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When Defense Lawyers Become Prosecutors

Within our current criminal legal system, prosecutors are all-powerful and public defenders, often complicit.

In theory, a public defender's mission includes dedicated advocacy for clients against whom the power of the carceral state is mobilized. However, in practice, defenders sometimes end up working with the forces of power — and against the best interests of their clients. (Photo: Pixabay)

On January 5, 2015, Randall H. McCants Jr. was not alone when Judge James H. Roberts Jr. of the Sixth Judicial Circuit of the State of Alabama opened his courtroom for a plea hearing. “Mr. McCants is present in court with his attorneys, Jim Gentry and Mike Cartee,” he stated. Besides the judge’s reference to McCants’ court-appointed attorneys by their nicknames, nothing appeared out of the ordinary. Roberts cited McCants’ constitutional rights before highlighting his defense attorneys’ central task: “Your attorneys are bound to do everything they can honorably and reasonably do to see that you obtain a fair and impartial trial.” McCants answered the judge’s questions with “yes, sir” and “no, sir.” Even to the charge of capital murder and the question of whether he understood that “the range of punishment is life without parole or death,” McCants responded, “yes, sir.”

According to the nine-page hearing transcript, Roberts knew that McCants had pled not-guilty during his post-arrest arraignment in January 2011. In fact, Roberts acknowledged that McCants’ attorneys had only recently “proposed a plea agreement” for the “lesser offence of murder.” Yet, at no point during the hearing did Roberts wonder about what prompted McCants’ sudden about-face. Did four mysterious years in pretrial detention impact McCants’ decision? Could McCants’ attorneys have coerced him to plead guilty by invoking fear that a greater punishment awaited him at trial? Whether McCants was mentally competent to grasp legal proceedings or understand that he was assuming full responsibility for the accidental death of a Tuscaloosa resident apparently did not cross Roberts’ mind either.

Rather, Judge Roberts proceeded with the plea colloquy by asking prosecutor Jonathan S. Cross to provide “some facts” for the first-degree murder plea. Compliant, Cross stood and delivered some skimpy facts in the most casual and sloppy fashion possible:

[I]f this case went to trial, the State is prepared to prove that on January 16, 2011, this defendant had a prior altercation with one specific individual, that he and several co-defendants got into it with this individual and another individual and got word these two individuals would be at Branscomb Apartments in Tuscaloosa County, and this defendant along with three co-defendants and a few other individuals went there in vehicles, saw the two individuals he had a beef with. A shooting began. Witnesses would identify this defendant as shooting a gun in the direction of an apartment where someone entirely unrelated to this altercation, Mr. James Hardaway, was shot in the back of the head and killed.

Grammatical errors aside, Cross neither identified the witnesses nor confirmed that they had singled out McCants as Hardaway’s sole shooter and killer during a shootout involving seven people. He did not bother to prove whether McCants possessed a firearm and failed to prove that the weapon that killed Hardaway bore any link to McCants. And he saw no need to present evidence rendered factual by ballistic investigation or to explain why the police had found neither shell-casings nor gunpowder in the car that McCants rode in at the time. McCants’ intent — that is, whether McCants had deliberately planned the murder of Hardaway, a man he had never met — was a non-issue. The lack of evidence explains why Cross finalized his brief remarks in the passive voice: Hardaway “was shot in the back of the head and killed.” (Ironically, Cross spoke to the press a day later with the certitude of a demiurge: “Based on the evidence, Mr. McCants was the instigator and primary shooter of this drug-related act of violence.”)

Neither Judge Roberts nor McCants’ defense attorneys questioned Cross’ presentation. Of course, they knew about the low standards of Alabama’s Rules of Criminal Procedure, which, unlike Minnesota’s rules, for example, do not require defendants to present on their own the factual basis of the plea. Confused and scared, yet confident that his guilty plea would keep him off death row and send him to prison for 15 years, McCants, too, endorsed Cross’ presentation. He confirmed signing a plea form and through a few “yes” and “no” answers, all mechanically delivered, satisfied the court that he had entered the plea willingly. In Judge Roberts’ own words, McCants had pled guilty to first-degree murder “voluntarily and intelligently.” His punishment included forfeiting his right to appeal, paying attorney fees and serving a life sentence.

Michael J. Cartee and James E. Gentry — who did not respond when given a chance by Truthout to comment on their defense of McCants — remained silent as the tragic hearing came to a close. They had earlier sealed McCants’ fate and now tacitly conspired with the prosecutorial state to provide the hearing with the semblance of fairness. Though they stood by his side, McCants was alone in court that day. His attorneys had concealed from his supportive family their intention to close the case and have McCants — yet another young Black man preyed upon by the US court system — put away for life.

Manipulation of McCants’ Cognitive Disability

McCants has completed the first 18 months of his life sentence at Bullock Correctional Facility in Union Springs, Ala. In theory, Bullock’s “primary mission is the provision of mental health services.” But for prisoners, Bullock has been one of the most violent prisons in Alabama, if not in the nation. According to a 2014 report by the Southern Poverty Law Center, Bullock’s mental health units were staffed by guards — who conducted “extraordinary levels of abuse” — rather than by full-time psychologists. For McCants and his family, little has changed since then. Still, McCants’ placement inside Bullock indicates that Judge Roberts knew that mental health issues and cognitive disabilities have indeed shaped this young man’s life. This recognition, however, did not spare McCants a life behind bars.

Legal records prove that Judge Roberts, Cartee and Gentry knew all too well that McCants had been diagnosed as “mentally retarded” after surviving a car accident that caused him severe brain damage. They had all received proof that the Social Security Administration deemed McCants a “disabled individual” when he turned seven, and provided him with regular income for approximately 16 years. In 2012, Cartee and Gentry had filed motions requesting an examination into McCants’ mental condition because they doubted the “defendant’s current ability to stand trial and aid the defense.” They even reminded the court that the “[d]efendant, through Counsel, pled not guilty and not guilty by reason of mental disease or defect” back in 2011.

In a 2013 letter to Jay Fondren, head of the Shelby County Corrections Division, Cartee requested “special accommodation” for McCants. He claimed to have “discovered that Mr. McCants has a long history of mental retardation.” And, he continued, “was first diagnosed after repeating the first grade and continued enrollment in special education courses throughout the rest of his formal education and up to high school.” He also suspected that McCants “may suffer from previously undiagnosed mental illness, such as depression or bipolar disorder.”

Just five days before the plea hearing, McCants again reminded Cartee of his mental disability in a long letter. Drafted with assistance from family and a jailhouse attorney — who asked not to be named here to avoid retaliation — the letter urged Cartee to file a motion to dismiss McCants’ indictment. It contested the police account of the shooting and urged Cartee to share with the court the “trajectory of the projectile that caused the death of Mr. Hardaway.” In two distinct instances in the text, McCants affirmed his “mental incompetence,” and directed Cartee to the Indian Rivers Mental Health Center, a local nonprofit, which treated McCants on and off throughout his childhood.

McCants also exhorted Cartee to communicate regularly with his father. The reason: “I do not have the ability to completely understand the conversations that you and I have had about pleas and other aspects of the State’s case against me.” Addressing Cartee’s latest visit to him at the Shelby County Jail, McCants wrote: “That conversation left me truly confused.” McCants continued, “I do not understand whether you informed me that the State has offered me a plea deal of eleven (11) years with credit for the time that I have already served,” or “whether the State’s plea offer was for Life without parole.”

A day earlier, McCants had conveyed similar concerns, though in person, when Cartee and Gentry tried to “force him to sign a plea deal,” according to an affidavit from McCants’ grandmother, Sheila Russell. McCants notified Cartee of his illiteracy and asked that he communicate with his father because “he could not read and understand what Cartee was trying to force him to sign,” said Russell.

McCants’ plea went unheeded. On the morning of January 5, 2015, exactly one week before his case was set for trial, the sheriff transported McCants from jail to the courthouse, swiftly and without prior notice. From sworn affidavits signed by his parents and grandmother, one learns that “attorney Cartee told McCants to sign a guilty plea.” Confused and fearful, McCants asked for his family’s presence but Cartee dismissed his request, instead telling McCants that he was “a grown man.” Only hours after the hearing did McCants’ family learn through social media that he had pled guilty to murder and received a life sentence.

Beyond Ineffective Assistance of Counsel

The post-1980s explosion in incarceration across the US has left journalists, academics and activists searching for the root causes of this unprecedented phenomenon. Undoubtedly the state, in the hands of both neoliberals and neoconservatives, has moved away from guaranteeing basic rights and services, becoming instead a robust surveillance machine domestically and abroad. This transformation coincided with what sociologist Loïc Wacquant described as “the racial and class backlash against the democratic advances won by the social movements” of the 1960s. In other words, it was the protection of deep-seated “caste cleavages,” which various social movements aspired to erode, rather than the elimination of crime, that contributed to the return of the prison “as the universal and simplex solution to all manners of social problems.”

The post-Keynesian labor market, structured by anti-Black racism, further expanded what capitalists recognize as “human surplus.” It follows that non-white working-class individuals unabsorbed or spat out by the labor market became again the easy targets of a militarized police force and a partially privatized carceral system.

Politicians, meanwhile — whether at the state or federal levels, whether Republican or Democrat — have mobilized fear of the racialized and menacing “other” to augment their electability and to justify criminal laws that have expanded prosecutorial power and contributed to a decline in jury trials nationwide. Thus, the inevitable has unfolded: within the capacious carceral state, prosecutors have become its most powerful and unaccountable agents, in large part because their actions are discretionary and unreviewable. They carry out their central tasks, namely plea-bargaining and charging, behind closed doors and away from public scrutiny.

Public defenders — whose mission in theory includes dedicated advocacy for clients against whom the power of the carceral state is mobilized — have proved to be all too often complicit, if not active, participants in the prosecution of impoverished criminal defendants. This is particularly true in states like Alabama where, in the absence of statewide public defense systems, local courts appoint private attorneys to represent the most disenfranchised. A study by the Alabama Appleseed Center for Law and Justice found that in four Alabama circuits, which employ contract defender systems, “the attorney of record did not file any motions in 72% of the capital and non-capital felony cases.” Additionally, in cases where motions were in fact filed, “71% of them were ‘canned,’ non-case specific motions” and “no motions were filed for experts or funds for investigatory assistance in 99.4% of the cases.”

McCants’ attorneys Cartee and Gentry failed to depart from this common pattern of woefully incompetent practice. Their “canned” motions should be required reading for first-year law students, including those enrolled in courses on professional (ir)responsibility. Particularly noteworthy are the boilerplate motions that the duo filed on McCants’ behalf with dates from a decade prior, the name of a former client and nearly no argumentation whatsoever. Somehow, Gentry and Cartee believed that a two-paragraph motion citing the US Supreme Court’s decision in Ring v. Arizona (2002), without explaining its applicability, could persuade the court to dismiss McCants’ case. In that 7-2 decision, the Supreme Court reaffirmed the Sixth Amendment’s guarantee to a jury trial for criminal defendants by prohibiting judges from finding the aggravating factors that made defendants eligible for the death penalty.

On July 17, 2012, Cartee and Gentry filed 25 motions at once. From Cartee’s billing records, one learns that he worked on McCants’ case for just 42 minutes that day. They also reveal that Cartee spent a total of 67.8 hours working on McCants’ case from 2011 to 2015. According to one study, competent lead attorneys in capital cases spend as much as 1,075 hours in pretrial activities alone. Not Cartee and Gentry, who urged McCants to “continue your prayers” and assured him in a letter from Cartee’s firm that the four years spent in jail “has been time for us to investigate and come up with a great legal defense.”

Oddly, the circuit judge never questioned Cartee’s and Gentry’s paltry working hours and failure to adequately investigate on McCants’ behalf. He apparently did not wonder about who a mysterious “Mr. Horton” was, and why his name mistakenly appeared as the defendant in a motion filed for McCants in what looks like a cutting-and-pasting error. Neither did the judge question Cartee’s commitment to defending the poor, even though Cartee was a former prosecutor and in 1989, filed a lawsuit to challenge the constitutionality of special court fees that financed “both the Public Defender’s office and the new Children’s Detention Center” of Tuscaloosa.

The appeals phase of McCants’ saga was no less absurd. With help from family and the anonymous jailhouse lawyer, McCants filed a motion to withdraw his guilty plea in February 2015. The document displayed shrewdness and courage. It exposed Cartee’s and Gentry’s demand for money from McCants’ family for unperformed medical examinations and their failure to inform them that state funds were available for the procedure. It detailed how Cartee and Gentry had coerced McCants into entering the guilty plea and urged the judge to “correct a manifest miscarriage of justice.” Three weeks lapsed before Judge Roberts denied the motion without explanation.

In April 2015, McCants filed a pro se notice of appeal. Judge Mary B. Windom of the Alabama Court of Criminal Appeals decided that the appeal “is due to be dismissed” because it was filed a few days late. However, she appointed Kyle J. Henderson, a former prosecutor from Baldwin County, “to show cause why this appeal should not be dismissed.” She gave Henderson 14 days to complete the task, yet he only got around to responding to her order five months later and committed an even more atrocious act: he argued for the dismissal of McCants’ motion and urged the court to disregard its merits. In a moment of opportunistic disavowal, Henderson referred to himself in the third-person and asserted that, “Counsel for Mr. McCants has thoroughly reviewed the plea transcript and court record and does not find sufficient basis […] to grant Mr. McCants’ appeal.” He then concluded: “Mr. McCants’ appeal should be denied.” Five days later, McCants’ conviction and life sentence became final. Henderson did not return a request for comments.

For McCants and his tireless family, the question of whether he will ever be defended and receive a fair trial remains an open one. In some ways, the possibility seems distant. They know that the task awaiting McCants’ recent attorney, Gary L. Blume, whom the court appointed to attack the constitutionality of McCants’ conviction and sentence in state post-conviction proceedings, includes more than a display of professionalism and ethics. Empathy for those most disenfranchised and the courage to denounce the misdeeds of attorneys like Cartee (the nephew of Republican Senator Richard Shelby), Gentry (a soon-to-be circuit court judge) and Henderson, independently of their social status and political power, will shape the outcome of McCants’ pursuit of post-conviction relief. McCants’ family hopes that Blume will expose Cartee’s and Gentry’s unwillingness to put forward the weakness of the state’s case against him. As a simple reading of the preliminary hearing transcript indicates, there was no physical evidence linking McCants to the weapon or to the bullet that caused Hardaway’s death; the state failed to determine the ownership of the guns used in the shooting; the witness who claimed to have seen McCants in the act of shooting did not have a clear view of him; and the police investigator conceded under oath that Hardaway could have been killed by a stray bullet from any one of at least five shooters.

Of the five defendants arraigned in 2011, only McCants, the most vulnerable one, received a life sentence. His vulnerability — rooted in a medical condition and exacerbated by a socially stratified and punitive society, both not of his choosing — was exploited by legal professionals, all acting as prosecutors, who showed little care for another young Black man’s life.

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