Opinion
No. M1987-00072-SC-DPE-DD.
October 3, 2006.
Donald E. Dawson, Post-Conviction Defender, Nashville, Tennessee.
MOTION TO APPOINT CLEMENCY COUNSEL AND RESET EXECUTION DATE
On October 2, 2006, former-Attorney General Paul Summers joined the law firm of Waller Lansden Dortch Davis LLP (Waller Firm) as a Partner. As a result of this event, Mr. Johnson's pro bono Waller clemency counsel no longer represent him. This Court should (1) appoint the Office of the Post-Conviction Defender (PCDO) to represent Mr. Johnson in clemency proceedings; and (2) reset Mr. Johnson's execution date to afford the PCDO the time necessary to represent Mr. Johnson properly. In support of this motion, Donnie Johnson states:
1. Donnie Johnson faces an October 25, 2006 execution, which was sought at the request of former Tennessee Attorney General Paul Summers. On October 2, 2006, however, General Summers joined the Waller Firm as a Partner. The Waller Firm has been representing Donnie Johnson, most recently as clemency counsel on a pro bono basis.
2. Given these circumstances and given that the clemency process would involve issues concerning General Summers' efforts to have Donnie Johnson executed, the Waller Firm must withdraw as Johnson's clemency counsel, given a conflict of interest and the clear appearance of impropriety. See Affidavit of Mark Pickrell (Exhibit 1).
Donnie Johnson has also indicated that, given these circumstances, he does not wish to be represented by the Waller Firm.
3. Because Donnie Johnson is now without clemency counsel, this Court should appoint the PCDO to represent him in clemency, while providing the PCDO sufficient time to prepare for those proceedings.
4. In fact, just recently this Court appointed the PCDO to represent a condemned inmate in pre-execution proceedings, such as clemency, despite the PCDO's obligations in other cases. In the case of Edward Jerome Harbison, on July 17, 2006, this Court set an October 11, 2006, execution date and appointed the PCDO to represent him. See 7/17/06 Order in State v. Harbison, Tn. Set. No. M1986-00093-SC-OT-DD (Exhibit 2). Recognizing the PCDO's case load and the PCDO's need for adequate time to represent Mr. Harbison, this Court later reset Mr. Harbison's execution date to February 22, 2007 "to afford sufficient time for adequate representation" by the PCDO. 8/15/06 Order in State v. Harbison, Tn. Sct. No. M1986-00093-SC-OT-DD (Exhibit 3).
5. Given the Harbison case, and given the circumstances Donnie Johnson now faces, undersigned counsel has determined that, notwithstanding other obligations of the PCDO, it is in the interest of justice for this Court to appoint the PCDO. See Tenn. Code Ann. § 40-30-206(e) (authorizing appointment of the PCDO to represent an indigent death-sentenced inmate in clemency proceedings when "the post-conviction defender determines that it is in the interest of justice" to do so).
6. This Court should therefore act as it did in Mr. Harbison's case. This Court should appoint the PCDO to represent Mr. Johnson and, as in the Harbison case, reset his execution date to afford the PCDO sufficient time to do so.
7. This is the appropriate course of action, because the clemency process is critical to the fair resolution of death penalty cases (See, e.g., Workman v. State, 22 S.W.3d 807, 809 (Tenn. 2000) (Drowota, J., concurring)), and Mr. Johnson, like Mr. Harbison, lacks counsel as his execution approaches.
CONCLUSION
This Court should appoint the PCDO to represent Mr. Johnson and reset his execution date to allow the PCDO sufficient time to provide adequate representation.
EXHIBIT 1 AFFIDAVIT
STATE OF TENNESSEE ) ) COUNTY OF DAVIDSON )
Affiant C. Mark Pickrell swears as follows:
1. I am an adult resident citizen of Nashville, Davidson County, Tennessee.
2. I am a member in good standing of the Tennessee Supreme Court Bar.
3. I am currently an Adjunct Law Professor of Professional Responsibility at Vanderbilt University Law School.
4. I am currently a Partner at Waller Lansden Dortch Davis, LLP.
5. Since April 2001, and prior to and since joining Waller, Lansden I have represented Donnie Johnson, who is under sentence of death by the State of Tennessee. Mr. Johnson is scheduled to be executed on October 25, 2006.
6. I have been lead counsel for Mr. Johnson in various federal court proceedings, and Waller, Landsen has also served, on a pro bono basis, as Mr. Johnson's counsel in his ongoing clemency efforts. I am serving as clemency counsel, leading efforts to develop Donnie Johnson's case for clemency to be presented to the Governor and/or the Tennessee Board of Probation and Parole.
7. On October 2, 2006, former Attorney General Paul Summers joined Waller, Lansden as a Partner of the firm.
8. As Attorney General, General Summers has overseen the State of Tennessee's efforts to secure Donnie Johnson's execution. It was at General Summers' request that the Tennessee Supreme Court set the October 25, 2006 execution date.
9. One issue planned for presentation at the clemency proceeding is the filing of a false affidavit in Donnie Johnson's federal habeas corpus proceeding by personnel associated with the Office of the Attorney General while General Summers directed that Office.
10. In light of the issues expected to be raised in the clemency process, continued criticism of the Office of the Attorney General while led by General Summers may be necessary.
11. I believe that my representation of Donnie Johnson "may be materially limited by" my responsibilities to Waller Lansden as prohibited by RPC 1.7(b).
12. RPC 1.7(b) disqualifies me from continued representation of Donnie Johnson without Donnie Johnson's consent.
13. On October 2, 2006, I consulted with Donnie Johnson regarding this apparent conflict. After consultation, he was unable to consent.
14. Given these circumstances, Waller, Lansden and I must withdraw from representing Donnie Johnson pursuant to RPC 1.7(b), and Waller, Lansden must withdraw pursuant to RPC 1.9(a) 1.10(a).
15. Furthermore, I am concerned about the appearance of impropriety. If Donnie Johnson is executed while his attorneys are in partnership with the recent Attorney General of Tennessee (the individual who directed the State's effort to enforce Johnson's death sentence and obtained the October 25, 2006, execution date), there is likely to be a lack of confidence in the final outcome and the role of Johnson's counsel during the final stages of his defense.
_________________________ C. Mark Pickrell
Sworn and subscribed before me this 2nd day of October, 2006.
_________________________ Notary Public
My commission expires: 5/23/09EXHIBIT 2 IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE V. EDWARD JEROME HARBISON No. M1986-00093-SC-OT-DD — Filed: July 17, 2006 ORDER
On June 13, 2006, the State of Tennessee filed a Motion to Set Execution Date in the case of Edward Jerome Harbison. The State alleged that Harbison had completed the standard three-tier appeals process and that this Court should therefore set an execution date. See Tenn.S.Ct. Rule 12.4(A). On June 22, 2006, a Response to Motion to Set Execution Date was filed on behalf of Harbison. The Response contended that an execution date should not be set because Harbison's federal habeas corpus proceedings were not complete. The Response also requested that this Court exercise its authority under Tenn. Code Ann. § 40-27-106 to issue a certificate of commutation to the governor. In support of the request for a certificate of commutation, the Response alleged that police files contained exculpatory information indicating that someone else committed the murder for which Harbison had been convicted. In addition, it was contended that a certificate of commutation should issue because the jury did not hear evidence of Harbison's horrendous childhood and his psychological and mental impairments and because the murder was not sufficiently aggravated to warrant the sentence of death, which allegedly had resulted from a "series of unacceptable errors" by the police, counsel and the courts. The Response, which was filed by the Office of the Assistant Federal Community Defender in Knoxville, Tennessee, also asked that this Court appoint counsel to represent Harbison in this case.
Upon due consideration of the State's Motion to Set Execution Date and the Response to the Motion, the State's Motion is GRANTED. It is hereby ORDERED, ADJUDGED and DECREED by this Court that the Warden of the Riverbend Maximum Security Institution, or his designee, shall execute the sentence of death as provided by law on the eleventh day of October, 2006, unless otherwise ordered by this Court or other appropriate authority.
It is further ORDERED that the request for appointment of counsel to represent Edward Jerome Harbison is GRANTED. The Court hereby appoints the Office of the Post-Conviction Defender, 530 Church Street, Suite 600, Nashville, Tennessee 37243, to represent Harbison in the instant case No. M1986-00093-SC-OT-DD.
Counsel for Edward Jerome Harbison shall provide a copy of any order staying execution of this order to the Office of the Clerk of the Appellate Court in Nashville. The Clerk shall expeditiously furnish a copy of any order of stay to the Warden of the Riverbend Maximum Security Institution.
PER CURIAM
EXHIBIT 3 IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE V. EDWARD JEROME HARBISON No. M1986-00093-SC-OT-DD — Filed: August 15, 2006 ORDEROn July 17, 2006, this Court set an execution date for Edward Jerome Harbison of October 11, 2006, and appointed the Office of the Post-Conviction Defender (PCD) to represent Harbison in this matter. On August 8, 2006, the PCD filed a Motion to Withdraw as Counsel, in which it alleges that the PCD has never represented Harbison before at any stage of his litigation, that it would require six months to prepare to represent Harbison adequately, and that the PCD "simply does not have enough staff or time to represent Mr. Harbison in the relevant time frame."
Upon due consideration, the Motion is DENIED; however, to afford sufficient time for adequate representation, the execution date for Edward Jerome Harbison is re-set to the twenty-second day of February, 2007.
PER CURIAM