Unseemly, Incompetent and Unworthy

Years ago, we rarely (never?) saw a dissent from such things as denial of cert or rehearing en banc.  We have the standing majority decision, which presented a scenario that supported the holding, as well it should, but if there was any real controversy behind it, it was not to be found.  In other words, we never knew just how bad things were in a case where someone lost.

Not any more.  And thankfully so, as in the denial of rehearing by the 6th Circuit in the case of Gregory Lee Wilson.  There is no explanation for the court’s decision not to hear the case en banc, except that it failed to muster a majority of the court’s active judges.  It did, however, catch the interest of Judge Boyce F. Martin, Jr.

Judge Martin wrote a dissent from the denial, and what a dissent it is.  It’s only 7 pages, so there’s no good reason not to read it in its entirety.  You need a bit of enticement?  Here goes:

The rape and murder of Debbie Pooley was a heartbreaking and reprehensible act. But at Gregory Wilson’s murder trial, the state’s ignominy began. Of all the people involved in this case, only two have behaved in a manner worthy of the ideals of our justice system: the courageous Franklin Circuit Court judge who stayed Wilson’s execution; and Andrew Wolfson, the diligent Courier-Journal reporter who exposed the glaring deficiencies in Wilson’s trial . . .

The judiciary failed both Wilson and our legal system in this case because a judge’s unseemly conduct created a risk of bias that undermined the fairness of Wilson’s trial. Brenda Humphrey, Wilson’s co-defendant and the woman who identified him as Pooley’s killer, was having an illicit sexual affair with Judge James Gilliece, a colleague and good friend of the trial judge during Wilson’s trial . . .

Perhaps even more egregiously than the judiciary, Wilson’s defense counsel failed him and the principles of our legal system. From the very beginning of the case, Wilson’s defense was clearly a charade . . .

Is that enough to catch your interest?  What about this:

Over my more than thirty years on the bench, Wilson’s trial stands out as one of the worst examples that I have seen of the unfairness and abysmal lawyering that pervade capital trials. Although I will continue to apply the law of the Supreme Court as required by my oath, I must reiterate my belief that “the idea that the death penalty is fairly and rationally imposed in this country is a farce.”

Or this:


When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system. Until we reform this broken system, we cannot rely on it to determine life and death.


Of course, the aspect of this opinion that makes it astounding isn’t simply Judge Martin’s characterization of the scope and nature of the failings at trial in a capital case, but that it still wasn’t sufficient to convince a majority of the active judges on the 6th Circuit to sign on and agree to rehearing en banc.  What lofty rhetoric moved the original panel to put their stamp of approval on Wilson’s execution?

And as long as we’ve got an ineffective assistance of counsel contribution to the impending death of Wilson, let’s use the opportunity to make another point, somewhat collateral to the case.  Wilson was assigned two lawyers for trial, one a burned out drunk whose business telephone rang at “Kelly’s Keg,” and the other a rookie who had never tried a felony, no less a capital case. 

There’s no point in discussing the drunk.  There’s nothing to say that would change someone like him.  But the rookie, John Foote, apparently meant well but sorely lacked the skills needed to help.  What if Foote had a twitter account?  What if Foote followed you, and you followed Foote back?  What if he twitted endearing twits, told you what a wonderful lawyer you are and you twitted back your friendship of him as well.  He could be one of the circle of dear young lawyers who supported and comforted each other.

Would Foote’s twits, would yours, have given Gregory Lee Wilson a fair trial?  And yet you twit amongst each other as if each of you is the next coming of Clarence Darrow, filling yourselves with the fabulous lie that you’re all the most dedicated, skilled, knowledgeable young criminal defense lawyers around because you make friends over twits.

Sorry if this makes your twitting today seem a bit trivial.  It’s not like Gregory Lee Wilson’s life should matter any more to you than it does to the majority of judges on the 6th Circuit.

H/T Berman

3 comments on “Unseemly, Incompetent and Unworthy

  1. John R.

    I know a story almost as bad as this.

    Two things: first, dwelling in the death penalty aspect confuses the issues and makes the analysis more shrill, less rational. It is more serious to wrongly kill someone than to wrongly imprison them, but it’s a difference of degree, not kind. In the one case you take life, in the other you ruin it. Both are really, really bad and irrevocable (one absolutely, the other practically).

    Second, the incompetence of defense counsel is worth mentioning but it’s over-emphasized. It was hardly the biggest problem in the case. A zealous effort would probably have succeeded at nothing other than getting the defense counsel “disciplined”, imprisoned, or killed. The result for the defendant would have been the same.

    The dissenting judge should reserve his harshest criticism for his brethren on the bench, but as impassioned as his words are, their target is largely the easiest one on the radar screen.

    More than anything or anyone else, the failure here belongs to the judiciary.

  2. Lee

    Scott, love your dearly, etc.., etc…

    Not only does it make Twitter seem trivial, this post makes your point about Twitter seem trivial and petty.

    There’s something to be said for not juxtaposing the sacred and the mundane. I *guess* I get your point, but its so tangential and removed from what happened to this man in Ohio, it cheapens both your talking about what happened there to advance an agenda and your legitimate of the Happysphere (FTR: I hate that term and wish someone could come up with something more biting, The Delusionsphere? Work with that).

    Leave hijacking serious points and material to argue internet politics and ethics (and their own personal shit they’re trying to work thru) to your misguided brethren in the Delusionsphere.

  3. SHG

    I appreciate your point as well as your dear love, but this wasn’t meant as another attack on my issues with the Happysphere.  If it came off that way, then it was my failure to make that clear.  My hope was to take this case and connect it to all the young lawyers who demonstrate no real grasp of their lack of experience and limitations.  They exist in the ether, believing that they brilliant lawyers with the support of other inexperienced lawyers.  They are Foote, but with the feigned support of people they don’t know.  They need to understand that they are Foote, and all the virtual backslapping in the world doesn’t make them better lawyers.

    My point may well have failed and cheapened the post.  But if one young lawyer recognizes him or herself in Foote, and realizes that all the online bluster doesn’t make them a great lawyer, maybe they will focus a little bit more on being the lawyer they pretend to be online and one defendant will be given the defense he deserves.  Maybe not.  I can only try. 

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