- March 2011 Issue
- Lawyer’s Attempt to Keep His Head Above Water Landed a Client on Death Row
Lawyer’s Attempt to Keep His Head Above Water Landed a Client on Death Row
Posted Mar 1, 2011 5:49 AM CST
By Mark Curriden
Abu-Ali Abdur'Rahman needed a really good lawyer. Prosecutors claimed to have a mountain of physical evidence and powerful eyewitness testimony against him in a murder case. And they were seeking the death penalty.
Cellmates at the Nashville jail where Abdur'Rahman was being held told him there was only one lawyer to call: Lionel Barrett.
Barrett, they said, never turned down a client in need, no matter how controversial the case was, how bad the facts were and how impossible the defense seemed.
"I never said no," Barrett confirms. "I took cases no one else would. Everyone deserves representation."
But in 1987, Barrett should have said no. Because he didn't, Abdur'Rahman's life now hangs in the balance.
"It was the perfect storm," Barrett says, looking back on the case some 24 years later. "Everything I could have done wrong, I did."
Now Barrett is pleading for forgiveness from his former client and apologizing to his colleagues in the bar. The case, he says, is "a daily burden" and was one of the key factors that drove him from law practice a decade ago.
"It is every lawyer's nightmare to have a case like this in their life, a case they screwed up so badly. This case is my nightmare," says Barrett, who now works as a nonlawyer adviser for the Davidson County (Tenn.) Election Commission.
"Abu-Ali is on death row because of me. I failed him," he says. "I have no excuse. This is the only case in my entire career that I would do anything to be able to do over again." But he's finding there are no do-overs.
Abdur'Rahman's case, which is once again in the hands of the 6th U.S. Circuit Court of Appeals at Cincinnati, has been passed up and down the state and federal appellate systems more times than Brett Favre comebacks. At the heart of the appeal is one question: Did Barrett's ineffective representation, combined with claims of prosecutorial misconduct, cause Abdur'Rahman's trial to be constitutionally flawed?
THE GO-TO GUY
If you think this is a story about another unqualified, inexperienced, court-appointed lawyer botching another death penalty case, think again.
During the 1970s and '80s, Lionel Barrett was widely recognized as the premier murder defense attorney in Middle Tennessee. When the state brought back capital punishment, Barrett was the first lawyer in his region to handle a death penalty case. He tried more murder and death penalty cases during those two decades than any other lawyer in Nashville, according to colleagues, and is credited with saving several clients from the electric chair. A few of his murder defendants walked free. One grateful client even named a son Lionel after Barrett successfully defended the man against murder charges.
Known for powerful closing arguments, Barrett won honors from the bar association and civil liberties groups, and the Tennessee Association of Criminal Defense Lawyers created an advocacy award in his name.
Barrett's professional successes extended beyond the criminal defense arena. He successfully challenged the state's mandatory moment of silence in public schools and sued the state to allow the Communist Party's political candidates to be on the election ballot.
"Lionel was a damn good lawyer," says Nashville defense lawyer William Redick.
Redick is a former colleague of Barrett's who now represents Abdur'Rahman. "Abu-Ali believed he really got lucky when Lionel agreed to defend him in 1987. But Lionel's defense—or lack thereof—is unquestionably the reason why Abu-Ali may be put to death."
Barrett is a soft-spoken, kindhearted man who will do anything to help friends and neighbors, say those who know him. A leader in pro bono, he tutored many of Tennessee's brightest lawyers, including Redick. In interviews he has expressed obvious sorrow and regret, and he comes across as a truly sympathetic character.
He insists he's never had problems with alcoholism or drugs, and no one contends otherwise. "I ask myself all the time, how did I let this happen?" he says of the case. "I have no excuses. I offer no justifications."
What Barrett did have was a cash-flow problem. While he never had trouble signing up new clients, Barrett says he struggled to collect fees, so he was always in debt. Instead of focusing on collecting what he was owed, he took on more cases, thinking those would help generate more revenue.
Instead, they just increased his workload.
By the time he agreed to represent Abdur'Rahman, Barrett says, he had gone several years without taking off a single day from work. "I wasn't a workaholic, because workaholics enjoy it. I had to work all the time because I was so far behind. I was burned out. I was overworked. I was in financial trouble."
Barrett originally agreed to represent Abdur'Rahman for the entire death penalty case for $10,000, later asking for an additional $5,000, which he never collected.
A GRISLY MURDER
On the evening of Feb. 17, 1986, Abdur'Rahman and co-worker Harold Devalle Miller went to the home of Patrick Daniels, a small-time marijuana dealer in Nashville. Armed with unloaded guns, they intended to scare him out of the neighborhood.
According to court records, the pair forcibly entered Daniels' duplex, where they also found Daniels' girlfriend Norma Norman and her two children. The children were locked in a bedroom. Norman was bound with duct tape, blindfolded and stabbed. Daniels was bound with tape and stabbed six times in the chest, piercing his aorta.
Two days after the attack police identified Abdur' Rahman and Miller as suspects. Miller fled the state, but authorities found Abdur'Rahman at work, acting as if nothing had happened. Police seized his coat and sent it to the crime lab for testing.
Abdur'Rahman told police he went to Daniels' duplex but said he had no memory of the crimes. Miller was arrested about a year later and reached a plea agreement: In exchange for his testimony against Abdur' Rahman, he would be spared the death penalty.
Barrett, now 69, hasn't practiced law in more than a decade. He has forgotten much about his defense of Abdur'Rahman, which he admits is "quite ironic" because his client's primary defense was that he didn't remember committing the crime.
"Lionel probably doesn't remember much because, honestly, he didn't do that much. He was detached from this case," says Redick, who still considers Barrett a good friend. "The one thing we know about death penalty cases is that the quality of the defense means everything. Abu-Ali's case only emphasizes that."
Barrett first met Abdur'Rahman—before converting to Islam, his name was James Lee Jones—in the Nashville jail in winter 1986. Abdur'Rahman had a lawyer for his initial court hearings, but he wanted someone with more experience. At the time, Barrett's practice was bustling. He had several other trials under way, including another death penalty case in a neighboring county scheduled to go to trial a few weeks after Abdur'Rahman's.
Barrett did not file an appearance on the case for several months after he was retained—in March 1987, according to court records. During that gap, Abdur' Rahman was, in effect, unrepresented. The prosecution and the court did not consult with Barrett on anything related to the case.
Barrett's own files show that he did no work on the case until May 11. His first documented activity occurred on June 1, when he wrote a letter to the trial judge apologizing for missing a court-ordered deadline for filing pretrial motions. "Some how I had failed to note this date on my calendar," he wrote. At that point, Abdur'Rahman's trial was five weeks away.
Nine more days slipped by without work on the case when on June 10, according to Barrett's personal notes, he directed his staff to get a copy of the state's mental evaluation of Abdur'Rahman. The judge signed an order turning over the records on June 15.
Barrett interviewed his client for the first time on July 1—five days before jury selection. He wrote an internal memo to his staff assistant: "I think it is fair to say that probably between now and Monday, including part of this weekend, that you, Sumter and I are going to have to spend a lot of time together getting ready for this death penalty case since we have a lot of work to do on this case. We will get coordinated in the next day or so."
That same day Barrett notified Davidson County Assistant District Attorney John Zimmermann that he might pursue a mental illness defense. Zimmermann responded with a motion in limine, arguing that there was no evidence that Abdur'Rahman suffered any "mental disease, defect, emotional disturbance or even a personality disorder." Since Barrett had offered no evidence to support a mental illness defense, the judge ruled for the prosecution.
LOSING TIME AND MONEY
Realizing that the defense was completely unprepared for trial, Sumter Camp, a lawyer Barrett recruited to help with the Abdur'Rahman case, drafted a motion for a continuance, as well as a motion to declare the defendant indigent. If successful, the motions would have provided both the time and the funds for investigation and experts. Camp, now a federal public defender in Nashville, later testified that Barrett didn't file either motion with the court.
"I just didn't spend enough time on the case," Barrett says looking back. "I had a heavier caseload than I should have had. All of a sudden, the trial date was upon me."
Meanwhile, Zimmermann was forging ahead on the prosecution. He supplied state mental health officials examining Abdur'Rahman with information about the defendant's second-degree murder conviction in 1972, while he was in prison. The prosecutor, in a memo, wrote that Abdur'Rahman had not raised mental illness as his defense then, and that the murder had been about a drug turf war.
But according to court records, Zimmermann had in his possession documentation that Abdur'Rahman had been raped in prison in 1972, that he feared being raped again, and that he had claimed the only way to eliminate the threat was to kill the predator. Moreover, his primary defense in the incident was that he was mentally ill.
Abdur'Rahman—who spent much of his life in state mental institutions—was diagnosed with multiple mental illnesses and repeatedly displayed psychotic tendencies, including a belief that he and his wife were creating the future Messiah. His childhood was rife with beatings, sexual abuse and outright torture at the hands of his father.
Tennessee mental health evaluators were told nothing about Abdur'Rahman's turbulent psychological past because Barrett didn't know and never asked.
"My biggest failure was that I did not explore more into the facts of his mental illness and mental history," says Barrett. "Again, I have no excuse for how I mishandled this case," Barrett says. "I was never able to establish a bond with Abu-Ali, and that was more my fault than his."
Jury selection began on July 6. Four days later, on the final day of voir dire, Barrett didn't show up. Instead, he let Camp help pick Abdur'Rahman's jury.
Barrett no longer recalls why he missed that final day of jury selection. He suspects that he had a conflicting court date in another pending death penalty case in a nearby county.
Three days later, Barrett stood before the jury to give his opening statement. According to his own notes, he had yet to interview a single witness or conduct any type of independent investigation on his client's behalf. His opening statement was three paragraphs long, taking less than a page of the trial transcript.
Eyewitnesses for the prosecution testified that they saw the defendant, wearing a dark wool coat, enter the victim's apartment. Norman, the victim's girlfriend, testified that Abdur'Rahman, clad in a dark coat, tied her up, blindfolded her and stabbed her.
Co-defendant Miller, the state's star witness, testified that he and Abdur'Rahman went to Daniels' home together, but that Abdur'Rahman's intent was to steal and kill. He told jurors that he watched as Abdur'Rahman, still wearing that long, dark wool coat, climbed on top of Daniels as the victim begged for his life and then repeatedly plunged the knife into his chest. Jurors noticed dark stains on the coat, which they were led to believe was Daniels' blood.
But it wasn't. Crime lab tests showed no evidence of blood on Abdur'Rahman's wool coat. The stains actually were paint from his work.
Prosecutors entered the lab tests in the official case file and sent a copy of the results to Abdur'Rahman's original lawyer. But Barrett never requested the initial case file from the lawyer and never checked the public court files. As a result, he allowed a critical piece of exculpatory evidence to become the most damning evidence at trial.
Compounding the oversight, Miller's clothes were never tested for blood, either by Barrett or the police.
"Knowing about the coat would have gotten me at least one or two jurors," Barrett says. "It would have raised reasonable doubt and undermined Miller's testimony. I made a big mistake there."
Recent court records contend that Miller gave multiple statements to police and prosecutors that conflicted with his trial testimony. Miller's original statements to police echoed those of Abdur'Rahman. Only days before trial, Miller suddenly revised his testimony to claim that Abdur'Rahman went to Daniels' home with the intent to kill him. Again, Barrett never knew about these conflicting statements because he never asked for them and prosecutors never disclosed them.
After the prosecution rested, Barrett called no witnesses, presented no evidence and offered jurors no alternative theories.
"A lot of defense attorneys back in the 1970s and 1980s, myself included, got away with just walking in and trying a case," says Barrett. "But I didn't recognize that times had changed. I put too much emphasis on closing arguments. There used to be a time when a strong closing argument would convince a couple jurors."
In hindsight, Barrett says he should have focused more on jury selection, mental illness and other issues that started being raised at the time in death penalty litigation.
The trial took less than two days, and the jury needed only an hour to find Abdur' Rahman guilty of murder.
During the sentencing phase, Abdur'- Rahman took the witness stand to plead for his life. He acknowledged that he went to Daniels' house with Miller. He insisted that he did so on behalf of a local religious group to scare Daniels out of the neighborhood. Abdur'Rahman told jurors that he remembered taping and blindfolding Norman, but then he blacked out.
"I was over there on this young lady and realized what I was doing; I had stopped," he testified. "After I tied her up, I can't give you—to you in detail—how things transpired insofar as Patrick Daniels' death."
On cross-examination, Zimmermann reminded him that Miller's undisputed testimony and the stains on the coat pointed to him as the killer. Abdur'Rahman broke down: "I'm going to submit to the fact that I am the individual that committed these particular felonies or assaults."
Before the end of the trial, Barrett says, he finally demanded all documents related to Abdur'Rahman's 1972 murder conviction. He says Zimmermann told him that would be a mistake. Pointing to an FBI agent who was just out of earshot, Zimmermann told Barrett that the agent would testify that the killing was simply a turf war in prison.
"John then called the FBI agent over, introduced us and then walked away," says Barrett. "I didn't even ask the agent about it."
In later testimony, Zimmermann called the deception of Barrett a trial "tactic" that had no real impact on the jury's verdict—an argument the courts have accepted.
At the close of the sentencing phase, Zimmermann mocked Abdur'Rahman's claim of blackouts and told jurors that there was no evidence or expert testimony that the defendant suffered from any kind of mental illness. Zimmermann told jurors that the defendant had killed before, as part of a turf war in prison, and that he shouldn't be allowed to kill again. The jury took three hours to sentence Abdur' Rahman to death.
A FINAL APPEAL
In the two dozen years since Abdur'Rahman was sentenced to die, his case has meandered through the procedural quagmire of the death penalty appeals process.
The state appointed two new lawyers to handle the appeal and post-conviction proceedings. Neither had any experience handling death penalty appeals, and one no longer practiced law, according to court documents.
The Tennessee Court of Criminal Appeals rejected Abdur'Rahman's post-conviction appeal in a four-page opinion in 1995. Only two paragraphs discussed Barrett's ineffectiveness and even less was written about prosecutorial misconduct. The Tennessee Supreme Court denied the application to appeal and has never reviewed or ruled on the actual claims.
Instead, the case has bounced up and down the federal courts on a habeas corpus petition. A federal court initially reversed the death sentence due to Barrett's inadequate performance, but the 6th Circuit reinstated the sentence despite the fact that the Tennessee Attorney General's Office challenged none of the district court's Sixth Amendment findings.
Abdur'Rahman was once within 36 hours of execution, only to have Justice John Paul Stevens issue a stay. His case is now back before the 6th Circuit, only this time the same three-judge panel will review allegations of prosecutorial misconduct.
Complicating matters is the standard of review. There is a split among the circuits as to whether the misconduct claims should be reviewed individually or cumulatively, in light of Barrett's ineffectiveness. This circuit split is likely to bring the U.S. Supreme Court into the case, says Thomas Goldstein, a Washington, D.C., practitioner who is now part of Abdur'Rahman's legal team.
Vanderbilt University law professor Christopher Slobogin, who focuses his studies on criminal defense, evidence and mental health law, agrees. "Under any standard set by the Supreme Court, this case should be reversed," he says. "There is no question that this was ineffective assistance of counsel. The prosecutor's conduct was clearly improper. The fact that the state and federal appellate courts have not reversed is inexplicable."
While Barrett accepts blame for the outcome, he is noticeably agitated when the issue of prosecutorial misconduct is raised.
"[Zimmermann] lied to me," he says. "He and I had tried several cases against each other before and I thought I could trust him. But he lied to me about the 1972 murder, and he misled me on several other very important things."
The state attorney general handling the Abdur'Rahman appeal declined to comment. However, the Davidson County District Attorney's Office, which prosecuted the case, rejects any claim that Barrett's defense was unconstitutionally defective and denies illegally withholding material evidence from the defense.
"We agree with the various court rulings that the defendant received a fair trial and competent representation as these conclusions are based upon a thorough review of the entire record," the prosecutor's office said in a statement. "While the courts have all agreed that there were deficiencies in Mr. Barrett's performance, every state and federal judge, except for [U.S. District Judge Todd] Campbell [of the Middle District of Tennessee in a federal habeas corpus proceeding] in 1998, has agreed that those deficiencies did not affect the convictions or the sentence."
The prosecutor's office points out that none of the defense's "unsupported assertions" have been recognized by any court that has heard the claims.
"Our office emphatically denies that the prosecutors ever suppressed or withheld any evidence that should have been provided to the defense under the law," according to the statement. "Likewise, at no time did any prosecutor use false testimony or make false statements to the court or mental health officials."
Barrett says he can only accept responsibility for his own actions. His client deserved better, he says. "I should have spent a lot more time investigating the facts. I should have interviewed his family. I should have explored his mental illness. I should have told the judge the morning of the trial that I wasn't ready to go forward and just refused to do it."
"What I really should have done," he says, "is not taken this case."
Lionel Barrett says financial troubles caused him to take on too big of a caseload, which was a contributing factor in the mishandling of Abu-Ali Abdur'Rahman's murder trial.
William Redick: "Lionel was a damn good lawyer ... but his defense—or lack thereof—is why Abu-Ali may be put to death."