FOLIO NEWS

DEAD WRONG

After giving ineffective counsel in more than one death penalty case, the Public Defender’s second-in-command may no longer be allowed to do his job

Posted

A woman from Meals On Wheels found Andrew Dwelle dead on the bedroom floor of his Jacksonville apartment on Jan. 9, 1997. Dwelle was 82 years old and needed help bathing, dressing and preparing meals. He’d been stabbed twice in the neck. One of the wounds was five inches deep.

Jacksonville police arrested Raymond Morrison the next day. He confessed he’d killed Dwelle during a fight after he’d grabbed some of the old man’s money.

Morrison even led police to the knife.

It sounds like an open-and-shut case. A jury found Morrison guilty of first-degree murder in 1998 and sentenced him to death. But in September 2015, a circuit court judge threw out the verdict and the death sentence and ordered a new trial.

Judge Henry Davis said Morrison’s attorney failed to present key evidence. One omission: Morrison had an alibi. Three witnesses said he wasn’t even in Jacksonville when Dwelle was murdered. Though Morrison, intellectually, is barely functional, and he’d previously confessed to and spent time in prison for a crime he did not commit, no expert testified as such. The actual perpetrator would have testified, but Morrison’s attorney never put him on the stand.

Morrison’s attorney was Refik Eler. And this is the second time a court has ruled the Jacksonville attorney gave ineffective assistance of counsel in a death penalty case. It’s a big deal. Under a law enacted in 2013, a defense attorney with two ineffective counsel findings is disqualified from representing death penalty clients for five years. Also, Eler is Public Defender Matt Shirk’s chief assistant public defender, leading the public defender’s homicide division.

State Attorney Angela Corey may be Florida’s death penalty queen. Since she took office in 2009, she’s secured more death sentences than any other prosecutor in Florida, and more than most other places in the United States. On the other side of the bar, Corey and her prosecutors face a chief assistant public defender with a history of providing such inadequate lawyering that it violated his clients’ constitutional rights to a fair trial and to legal representation.

In a third case, the court criticized Eler’s performance but did not overturn the death sentence. Currently, two other cases of Eler’s are under court review.

Gung-ho prosecutor. Failed defense. “It’s a deadly combination,” says Stephen Harper, of Florida International University’s Death Penalty Clinic.

Though no one seems to know quite how it will work, the Timely Justice Act of 2013 disqualifies a defense attorney with two ineffective assistance of counsel rulings in a death penalty case from those kinds of cases for five years. The Timely Justice Act does not, however, address whether it’s applied retroactively. Though the ineffective judgments were issued in 2013 and 2015, Eler’s cases went to trial in 1995 and 1998, more than a decade before he joined the public defenders office in 2009.

While it’s common for someone convicted of a crime to blame his lawyer, filing an ineffective counsel motion is one of the few ways to fight bad lawyering. And it’s not easy to win a judgment. The U.S. Supreme Court requires a finding of both deficient representation and that an attorney’s omissions might have changed the jury’s decision. The Innocence Project found that 81 percent of the first 255 defendants exonerated by DNA lost ineffective assistance claims.

In an evidentiary hearing, Eler testified he decided not to present expert testimony on another death penalty defendant’s mental illness and hospitalizations, suicide attempt and brain abnormalities as a strategic decision, as a jury weighed whether to recommend life or death for Michael Shellito. Eler thought such information might make the jury less sympathetic.

The Florida Supreme Court disagreed. It threw out Shellito’s death sentence in 2013 after reviewing what the court described as a “a plethora of evidence” from multiple experts on Shellito’s substantial mental health problems, possible organic brain dysfunction, childhood sexual and physical abuse and neglect, and history of alcohol and drug abuse. The court ruled Eler’s failure to fully investigate mitigation in the case deprived the judge and jury of information it needed when considering life in prison or death.

An adequate defense is critical in rendering justice, Harper says.

“It shortchanges the jury in making a fully intelligent and fully informed decision, when making the most important decision any person can make,” Harper says, “a life and death decision.”

And there’s more.

A third ineffective assistance of counsel claim was made against Eler by death row inmate Luther Douglas, though it did not result in Douglas’ death sentence being overturned. But in its 2012 decision, the Florida Supreme Court criticized Eler’s lack of mitigation work for the penalty phase of the trial. Douglas was found guilty of first-degree murder and sentenced to death in 1999 for the sexual battery and murder of 18-year-old Mary Ann Hobgood. Attorney Rick Sichta has appealed the ruling to the U.S. Supreme Court.

And in June 2015, the Florida Supreme Court “made it abundantly clear,” according to The Florida Times-Union, the lawyers representing a fourth death penalty defendant, Thomas Bevel, failed him. Eler was the lead attorney. A jury found Bevel guilty of first-degree murder and sentenced him to death in 2005 for the murder of his roommate Garrick Strickland and Strickland’s 13-year-old son. In oral arguments, one justice said it was hard to argue the defense had done a competent job during the penalty phase because it never hired anyone to investigate mitigating circumstances in Bevel’s life. Attorney Rick Sichta described Eler’s mitigation as an “Eleventh Hour” investigation that failed to uncover a host of mitigating factors.

Glossing over mitigation seems to be a pattern with Eler.

Wilton Manors attorney Linda McDermott, who prevailed in arguing both Shellito’s and Morrison’s claims of ineffective representation, questions Eler’s knowledge of death penalty defense.

“In dealing with Mr. Eler between these two cases,” McDermott says, “it’s clear to me that he doesn’t understand the defense available to someone facing the death penalty.

“He is the second person in charge in the public defender’s office, and he doesn’t seem to understand what the U.S. Supreme Court has said is a [legitimate] defense in a capital case.”

Neither Shirk nor Eler returned multiple calls from Folio Weekly requesting comment on whether Eler would continue to lead the homicide defense unit.

Both Sichta and Harper say Shirk should remove Eler from his role as top defense counsel now. Sichta says leaving him in charge will only lead to more claims and ultimately cost taxpayers.

“He may be a good administrator and he may be an improved attorney [than when he defended Shellito, Morrison, Bevel and Douglas],” says Harper, “but if I were the public defender, I would not want someone found deficient [three] times heading up my death penalty defense.”

Harper and others say it’s not just Eler. An American Bar Association article in 2009 reported on an ABA study that concluded public defenders nationally had too many cases and too little funding to mount an adequate defense. It described the defense of indigent clients as a crisis, where ineffective counsel was the most frequently raised and too often legitimate claim.

While Duval County might be among the deadliest counties in the state and in the nation, Harper predicts the county might also lead in death sentences overturned because of bad lawyering.

“They may be first in death sentences, but they will also be [first in] getting reversals,” McDermott predicts. “Constitutional rights are being overlooked in that county because of overreaching of the prosecution and inadequacy of the defense bar.”

No comments on this story | Add your comment
Please log in or register to add your comment
Array ( [image] => https://cdn2.creativecirclemedia.com/folioweekly/original/20191127-131258-SLJ_Wallpaper.jpg [url] => http://folioweekly.com/supportlocaljournalism/ )