If James T. Fisher can avoid attorneys having prejudices or harboring a substance-abuse problem, his life might be spared. Twice Fisher has gone on trial in Oklahoma County for a 1982 murder. The first verdict was deleted due to ineffective counsel after a federal court found Fisher's attorney performed inadequately, due in part to the lawyer's bias against his client's lifestyle.
Fisher was tried again in 2005 with the same result: guilty and death.
A few months ago, Oklahoma County District Judge Kenneth Watson recommended to the Oklahoma Court of Criminal Appeals that Fisher's second trial outcome get the eraser due to another defense attorney's personal problems with drugs and alcohol. The accused sits on death row, awaiting the appeals court decision on the recommendation.
Two separate trials, two decades apart; two different attorneys, but possibly the same outcome for each case " vacated verdicts because of poor attorney performance.
Fisher was convicted and sentenced to death for the Dec. 12, 1982, killing of Terry Gene Neal. The murder took place at Neal's northwest Oklahoma City apartment after what police said was a sexual encounter between the two men. Prosecutors alleged Fisher slammed a glass bottle over Neal's head, then took one of the broken pieces and stabbed the victim in the neck.
According to court documents, investigators believed Fisher was hanging around downtown Oklahoma City that night when Neal drove by looking for a homosexual partner. Neal's estranged wife testified her husband engaged in this activity, which contributed to their separation. Neal picked up Fisher and another male, 15-year-old Fadjo Odell Johnson, purchased some liquor and then drove to his apartment, prosecutors contend.
Johnson was the key witness against Fisher, but there were issues with the young man's credibility. Johnson was first charged with Neal's murder before turning state's evidence against Fisher. After giving detectives a statement about the crime, Johnson fled to Houston and had to be arrested and sent back to Oklahoma, where he was kept in custody until the trial. Eyewitness accounts of Fisher's whereabouts on the night of the murder also contradict some of Johnson's statements.
At trial, Johnson testified Neal and Fisher had oral sex while Johnson watched television. Afterward, Johnson said the two men started arguing and Fisher picked up a wine bottle and hit Neal on the head, then grabbed his hair and began stabbing him in the neck. After the murder, Johnson testified Fisher told him to grab Neal's television and then they stole Neal's car, which was later found in a ditch near Jenks.
Fisher fled to his home in Buffalo, N.Y., where he was later arrested by police and sent back to Oklahoma. In one of the key points in the case, Fisher told Buffalo police when they arrested him that "he hit 'the guy' in the head with a bottle and he told the 'young dude' not to say anything," according to court documents. Fisher then stated the "'young dude' didn't kill the victim, and he thought the victim's name was Terry," according to the documents.
There was no forensic evidence presented at trial except testimony from a detective who said a fingerprint matching Fisher was found on Neal's car. However, the card with the fingerprint on it was lost and never introduced during the trial.
A jury found Fisher guilty of murder in 1983 and sentenced him to death.
Fisher's court-appointed attorney during the first trial was well-known civil rights activist and Oklahoma legislator E. Melvin Porter. A state senator for more than 20 years, Porter was one of the leading figures for civil rights in Oklahoma, defending Clara Luper in the Fifties when she led a group of students at a sit-in in Oklahoma City.
Porter was one of the first two black students admitted to law school at Vanderbilt University in 1956. After graduation, he moved to Oklahoma City and started his law practice. He became the first black person elected to the state Senate in 1964 and served until 1986, when he lost re-election.
But, while Porter was one of Oklahoma's strongest advocates for civil rights, there was one sector of society with which he had problems: gays.
"I thought homosexuals were among the worst people in the world, and I did not like that aspect of this case," Porter said in a 1996 affidavit for Fisher's appeal of his conviction. "I believe my personal feelings towards James Fisher affected my representation of him."
Porter never gave any opening or closing statements during the trial or the penalty phase, and at times appeared to favor the prosecution over his client, according to court documents. He hardly called any witnesses for Fisher's defense; in fact, the only witness Porter put on the stand for either the trial or sentencing phase was Fisher.
Porter did not submit any discovery motions to challenge the prosecutor's evidence, failed to inform the jury that Johnson had originally been charged with the murder, conducted no inquiry into Fisher's background and did not seek any investigative assistance common for murder cases.
When testifying at Fisher's evidentiary hearing in 1998 in the first trial's appeal, Porter explained why he did not seek assistance.
"There was an unwritten rule in Oklahoma County that you would not ask for investigative assistance when you were court-appointed," he said.
During the sentencing phase of the 1983 trial, Porter spoke a total of nine words, according to the trial transcript.
"It was one of the worst cases," said Vicki Werneke, a former Oklahoma Indigent Defense System attorney. Werneke handled Fisher's appeal after the first conviction and has worked dozens of murder cases on appeal.
She said while Porter's problem with his client's lifestyle contributed to a lack of defense, it wasn't the only factor in the attorney's poor representation.
"Even though Porter was well-known for being a civil rights activist, there's a difference between being a civil rights attorney "¦ and doing a capital murder trial," she said. "The two don't equate because the issues involved in capital litigation are vastly different from the issues involved in civil rights litigation."
In the 1996 affidavit, Porter said he was "shocked" to recall he never made any opening or closing remarks to the jury. However, Porter scaled back that statement during his testimony at the 1998 hearing. He then testified the reason he didn't give any opening or closing statements was based on strategy, so the prosecutor could not tear into his defense.
Fisher's parents also had problems with their son's attorney. Fisher's father said in court documents that he flew down to Oklahoma City after receiving a letter from Porter asking him to attend the trial. But when James Fisher Sr. arrived, he said it took him three days to find Porter, and the defense attorney did not tell him the trial date had been changed. When the elder Fisher flew back home, he learned from a phone call that his son had been convicted and sentenced to death. The call came from his son.
At the end of the trial, presiding judge William Kessler praised Porter's work.
"I'd like to just tell you jurors "¦ that you witnessed an extremely well-tried case on the part of both the state and the defendant," the judge said. "I would hope that you would appreciate that, because you don't often get to see that kind of a case."
On direct appeal to OCCA, the court reported it was "deeply disturbed" by Porter's defense, but still upheld the verdicts.
The 10th Circuit Court of Appeals, which reversed the conviction and death sentence, had a different take on Porter's performance.
"The most egregious errors and omissions by Mr. Porter cannot be explained solely by a failure to investigate his client's case but rather point to counsel's failure to act as a diligent and loyal advocate for his client," the court wrote. "Not only did Mr. Porter pursue these actions without any apparent strategy, he also exhibited hostility to his client and sympathy and agreement with the prosecution in ways that put his actions directly at odds with his client's interests."
Porter could not be reached for comment.
TRIAL AND ERROR
After the federal court threw out Fisher's first trial, it seemed life on death row might be avoided. Now Fisher would get a chance to present a better version of his side of the story.
"That's what we were hoping for," Werneke said.
But the new attorney turned out no better than the old. In some ways, it was worse.
Johnny Albert was assigned the case. A local lawyer with a sterling reputation as possibly the best criminal defense attorney in the state, he was nearly undefeated in court trials. Prosecutors and judges praised his ability to take seemingly losing cases and come out ahead. Albert was just what Fisher needed: a strong advocate.
However, timing couldn't have been worse for Fisher. Instead of getting a top-notch attorney with a mind and skill of legendary status, Fisher was handed a lawyer who was deep into alcohol and drugs, according to court documents.
By this time, the courts had recognized Fisher having mental disorders, including paranoid schizophrenia. From the start, Albert and Fisher fought. Several times Fisher asked the court to let him go it alone. But Fisher's erratic behavior in court was enough to convince Judge Susan Caswell an attorney was needed.
Fisher had gained a reputation as a difficult client. Throughout the two decades of his case, he has repeatedly clashed with several of his attorneys. In a request to Caswell about changing his representation or letting him go solo, Fisher wrote:
"If I had access to you right now I would literally tear your head off and scatter your body parts in front of every person in the world watching."
The friction between Albert and Fisher escalated during a hearing in March of 2004, when, according to documents, Albert called Fisher a "little bitch," then asked the deputies to remove Fisher's handcuffs so he could "kick his ass right now." When the trial started a year later, Fisher refused to attend court, leaving Albert to defend a man the jury never saw " a situation left unexplained to the jury.
"It's asking a lot for a juror to presume the innocence of someone they never see, to presume and to find the humanity of someone they never encounter and to hear nothing about that, that is explanatory," said Bryan Stevenson, director of the Equal Justice Initiative of Alabama.
Stevenson testified as an expert witness at Fisher's evidentiary hearing in March.
But just as much as Fisher was being difficult with his attorney, Albert had his problems. In testimony, Albert's secretary described her boss's drinking as "being at its peak" when the Fisher trial approached in April of 2005.
Albert returned a phone call from Oklahoma Gazette but did not want to comment for this story.
At the time of the trial, Fisher was not the only client being neglected by Albert. Several were complaining to the Oklahoma Bar Association about the attorney's lack of work, or even response, to their cases. When the bar summoned Albert to answer the complaints, he admitted his faults and voluntarily suspended his law license.
At a hearing before the bar in May of 2006, Albert spoke about his passion for the legal system and his desire to avoid hurting the profession he loves.
"I know that in the last year and a half, I have not been the lawyer that I can be," he said. "I know there (have) been clients that have not gotten my best.
"I don't like being a lawyer that's brought bad light to the law profession and I want to "¦ I don't hide from this. I'm going to try to use this to show that you can come back from it and try to reclaim the reputation that I once had."
Albert stated that while he had a drinking and substance-abuse problem, he never was intoxicated or under the influence of any drugs during a jury trial.
He sought treatment for his substance abuse and was reinstated to practice law in May of 2007.
Albert was assigned the Fisher case in January of 2004. He had at his disposal numerous boxes of documents, including information on Fisher's mental health issues and transcripts and appeals court rulings from the first trial. But those boxes were moved to the home of attorney Marco Palumbo, who testified during March's hearing in front of judge Watson that he kept the boxes in a shed behind his house, where they stayed " even through the trial. Watson wrote in his recommendation to the appeals court that he considered this event "most shocking." Albert testified he thought he looked through the boxes one time while in the shed.
Other faults identified by Watson in his report to the state criminal appeals court recommending a new trial included:
· Fisher had an investigator, Brenda McCray, assigned to him who could help Albert track down leads and find witnesses. But she was never given any tasks by Albert.
· Albert did not know about the missing fingerprint evidence, or that it had never been introduced at any of Fisher's criminal proceedings.
· When the case was put on appeal, Albert only handed over two folders of documents to the appeal investigators. The boxes in the shed were later discovered.
· While the state called 27 witnesses to testify at Fisher's sentencing trial, Albert called only one: Fisher's mother.
One disturbing aspect according to Watson was the testimony of Dr. Ray Hand. The psychologist told the judge Albert called him in December of 2004, less than a month before the scheduled start of the trial, to perform a mental evaluation of Fisher. Hand said he needed an order from the court to proceed, but Albert didn't respond. The order finally came the following March, just three weeks before the trial's re-scheduled start.
Hand said he interviewed Fisher, produced a report for Albert to use and would be available to testify. Again, no response " which Hand said "was a great source of stress." As the trial started, Hand became anxious.
"I ultimately came up to the courthouse on the date of the trial, during the trial, and bumped into Mr. Clayborne (Albert's assistant) out in the hallway and said, 'What's going on? What do you want from me? What are we doing?'" Hand told the judge. "And (Clayborne) said, 'I don't know,' and he left me hanging, and that's the last I heard from them."
After two days of testimony during the evidentiary hearing, judge Watson concluded Albert's counsel was no different than Porter's. But Oklahoma County District Attorney David Prater said he believes Fisher is guilty and intends to follow through with a trial if the conviction is overturned.
"Mr. Albert's performance was deficient and that but for his errors, there is a reasonable probability the outcome of the trial would have been different," Watson said. "As the Tenth Circuit noted in relation to Mr. Fisher's 1983 trial, the state's case was not overwhelming. 'The trial was in essence a swearing match between Mr. Fisher and Mr. Johnson, either of whom could have committed the murder, and counsel's errors in this regard actively undermined this critical component of the defense.' This finding is equally applicable to Mr. Fisher's 2005 trial."
Two trials, two attorneys, two errors, one murder case still unresolved. "Scott Cooper