantastic job at the hearing to secure Mr. Hansen a new trial. Katheryn Hanson also provided valuable support.
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Dorsey's Long History of Death Penalty Pro Bono Work
A significant portion of Dorsey’s pro bono work has been dedicated to representing people on death row, primarily in Louisiana, Alabama and Texas, states that in the death penalty arena are particularly short on resources and long on injustice. In addition to the cases summarized here, Dorsey lawyers have reached out through CLEs to encourage others to do pro bono death penalty work. Two of our partners have taught a seminar on the death penalty, pro bono, at the University of Minnesota Law School.
The National Legal Aid and Defender Association presented one of it’s “Beacon of Justice” Awards to Dorsey for its significant work in representing death row inmates. The “Beacon of Justice” Award honors law firms that have provided significant pro bono representation to people on death row.
I. Summary of Dorsey’s Death Penalty Cases Since 1985.
Ernest Busby – 1985 (Louisiana)
Dorsey became involved in Ernest Busby’s case at the request of the Louisiana Capital Defense Project. At the time, Mr. Busby was scheduled to be executed in February 1986. With local counsel, Dorsey obtained a stay and an evidentiary hearing before the trial court on the issue of ineffective assistance of counsel. The evidentiary hearing was held in March 1987. The court denied relief, and an execution date was set for July 1988. In June 1987, Dorsey obtained a stay of execution from the Louisiana Supreme Court, which subsequently granted relief, vacating Mr. Busby’s death sentence and ordering a new sentencing hearing. Eventually, Mr. Busby was sentenced to life in prison.
In reaching its decision, the court found that Busby’s lawyer had failed to investigate what turned out to be ample evidence of continuing and profound mental problems that would have been profoundly mitigating at the punishment phase of Mr. Busby’s trial. The court also found that Busby’s counsel failed to put on testimony from Busby’s family members who would have been willing to testify on his behalf and plead for his life. Finally, the court found that Busby’s trial counsel’s closing argument – in which he conceded the state’s case, proffered no mitigating evidence, and failed to plead for his clients life - was constitutionally deficient.
There were at least six lawyers who worked on the case, as well as numerous summer clerks and legal assistants. See,Dorsey for the Defense, Pro Bono Work Results in Stay of Execution. Minnesota Law Journal, Volume 2, No. 47, January 1988.
John Sullivan – 1989 (Louisiana)
In 1982, in New Orleans, Louisiana, John Sullivan was convicted of capital murder after a one-day trial. The next morning, without the benefit of mitigation evidence, the jury returned its recommendation that Sullivan be sentenced to death.
Mr. Sullivan’s case then languished until 1989. In the summer of 1989, Dorsey volunteered, with the assistance of local counsel, to take on Sullivan’s case in post-conviction. Persistent efforts by the team’s private investigator eventually uncovered witnesses and evidence untouched by Sullivan’s trial counsel. This included the initial police report, which contained exculpatory information the prosecution should have disclosed to Sullivan’s attorney ten years ago.
Dorsey lawyers also conducted an exhaustive review of Sullivan’s family background, including review of medical, school, and prison records, and interviews with John’s family members. With these records and interviews counsel were able to begin developing the mitigation evidence that was never presented at trial, including the fact that John was diagnosed as schizophrenic in 1968.
With the results of this investigation in hand, the defense team filed a Motion to Remand for Hearing on a Motion for a New Trial, arguing that Sullivan was denied effective assistance of counsel at the guilt and penalty phases of his trial and that the prosecution withheld material exculpatory evidence which it had in its possession at the time of trial.
The Louisiana Supreme Court granted Sullivan’s motion in 1990, remanding the case to the district court for an evidentiary hearing on both the Brady issue and ineffective assistance of counsel at the punishment phase of the trial.
At the evidentiary hearing, the defense team introduced the newly uncovered police report, which contained the original description of the killer given to the police by the one eyewitness – a description which differed dramatically from any that would fit Sullivan when he was arrested just hours after the offense. Sullivan’s trial attorney testified not only concerning the materiality of the description as direct impeachment evidence, but also to its independent materiality as a factor that would have given him reason to pursue further and more vigorously a lead suggested to him before trial, that the real killer was someone else.
To show what would have been discovered if that lead had been pursued, the Dorsey Team then sought to introduce the testimony of four witnesses whose testimony would directly incriminate the other man, and thus prove materiality as fact, not simply as speculation. However, the trial court refused to hear this testimony, interpreting its mandate from the Supreme Court very narrowly. The evidentiary hearing continued, now focused on the sentencing phase issues, with the testimony of three psychiatric experts and our client’s sister, who testified about the emotional, sexual and physical abuse suffered by the Sullivan children.
The hearing was recessed for a week, awaiting the testimony from the author of the police report. During this recess, Dorsey lawyers and local counsel took an application for an emergency writ to the Louisiana Supreme Court, arguing that it was both necessary and logical for defense counsel to present to the court the evidence which would have been developed as a result of obtaining the police report in order to demonstrate materiality. The Court agreed, and ordered the district court to consider the testimony of the four witnesses who had previously been denied an opportunity to testify.
The Louisiana District Court denied Sullivan’s motion for a new trial. The defense team filed an appeal, raising ineffective assistance of counsel, Brady violations, and errors in Sullivan’s jury instructions.
The Louisiana Supreme Court held that the trial counsel’s complete lack of preparation for the penalty phase of the trial was ineffective assistance of counsel, and a reasonable probability existed that had counsel prepared for the penalty phase and put forward testimony regarding John Sullivan’s schizophrenia and abusive childhood environment, the jury would have returned a life sentence. In the other part of its decision, however, the court affirmed Mr. Sullivan’s conviction of first degree murder, refusing to grant a new trial on the issue of guilt despite numerous trial errors, erroneous jury instructions and a Brady violation.
The defense team filed a petition for certiorari with the United States Supreme Court in 1992. The certiorari petition raised the sole issue of whether an unconstitutional reasonable doubt instruction can be subjected to harmless error review by an appellate court, or whether it is “plain error” that automatically results in a new trial. The brief argued that appellate second-guessing of the sufficiency of the evidence at trial violated Sullivan’s Sixth Amendment right to a jury trial and violated a fundamental constitutional right that should not be subject to harmless error analysis. The National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief supporting the petition for certiorari.
The State of Louisiana waived its right to oppose the certiorari petition; however, the Court ordered the State to file a response. The Court announced that it had granted review.
The United States Supreme Court in 1993 decided Sullivan v. Louisiana, 508 US 275 (1993), holding that Sullivan’s Sixth Amendment right to a jury trial was denied by the giving of a constitutionally deficient beyond-a-reasonable-doubt-instruction and this finding required a reversal of the conviction. Because of this decision, an erroneous instruction regarding reasonable doubt now results in automatic reversal of the court’s decision. This holding has been cited in numerous subsequent cases and has figured into harmless and structural error analyses.
The Dorsey defense team over the course of the case consisted of over 12 lawyers, 20 summer associates, and 3 legal assistants and local counsel.
Glen Charles McGinnis – 1995 (Texas)
Dorsey’s representation of Glen Charles McGinnis, a Texas death row inmate, began in 1995. McGinnis, an African American man, was only 17 at the time of his crime, and was convicted and sentenced to death by an all white jury in Harris County (Houston). There were two primary issues raised in the habeas appeal: the racial composition of the jury and the fact that mitigating testimony from a defense psychiatrist was not admitted during the sentencing phase of the trial.
The Defense Team filed a habeas petition in the United States District Court, as well as a motion for discovery of records which could reflect racial bias in the jury selection process. The Defense Team was granted discovery of these records by the United States District Court. Ultimately, the Court granted the State’s motion for summary judgment and denied the Team’s Petition for Writ of Habeas Corpus.
The Defense Team filed an appeal to the United States Court of Appeals for the Fifth Circuit arguing that McGinnis was denied a fair trial because African-Americans were under represented in the pool of potential jurors.
On July 20, 1999, after full briefing and oral argument, the Fifth Circuit affirmed the district court's denial of habeas relief. A Petition for Writ of Certiorari was filed, as well as a Motion for Stay of Execution. The Committee of Human Rights of the Bar Council of England and Wales filed an amicus brief in support of the Writ.
The Team also filed an Application for commutation with the Texas Board of Pardons and Paroles, raising the fact that Mr. McGinnis was 17 at the time of the crime, his immaturity, and the international condemnation of the execution of juveniles. The Application is attached at Tab 4. In support, the Dorsey Team obtained a letter from Pope John Paul II asking Governor Bush to stay the execution:
“committed to upholding the sacredness and dignity of each human life, the Holy Father prays that the life of Mr. McGinnis be saved through the compassion and magnanimity of yourself, Mr. Governor, and through the Board of Pardons and Paroles”
The Dorsey Team also obtained a letter from the European Union, requesting that Mr. McGinnis‘ sentence be commuted to life in prison. At the time, such letters were extremely unusual.
The Petition for a Writ of Certiorari was denied, as was the request for a commutation, and the request for a reprieve. Mr. McGinnis was executed on January 25, 2000.
Five years later, the execution of juveniles was deemed unconstitutional by the U.S. Supreme Court.
The Dorsey team consisted of over eight lawyers as well as paralegals and staff, as well as local counsel.
Joe Lee Guy – 2000 (Texas)
The ABA Death Penalty Project and the Texas Defender Service contacted Dorsey in February 2000 requesting emergency assistance in the case of Joe Lee Guy, who was on death row in Texas. At that time, Mr. Guy’s execution was scheduled for June 2000. Joe Lee Guy was the alleged lookout in a robbery of a convenience store planned by two of his friends. During the course of the robbery, and while Joe Lee Guy was outside the convenience store, the other participants in the crime shot and killed the store owner and wounded his elderly mother. All three participants were indicted and separately tried for capital murder. The two participants who shot and killed the store owner were given life sentences. Joe Lee Guy, the lookout, was sentenced to death.
At the time Dorsey was asked to intervene in the case, Mr. Guy had been represented by a direct appeal lawyer who failed to file his brief on time because he was being treated for drug and alcohol addiction, and a post-conviction lawyer who filed the federal petition six months late, in part because the previous habeas attorney had become an assistant district attorney, but had failed to inform Mr. Guy of same.
All that stood in the way of his execution was a six months tardy shell of a federal habeas petition. The State of Texas had asked for summary judgment in that proceeding, asserting that Mr. Guy’s petition should be dismissed because it was untimely. A Defense Team of Dorsey lawyers from the Minneapolis, New York and Denver offices, working together with local counsel, filed briefs opposing the State’s motion for summary judgment and asking for a stay of execution. The court issued an order staying the execution, denying the State’s motion, and granting Joe Lee Guy leave to file a new federal petition. Negotiations with the Attorney General’s office also eventually led to an agreement that Mr. Guy would not be limited in federal habeas by the minimal claims raised in his state post-conviction proceedings. The Defense Team embarked on an exhaustive reinvestigation of all aspects of Mr. Guy’s case, reviewing thousands of pages of records, interviewing scores of witnesses, and taking depositions of, among others, Mr. Guy’s trial defense counsel and the defense investigator. Trial counsel had been suspended from the practice of law on numerous occasions for drug and alcohol abuse, and witnesses testified that he used drugs during the trial and was drunk the night before the penalty phase began. The investigator, as it turns out, focused his efforts not on uncovering facts to advance Mr. Guy’s defense, but on ingratiating himself with the elderly mother of the victim of the crime. The investigator’s efforts were successful. Shortly after Mr. Guy’s trial concluded, the victim’s mother changed her will to leave the bulk of her substantial estate to the investigator.
A federal habeas petition raising numerous issues was filed, and in February 2001 the court issued an order denying the petition. The Dorsey Team filed an appeal to the United States Court of Appeals for the Fifth Circuit.
In 2003, the United States Court of Appeals for the Fifth Circuit issued its opinion in Guy v. Cockrell. The appellate court reversed the district court’s denial of relief, and remanded the case for an evidentiary hearing and further proceedings.
On remand, the district court set an evidentiary hearing almost immediately, denying Guy’s motion for an opportunity to take discovery and brief the issues for hearing. The Dorsey Team, with help from local counsel and the investigative team, pulled together a hearing plan in record time, interviewed more than fifty potential witnesses, and went to court. After a full day devoted almost exclusively to cross-examination of the man who had been appointed to be Guy’s capital trial investigator, but instead became the surviving victim’s heir, the judge decided that Guy could have as much time to present evidence as was needed, and the parties agreed to reconvene in December.
In the interim, Dorsey pursued an alternative avenue for relief. Under Texas law, a majority of the state trial officials may petition for clemency. Dorsey, with local assistance, drafted a petition for clemency for Guy. Thanks to local counsel’s hard work, a majority of Guy’s state trial officials, including the prosecutor, current trial judge and the current and former sheriffs agreed to sign the petition for clemency. The petition was submitted to the Texas Board of Parole and Pardons in November 2003. In January 2004 the board voted 15-0 to recommend clemency. Governor Perry, however, refused to act on the recommendation, sending the matter back to court.
Following completion of the trial, and after over four years of legal wrangling, the federal district court granted the writ, finding that the investigator had acted as a “mercenary” for the shooting victim, creating constitutionally ineffective counsel. The case was remanded for retrial. The prosecutor agreed to accept a life sentence and the judge accepted the plea agreement.
Scores of Dorsey attorneys, summer associates, and staff from several offices, including Minneapolis, Denver, New York and Anchorage were involved in the case along with local counsel. Numerous articles were written about the case.
Osbaldo Torres – 2003 (Oklahoma)
Dorsey lawyers assisted in the death penalty case of Osbaldo Torres, a Mexican national. When Oklahoma authorities arrested Mr. Torres he was not advised of his rights under Article 36 of the Vienna Convention which provides that foreign nationals must be informed of their right to communicate with their consulate. Mr. Torres’ counsel failed to raise the Vienna Convention issue at trial, in his direct appeal, or in two state applications for post-conviction relief. In 2004, in the Case Concerning Avena and Other Mexican Nationals (Mex.v.U.S.), 2004 I.C.J. 12 (Judgment of Mar. 31) (Avena). The International Court of Justice (“ICJ”) held that the United States had violated the Vienna Convention in Mr. Torres’ case and that of 50 other Mexican nationals on death row.
A team of Dorsey lawyers assisted other lawyers working on Mr. Torres’ case in researching and analyzing every Oklahoma capital case to assess Mr. Torres’ culpability relative to other capital defendants. A separate team of Dorsey lawyers was involved in writing an amicus brief in support of Mr. Torres’ anticipated petition for certiorari. Before that filing was necessary, the Oklahoma Court of Criminal Appeals voted 3-2 to stay Mr. Torres’ execution, and remanded his case to the trial court for review and reconsideration. Just a few hours later, the Governor commuted Mr. Torres’ death sentence to life imprisonment.
II. Current Pending Cases
Andre Thomas – 2006 (Texas)
Mr. Thomas, an African American man, resides on Texas’ death row. Dorsey has been involved in this extraordinary case since February 2006. We became involved at the behest of Maurie Levin and the ABA Death Penalty Representation Project.
“This is an extraordinarily tragic case.” Ex parte Thomas, 2009 WL 693606 (Tex. Crim. App.), slip op. at 1 (Cochran, J., concurring). Delusional and psychotic, Mr. Thomas killed three people on the morning of March 27, 2004. In his own words, he “thought it was the word of God” that led him to stab his estranged wife Laura (a white woman), his four-year-old son Andre Jr., and Andre Jr.’s 13-month-old half-sister Lehya. In the grip of his mental illness, Mr. Thomas acted because God told him to do so, and because he believed Laura was Jezebel, Andre the anti-Christ, and Leyha a related evil spirit. Driven by his delusions, he used separate knives to ensure he did not “cross-contaminate” the victims’ blood and cut out their hearts, placing them in his pocket. Mr. Thomas then attempted to take his own life, fully expecting to die along with his wife and child. When this attempt failed, he turned himself into police later that same day.
A week after his arrest, while in jail, Mr. Thomas, following the dictates of Matthew 5:29 (“if thine right eye offend thee, pluck it out and cast it from thee”), gouged out his right eye with his fingers.
He was subsequently found incompetent to stand trial and sent to a state mental hospital. Forty-seven days later, he was returned to the trial court, and after his lawyers failed to contest his purported return to competency, his case proceeded to trial, and he was convicted and sentenced to death.
On December 8, 2008, while on Texas’ death row, Mr. Thomas plucked out his second eye, and ate it. He now resides at the Jester IV Unit, the division of TDCJ reserved for the severely mentally ill.
The Dorsey Team, with the assistance of local counsel, a mitigation specialist, and numerous experts, conducted an exhaustive investigation into the case and Mr. Thomas’ background and severe mental illness. On June 18, Dorsey and local counsel filed a 350 page petition, attaching six volumes of exhibits. The petition raised numerous issues, including:
- Ineffective assistance of counsel at the guilt phase of trial for failing to contest competency to stand trial, and failing to competently counter the state’s contorted theory of “substance inducted psychosis”
- Ineffective assistance of counsel at the punishment phase of trial for failing to investigate, discover, or present the copious evidence of Mr. Thomas’ long standing mental illness, the mental illness rampant in his extended family, and the extreme poverty, instability, neglect and abuse Mr. Thomas endured.
- The racism that pervaded the entire trial, from the jury selection process (Mr. Thomas was convicted and sentenced to death by an all white jury, four of whom were openly opposed to interracial relationships), to the race coded language used by the prosecution at trial, to the state’s closing argument specifically appealing to the race prejudices of the jury, as well as trial counsel’s ineffectiveness for failing to challenge any of these practices. These claims have been placed squarely within the ample evidence of racial bias in the community in which Mr. Thomas was raised, tried, and convicted.
Dorsey has committed – and will continue to commit – substantial resources to challenging the copious constitutional errors that have resulted in Mr. Thomas’ blind, psychotic presence on Texas’ death row and to investigating and presenting the compelling and humanizing story that was never told to the jury that sentenced him to death. Through these efforts, the team has uncovered critical new evidence demonstrating the ineffective assistance of Mr. Thomas’ counsel, as well as other violations of his constitutional rights, supporting over 27 claims for relief from his unconstitutional conviction and sentence. After Mr. Thomas pulled out his second eye, the team additionally filed a successor petition for a writ of habeas corpus in the Texas courts, asserting that under these new and unprecedented circumstances, Mr. Thomas no longer poses a “continuing threat to society” as the jury decided and, in turn, that his death sentence violates the 8th and 14th Amendments to the U.S. Constitution. The Texas courts denied both Mr. Thomas’s state habeas and successor petitions. Mr. Thomas’ petition for federal habeas relief – filed on March 16, 2010, and also over 350 pages in length, is currently pending in the Eastern District of Texas.
Mr. Thomas’ case raises numerous important, topical issues. The facts set forth above demonstrate that the system has unequivocally failed him, underscoring the import of his pending petition for habeas corpus and of the ongoing assistance the Dorsey team, as well as Mr. Bailey and Ms. Levin, continue to offer in seeking relief from Mr. Thomas’s death sentence. Articles on the case appeared in the New York Times, Dallas News, KTEN and the StarTribune.
Bruce Webster – 2008 (Texas)
Dorsey began representing Bruce Webster in August 2008. Mr. Webster was convicted of murder and sentenced to death in federal court in 1996. At his sentencing phase, Mr. Webster introduced significant evidence showing that he was mentally retarded, including a series of extremely low IQ scores (scores of 48, 51, 55, 59, 65, and 72) that placed Mr. Webster firmly within the range of mental retardation, as well as other evidence of Mr. Webster’s difficulties in functioning in daily life (commonly called “adaptive deficits”). Despite this evidence, the trial court decided that Mr. Webster was not mentally retarded as a matter of law, and he was sentenced him to death.
After Mr. Webster's direct appeal and petition for habeas corpus were denied, Dorsey began working on a petition for clemency on Mr. Webster's behalf. The Dorsey Team is led by Steve Wells. During its investigation, Dorsey discovered previously unavailable social security records that contained new evidence of Mr. Webster’s low IQ and adaptive deficits. In particular, the social security records contained information gathered before the commission of the crime, including two IQ scores of 59 and 69; two independent diagnoses of “mental retardation” made by unbiased government doctors; and evidence that Mr. Webster participated in special education classes as a child. Additionally, Dorsey discovered new evidence of Mr. Webster’s adaptive deficits through interviews with individuals who knew Mr. Webster before age 18, including testimony that Mr. Webster had difficulty tying his shoes and dressing himself.
Based on this newly discovered evidence, Dorsey moved the Fifth Circuit Court of Appeals for authorization to file a successive motion to vacate Mr. Webster's death sentence under 28 U.S.C. § 2255. Dorsey argued that because the newly discovered evidence shows that Mr. Webster is mentally retarded, he is not eligible for the death penalty under the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002). The motion also argued that the statutory requirements applicable to federal prisoners, such as Mr. Webster, are different from those applicable to state prisoners. No court has squarely addressed the difference in statutory language.
In April, the Fifth Circuit denied the motion, stating that Mr. Webster's application did not satisfy the procedural requirements of 28 U.S.C. § 2255(h). One judge on the panel wrote separately to emphasize the "absurdity of the Kafkaesque result," noting that "it is virtually guaranteed" that Mr. Webster would be found mentally retarded if the newly discovered evidence could be considered on the merits, but that under Congress's instruction "which ties our judicial hands so illogically, we today have no choice but to condone just such an unconstitutional punishment." In re: Bruce Carneil Webster, Case No. 09-11039 5th Cir. April 28, 2010.
If Mr. Webster's sentence is carried out, he will have the lowest IQ of anyone sentenced to death since Atkins was decided, with an IQ higher than only 0.1 percent of the population. An article about the case, “Circuit Judge Notes ‘Kafkaesque’ result in Capital Case” was published in the Texas Lawyer, May 10, 2010, Volume 26, Issue 6. An article about this case appeared in the Dallas Morning News, July 18, 2010, and there was an Editorial in the Dallas Morning News on July 21, 2010.
III. Noncapital Cases - Jamaica
Our London office is representing Jamaican prisoners on appeals to the Privy Council and the Queen. Two Jamaican prisoners were convicted of murder in 2001 and were imprisoned in the Tower Street Correctional Centre in Kingston, Jamaica. Their appeals in Jamaica were rejected. (Jamaica, a former British colony and member of the British Commonwealth of Nations permits final criminal appeals to the Privy Council and the Queen of England.) Acting as “agents” of the Privy Council, Dorsey took their appeals. After a day-long hearing, the Privy Council found “serious mis-directions” of the jury by the Jamaican trial judge and failure of evidence to find the defendants guilty. The five lords “humbly advised her Majesty that their appeals should be allowed and their convictions quashed.” An Order from her Majesty, the Queen of England, was issued on July 9, 2009 releasing our clients unconditionally from nine years in prison.