New: video presentation about Mr. Osborne's case
New: Amnesty International Urgent Action Appeal:
[Note: this action aimed at the Parole Board is now not needed (as of 6/2/08)]
PUBLIC AI Index: AMR 51/048/2008 29 May 2008
UA 142/08 Death penalty/Imminent execution
USA (Georgia) Curtis Osborne (m), black, aged 38
Curtis Osborne is scheduled to be executed in Georgia at 7pm local time on 4 June. He was sentenced to death in August 1991 for two murders in August 1990. He has a clemency hearing at 9am on 30 May before the Georgia Board of Pardons and Paroles. He has been on death row for nearly 17 years.
The bodies of Linda Seaborne and Arthur Jones were found in the front of a car in Griffin, Georgia, on 7 August 1990. Both had been shot, apparently from the back seat of the vehicle. Curtis Osborne was arrested and subsequently told police that he had shot Jones, to whom he owed money, because Jones had threatened to beat him and was reaching for a weapon. On 14 August 1991, a jury convicted Osborne on two counts of murder, finding that Seaborne’s murder was committed in the course of Jones’s murder, an aggravating circumstance that made the crime eligible for the death penalty. The trial moved into the sentencing phase at which a number of witnesses, including Osborne's stepfather, sister, girlfriend, former employer and acquaintances testified to his good character and their experience of him as a hardworking and non-violent person. Curtis Osborne also testified on his own behalf: "There were certain circumstances that took place that night [of the crime], and sometimes things happen out of emotion and not just deliberation. Just things sometimes happen in certain ways. I want to say I’m sorry and I just ask you people to have mercy on me." On 15 August 1991, the jury recommended that Curtis Osborne be sentenced to death.
Among the issues raised on appeal has been the claim that Curtis Osborne was denied effective legal representation at the sentencing phase because the trial lawyer failed to present expert mental health evidence in mitigation. Osborne’s federal appeal lawyer has presented evidence to the courts that Curtis Osborne suffered from major depressive disorder and post-traumatic stress disorder, and that the trial lawyer could have hired mental health experts to present such evidence to the jury in arguing for a sentence of less than death. The courts have rejected the claim of inadequate assistance of counsel.
At the 30 May clemency hearing, Curtis Osborne’s lawyers will present the testimony of a psychiatrist, Dr George Woods, who has interviewed Osborne and family members and reviewed relevant medical records. He says that "none of this was done at the time of trial, except for a brief interview of Mr Osborne". Dr Woods states that medical health testimony would have been important at trial to help to explain a crime that was "so out of character with the previous person that Mr Osborne had been for many, many years." Dr Woods found that Osborne comes from a "family of significant physical abuse, emotional abuse as well," and that his childhood was "profoundly isolated and abusive." He has also concluded that Curtis Osborne’s family has a "significant history of psychiatric disease" going back at least three generations, and that Osborne himself suffered from a major depressive disorder. From 1989, after losing his job, his mental health deteriorated and, according to Dr Woods, Osborne began to self-medicate with cocaine. Dr Woods suggests that the combination of Osborne’s drug use and his mental health problems would have led to a “magnification of the paranoia, of the hyper-vigilance, of the hyper-reactivity, and of the misperception of reality,” and “impaired his ability to conform his behaviour to the law”. Such evidence, Dr Woods suggests, could have helped to explain to the jury the "tremendous change" in the defendant leading up to the crime.
Curtis Osborne’s federal appeal lawyer has also claimed that the trial lawyer’s failure to do an adequate investigation of his client by hiring expert witnesses was born of that white lawyer’s racial animosity towards his African-American client. The appeal lawyer obtained a sworn affidavit from a white man, Gerald Huey, who had been in jail with Osborne before Osborne’s trial and who shared the same trial lawyer, Johnny Mostiler. The affidavit states: "The first time I recall Mr Mostiler saying anything about Curtis Osborne’s case was when he said, 'the little nigger deserves the death penalty.' I was shocked because I knew that Mr Osborne had not gone to trial yet… That wasn’t the only time Mr Mostiler said something like that though. I recall Mr Mostiler telling me that I wouldn’t believe the amount of money he was going to spend on my case. He said he was going to hire a private investigator and get expert witnesses. He said the money he would spend on me was going to be a lot more than he would spend on Mr Osborne because 'that little nigger deserves the [electric] chair.' Mr Mostiler made similar comments to me both before and after Mr Osborne’s trial."
Another lawyer has recalled a case from around 1992 in which another African-American client of Johnny Mostiler, Derek Middlbrooks, stated in open court that Mostiler had referred to him as “one dumb nigger” for not accepting the plea bargain offered by the state. Questioned by the court, Mostiler reportedly replied that he could “not recall” whether or not he had said this. Curtis Osborne’s lawyer has recently obtained the transcript of proceedings in the Middlbrooks case, in which the defendant seeks a new lawyer because of Mostiler’s alleged use of this racial epithet. According to the transcript, Middlbrooks says that Mostiler "indicated to me that he wouldn’t, he couldn’t go up there around those niggers because them niggers would kill me." Middlbrooks subsequently states: "I find it kind of hard, you know, kind of hard to have an attorney to represent me when he uses those types of words; it doesn’t help my confidence in my attorney, you know." Questioned by the court, Johnny Mostiler responded that he could not remember if he had used this epithet, and also that he did not "use those terms out in public."
Since the USA resumed executions in 1977, 1,102 prisoners have been put to death, 41 of them in Georgia. There have been three executions in the USA this year, including one in Georgia on 6 May. On 22 May, the Georgia Board of Pardons and Paroles commuted the death sentence of Samuel David Crowe to life imprisonment without parole shortly before he was due to be executed. Although it gave no reason for its decision, the Board had heard testimony from various people, including a former prison officer, about Crowe’s model behaviour and his remorse while on death row. In Curtis Osborne’s case, the Board will hear statements from the prison chaplain about Osborne’s constructive role on death row, and from Osborne’s daughter as to the important role he continues to play in her life.
In late 2007, the UN General Assembly passed a landmark resolution calling for a worldwide moratorium on executions. Amnesty International opposes the death penalty in all cases, unconditionally (see ‘The pointless and needless extinction of life’: USA should now look beyond lethal injection issue to wider death penalty questions, http://www.amnesty.org/en/library/info/AMR51/031/2008/en).
RECOMMENDED ACTION:
Please send appeals to arrive as quickly as possible, in English or your own language, in your own words:
- expressing sympathy for any relatives of Linda Seaborne and Arthur Jones, explaining that you are not seeking to excuse the manner of their deaths or to downplay the suffering caused;
- opposing the execution of Curtis Osborne;
- expressing concern that the jury which sentenced him to death never heard expert mental health evidence, that could have helped to explain the defendant’s conduct at the time of the crime;
- expressing concern at the allegations that Curtis Osborne’s trial lawyer used racial epithets to describe his African-American client in this and at least one other case;
- welcoming the clemency granted to Samuel David Crowe;
- urging the Board of Pardons and Paroles to grant clemency to Curtis Osborne.
APPEALS TO:
State Board of Pardons and Paroles, 2 Martin Luther King, Jr. Drive, SE
Suite 458, Balcony Level, East Tower, Atlanta, Georgia 30334-4909, USA
Fax: +1 404 651 8502
Email: Webmaster@pap.state.ga.us.
Salutation: Dear Board members
COPIES TO: diplomatic representatives of the USA accredited to your country.
PLEASE SEND APPEALS IMMEDIATELY.
Mr. Osborne's Trial Lawyer:
Source: Atlanta Journal Constitution
Sunday, 2/9/2003
Section Letter: A1
Defendant refuses to plead guilty, wins Swamped lawyer advised plea deal
BILL RANKIN / Staff,
Marcus White couldn't believe what he was hearing.
Plead guilty, the lawyer was saying, and take the 10-year prison sentence offered by the prosecution.
The lawyer was Johnny Mostiler, Spalding County's public defender, who was known by prosecutors and judges as a gifted trial lawyer who had a way with juries and occasionally a trick up his sleeve. Still, Mostiler persuaded most of his clients to enter guilty pleas.
He had little choice. Responsible for more than 600 criminal cases at a time --- the result of an underfunded, piecemeal state system of defending the poor --- Mostiler (pronounced MOSS-steller) handled far more than the maximum 150 felony cases the Georgia Supreme Court recommends.
Guilty pleas are the norm in Georgia's overwhelmed and dysfunctional indigent defense system. With more than 80 percent of all Georgians charged with crimes unable to afford a private attorney, some publicly funded lawyers are so overloaded they admit to pushing clients into pleading guilty without knowing enough about individual cases.
With diamond rings and gold chains, a black Stetson hat and a striking handlebar mustache atop a silver goatee, the heavyset Mostiler was a fixture at the large brick courthouse in downtown Griffin. He smoked incessantly, lighting one cigarette with the one he'd just finished. He drove a Cadillac El Dorado convertible, almost always with the top down, and seemed to know everyone in town.
"They're offering you 10 years, " Mostiler told White, who had been in jail 10 months, charged with the April 8, 1999, armed robbery of a Chevron station in Griffin. "You might do eight."
White, 26, began to get angry. He had been waiting for eight months just to see his lawyer and now, after about a minute of conversation, he was being asked to spend 10 years in prison for a crime he insisted he did not commit.
White sat in the small jailhouse conference room and seethed.
"I'm not taking a day, a month, an hour, " he said.
And White had had it with the Spalding County Jail. For the 10 months he'd been locked up, he'd had to wear the same underwear and socks and had gone weeks at a time without being able to set foot outdoors.
But Mostiler, waving White's case file in his hand, said there was too much evidence. If you go to trial and get convicted, you may get 25 years, he warned. Take the deal.
White wondered whether Mostiler had even bothered to read his file. He could see the lawyer knew little about his case and had done no investigation.
After White protested again, Mostiler ushered him out and called in his next client.
White sat down on a bench outside the conference room. He'd been in trouble with the law before back in Milledgeville, his hometown, for shoplifting and writing bad checks. He could see what lay ahead. With the trial less than a week away, Mostiler would return and try again to get him to plead guilty or go to trial unprepared to defend the case.
In testimony last year before a Georgia Supreme Court commission studying indigent defense, IndianaUniversitylaw professor Norman Lefstein said that "when there is not effective defense, the risk of convicting the innocent is a real reality throughout the country." Lefstein, who helped write the American Bar Association's standards for criminal justice, added, "There are some innocent people that go to prison because they don't have effective representation."
Changes in the system may be on the way. The commission recently recommended an overhaul in the system after determining that in many areas of the state, Georgia's indigent defense system results in unfair and often unconstitutional treatment of poor criminal defendants. Legislation to change the system was introduced last week, and a hearing on the bill is scheduled for Monday.
At the time White entered the indigent defense system, Mostiler split his 600-plus felony cases with an associate lawyer. SpaldingCountypaid him $430,000 a year, which included funds for other lawyers to handle misdemeanor and juvenile cases.
On top of the back-breaking public defender load, Mostiler ran a personal injury civil litigation practice and represented death penalty defendants.
Mostiler's associates say he could handle his caseload. And even former courtroom adversaries praise his legal skill.
"Mostiler was an excellent lawyer, " said Spalding District Attorney Bill McBroom. "He would take cases where you didn't think defendants had a chance, and you'd be fighting for your life."
'Am I under arrest?'
White was sound asleep in his apartment when police officers pounded on his door one morning. They were there to arrest him as the prime suspect in the armed robbery of a Chevron station that had occurred just five days before.
Having just finished the night shift at his new assembly line job, White was groggy when he went to the door. The sight of six police officers standing outside jolted him awake. He had recently been released from a probation diversion center. But he was now earning a steady paycheck, had a girlfriend and was keeping up the rent for his new apartment. For the first time in a long while, White felt grounded.
Within minutes of entering his apartment, the police handcuffed White and asked if they could take a look around.
Yes, he said, search all you want. Police did not find what they were looking for: clothes the assailant was wearing, a gun or cash from the robbery. Nonetheless, they took him in.
At the police station, arresting officer Mark Butler told White that a witness had picked him out of a photo lineup. White thought it was a joke. "Am I under arrest?" he asked. "When is this going to be finished? I need to be at work tonight."
He got no answers. Instead, he was interrogated by two officers.
The questioning was equally mystifying.
"Are you off the rock yet?" one officer asked, suggesting White was addicted to crack cocaine.
White shot back that he didn't do drugs and had not missed a day of work, including his evening shift, which began about five hours after the robbery.
But police were not swayed and charged him.
What police knew was that a man wearing a white tank top and blue jeans had entered the Chevron station shortly after noon on the day of the robbery, threatened the store's clerk and left. Five hours later, a man who appeared to be wearing the same clothes and a stocking mask with holes cut out for his eyes entered the station pointing a gun at a different clerk behind the cash register. He left with $526.
White gave police a detailed account of where he'd been that day. At the time the man in the white tank top first walked into the Chevron station, White said, he had been waiting for the cable man to come to his apartment to hook up his TV. Later that afternoon, he said, he'd been with his girlfriend showing off his new cable channels and getting a bite to eat --- a chicken and steak Gordita at Taco Bell.
But police had targeted White after a Griffinradio station reported to police that an anonymous caller said White was the culprit.
Authorities put a copy of White's photograph among five others and showed it to witnesses. The store clerk who had been accosted hours before the robbery and a woman living behind the Chevron station who saw someone leaving the station after the robbery picked photo No. 5 --- White's --- out of the lineup.
White's family raised $2,000 for Griffinlawyer Arleen Evans to represent him through a preliminary hearing, at which a magistrate judge in May 1999, a month after White's arrest, determined there was enough evidence to forward the charges to a grand jury.
During that hearing, prosecutors introduced a surveillance camera videotape of the incidents at the Chevron station as evidence against White. The tape shows a man wearing a white tank top approaching the cashier at 12:58 p.m. and then leaving. The man's face is hard to make out. Five hours later, it shows the masked robber with the same clothes and build leaving with the cash.
GBI test results missing
Evans' representation ended in June, when White's family ran out of money to pay her. But just before she left, she helped arrange for White to give hair samples to police to see if they matched those inside the robber's stocking cap, which police found behind the Chevron station.
On Oct. 6, 1999, a GBI microanalyst determined he could not match White's hair with the hair taken from the ski mask.
When the SpaldingCountygrand jury met that same day, it didn't know about the hair test. The test results, an essential piece of evidence, had yet to be forwarded to the DA's office. White was indicted.
Four months later, Mostilerpaid his first call on White and urged him to plead guilty and take the 10-year sentence.
Thinking of the deal Mostilerhad just recommended, White, sitting on a bench inside the jail, looked up and saw another conference room with Mostiler's assistant, Rosamund Braunrot, inside. He made his way in and asked to see his file.
Looking through it, he noticed the eyewitness descriptions of the robber didn't match his height. The witnesses described the robber as standing 5 feet 7 or 5 feet 8. White is 5 feet 11.
White also noticed something was missing: the GBI test results of his hair samples.
Because Mostilerhad never discussed the case with White, Mostilerdidn't know the hair samples had been sent to the lab for testing, much less that the results showed no match.
At White's urging, Braunrot said she'd check on it.
By the end of the week, at 10 o'clock on a Friday night, without a word from his lawyer, White was approached in his cell by a jailer and told he was being released.
It was Feb. 18, 2000, 10 months after his arrest. White was free.
The day before, Assistant District Attorney Heath English had gone to a judge and asked that the armed robbery charges be dismissed. Among the reasons the prosecutor cited in court papers: The crime lab results from the hair samples did not match; the only witness prosecutors could still locate to identify White as the robber could no longer positively identify him; and witnesses had discrepancies in describing the robber's height.
White had his freedom, but he would learn that his girlfriend at the time of his arrest was pregnant with another man's baby. Unable to pay his rent while in jail, he had been evicted from his apartment, and all of his belongings were gone. So was his job.
Mostiler, 53, died six weeks later of a massive heart attack.
In April 2001, White filed a civil lawsuit against the arresting officer, Mark Butler, the Griffin Police Department, the GBI and the state of Georgiafor false arrest and imprisonment. A SpaldingCountyjudge dismissed the suit this past December.
Butler still believes he arrested the right man when he charged White with the Chevron armed robbery.
But English, the assistant DA, said he would never have dismissed the charges if he thought White had anything to do with it.
White, now 30, lives in CobbCountyand works as an electrician's apprentice. He struggles to make ends meet and has yet to replace all the belongings he lost while incarcerated.
"If it didn't happen to me, I wouldn't believe it, " White said recently.
"Those 10 months in jail were the longest time of my life. You sit there isolated, not knowing what those people are doing with your life. Apparently they weren't doing much about it at all."
Sunday, 2/9/2003
Section Letter: A16
Appeal says public defender missed facts
Attorney was balancing other cases as he tried to save client from death penalty.
BILL RANKIN / Staff,
With hundreds of clients to keep track of, Johnny Mostiler had only so much time for death penalty defendant Frederick Whatley.
It appeared to be an open-and-shut murder case --- police found the murder weapon used to kill Ed Allen, a Griffinbait shop owner, under Whatley's mattress and a fresh bullet wound in Whatley's leg. So Mostiler, SpaldingCounty's public defender, focused much of his attention on the sentencing phase of the trial.
But Whatley's new lawyers now say Mostiler missed important facts that might have swayed jurors to spare Whatley's life.
Pleading for his client's life to the jury at sentencing, Mostiler said Whatley had been raised in an "ideal family" setting by his great-aunt and great-uncle in Griffin. It was only when Whatley left Griffinto live with his mother in Washingtonthat his problems really began.
"Had Frederick Whatley stayed in Griffin, where he had a good, strong family, where he had been taught right, where he had been raised correctly, I don't think we would have been here today, " Mostiler said.
He asked jurors to sentence his client to life in prison without parole.
It didn't work. After a few hours' deliberation, the jury sentenced Whatley to death.
But the death row inmate's new lawyers say if Mostiler had done the slightest bit of probing into Whatley's life, he could have shown the defendant had deeply rooted psychological problems that explained his criminal behavior.
According to the appeal, which is still pending, Whatley's mother was raped by her uncle, Cleveland Thomas, when she was nine months pregnant with Whatley. In a sworn affidavit, Whatley's mother detailed the sexual assault and said she gave birth to Whatley three weeks later. She then moved to Washingtonand left Whatley with Thomas.
Until he was 16, Whatley slept in the same bed with Thomas, who sexually molested him repeatedly, the motions say. Charges were never brought against Thomas, who is deceased.
Indiana University law professor Norman Lefstein, hired as an expert witness in Whatley's appeal, called the case the product of a "deeply flawed" indigent defense program.
"No matter how talented Mr. Mostiler was, there is simply no way he could have competently represented all of the clients assigned to him, " Lefstein said. "There are simply not enough hours in the day for any attorney to completely provide legal representation in all the cases that Mr. Mostiler was assigned to defend."
Dewey Yarbrough, Mostiler's former investigator, praised the lawyer's dedication and ability as a lawyer to successfully juggle a monstrous caseload. "Regardless of what the caseload was, we were trained to handle it, " Yarbrough said. "It was easier than you'd think."
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