Edward N. Bell, a Black Jamaican national, was convicted by an all-white small-town Virginia jury in 2001 in the shooting death of a popular police officer, Ricky Timbrook. You can learn more about his case at our website -- www.clemency4Eddie.net or by reading local coverage of the case by the Northern Virginia Daily at http://www.nvdaily.com/...
Eddie has completed his appeals and is facing execution on February 19, 2009. We are petitioning Governor Tim Kaine (Virginia) for clemency. Over the next few days I will be focusing on various aspects of his case in diaries. On Thursday we explored Virginia’s unconstitutional refusal to acknowledge his likely mental retardation, and Virginia’s refusal to allow him to collect and present more evidence in support of his mental deficiencies. At the bottom of this diary I will provide Action options -- links to an Online Petition, and Amnesty International. Each diary will focus on just one aspect of his case. We also have very strong arguments regarding his innocence, perjured testimony at the trial, and his likely mental retardation. Today’s diary will focus on the severely deficient performance of his court appointed counsel during the penalty phase.
"The testimony that was offered was very graphic about a violent man. We didn’t rebut it. No[r] try to defend it, refute it. We didn’t"
The above quote comes from Eddie’s lawyer. This remark was not uttered idly, or in an unguarded moment outside of the hearing of the jury. This is what Eddie’s lawyer said to the jury during his closing argument.
Think about that for a moment. Picture yourself on trial for your life, and that’s the best your own lawyer can say about you? Is there any doubt that the jury is going to return a verdict for death? Is there any doubt that your lawyer has done you serious harm?
Not every person convicted of a capital crime gets the death sentence. The only reason our justice system tolerates the death penalty at all is that it’s application is individualized – each jury gets to see the bad and the good about a defendant when deciding whether to execute them.
So, if a jury finds a defendant guilty of a capital crime, there is a sentencing hearing—a second mini-trial where the issue is whether or not to impose the death penalty. The state, of course, puts on evidence to show the defendant deserves execution. As Dr. Mark Cunningham, a world-renowned forensic psychologist, explains, "The theory of the prosecution at capital sentencing typically has two elements to it. One, that the defendant has engaged in the capital conduct through a wholly volition choice . . . that arises out of his malignantly evil heart, number two."
But the jurors are also entitled to hear all "mitigating" evidence offered by a capital defendant—any fact, for example, about Eddie’s life—that might move a juror in justice or mercy to find a sentence of life without possibility of parole appropriate for Eddie. Jurors can, and often do, take mitigation evidence into account and return a sentence of life without parole for even the most heinous crimes. Just ask Lee Boyd Malvo, Zacarias Moussaoui, or Susan Smith. As Dr. Cunningham explains, "if there are redeeming aspects about this individual, if there are positive relationships that he’s had or employment or care of mother or children or others, then those positive characteristic elements go to counteract the state’s assertion that this individual is just bad to the bone, that this offense arises from their wholly totally malignantly evil heart."
Eddie’s lawyers let him, and his jury, down. They literally presented no mitigation evidence whatsoever. None at all. I’m not exaggerating here – this isn’t a situation where they presented some, but it wasn’t very good so I just say they presented none.
I literally mean they didn’t present any mitigation evidence at all. The district judge who heard Eddie’s habeas petition summarized it this way: defense counsel "present[ed] no mitigating evidence, zero mitigating evidence. The prosecutor said it, you agree, I agree. The defense counsel presented zero." Bell’s trial prosecutor told the jury that Bell had not "produced one shred of evidence of mitigation." Everyone to consider the issue agrees that Bell’s lawyers presented no mitigating evidence: the prosecutor, defense counsel, the representative of the Attorney General, a juror, and the District court.
As a result, the lawyers failed not only their client but the honest Virginia jurors who found themselves faced with the most difficult decision of their lives—whether to sentence another human being to death—without the information they needed to make that decision. As one of Eddie’s jurors says:
"It was very important to me to hear about Eddie Bell’s background. I was undecided at sentencing and I wanted to hear something, anything about Eddie Bell. It would have been important to me to hear that Bell had children and to hear about his relationship with them. It would have been helpful to hear from Eddie Bell—what I saw, including his shackles, was a mean-looking person. I knew nothing about his family life. It was important to me to know whether he had mental impairments. We were looking for something mitigating, some reason not to sentence him to death, but we were given nothing by his lawyers and we felt his lawyers did him a disservice."
The consequence of the lawyers’ failure is obvious. As Dr. Cunningham explains, "Should the defense not put on evidence . . . then the two prongs of the state’s theory go unrebutted. There’s no argument or evidence that comes before the jury to refute those two positions."
It is settled beyond dispute that this failure on the lawyers’ part deprived Eddie of the representation the Constitution entitles him to, and deprived his jury of the information they needed to do their duty. The federal judge who heard Eddie’s habeas petition found that the trial attorneys’ performance representing Bell in the capital sentencing aspect of his trial was "deficient within a constitutional standard." This finding is extremely rare, and a powerful indictment of trial counsel’s performance. No court has ever disagreed with that finding. If you’re interested in what defense counsel is supposed to specifically do, I encourage you to read the American Bar Association guidelines for capital cases.
For a detailed look at the evidence Eddie’s counsel could have presented, please read our Clemency Brief. There are many people who love Eddie, and who would have testified to his acts of kindness, his generosity, his love for his children and step-daughter, and how devastated that would be if he is executed. Traditional evidence concerning his limited mental functioning, child abuse he suffered, and his life in rural Jamaica was also available. Many people would have been willing to come forward and speak on Eddie’s behalf. Some of them were already on the stand, having been called by the prosecutor. Yet Eddie’s lawyers utterly failed to give the jury any reason to grant Eddie mercy. A sentence reached under these circumstances just cannot be allowed to stand.
If Gov. Kaine does not grant clemency and Eddie is executed on Thursday, Eddie’s jurors will be left holding the bag. They will have sentenced a man to die – on grossly incomplete information.
ACTION ITEM
Please sign the online petition urging Gov. Kaine to grant clemency to Eddie Bell. Amnesty International also has a letter writing campaign – please consider also sending a letter or email on Bell’s behalf.
Thank you for your attention.