Appeals Court Sets Aside Rare Federal Death Sentence

Appeals Court Sets Aside Rare Federal Death Sentence

Jonathan Ringel
Fulton County Daily Report
November 3, 1999

A sharply divided appellate panel has set aside what had been the first federal death penalty imposed in 30 years.

But the 11th U.S. Circuit Court of Appeals panel resoundingly upheld the conviction itself, despite a recantation of a key government witness.

In the case of David Ronald Chandler, the court barely acknowledged his claims of innocence. But the court said his trial counsel was so ineffective at sentencing that he should get another chance to avoid death.

The majority decision, written by Judge Stanley F. Birch and joined by Judge Rosemary Barkett, says Chandler's trial lawyer failed to find and prepare witnesses to offer mitigating factors for why the jury should not sentence Chandler to die.

That opinion drew a pointed dissent from Judge J.L. Edmondson, who called it "out of step with the preexisting law of the circuit." Chandler v. United States, No. 97-6365 (11th Cir., Oct. 29, 1999).

John R. Martin of Atlanta, Chandler's current lawyer, says he's pleased with the new sentencing but disappointed the court did not overturn the conviction.

The recanting witness, Martin says, is Charles Ray Jarrell Sr., who originally claimed he'd shot Marlin (Marty) Shuler because Chandler offered to pay him to do it. Federal prosecutors in Alabama had said Chandler wanted Shuler dead because he had given police incriminating information about Chandler's marijuana business.

A jury found Chandler had ordered Shuler's death to further a drug conspiracy, an offense punishable by death under the Anti-Drug Abuse Act of 1988. The verdict made Chandler the first person sentenced to death by a federal jury in 30 years.

But Martin says Jarrell, who pleaded guilty to a lesser charge in return for testifying against Chandler, has changed his story in a sworn affidavit and in interviews with the news media.

"He said he lied," Martin says of Jarrell, who was quoted in The Atlanta Journal-Constitution saying he'd killed Shuler because Shuler had been abusing Jarrell's sister, not because Chandler paid him to do it.

After an evidentiary hearing, U.S. District Senior Judge James H. Hancock, who presided over the 1991 Northern District of Alabama trial, ruled: "[T]here are numerous substantial grounds on which the Court believes that Jarrell's current testimony is suspect and unworthy of belief." Chandler v. United States, 957 F. Supp. 1505 (1997).

The Justice Department lawyer now handling the matter, Robert J. Erickson, would not discuss the case. A department spokesman says the Solicitor General will decide whether to ask the full 11th Circuit to repeal the panel ruling that orders a new sentencing trial.

Birmingham lawyer L. Drew Redden represented Chandler at trial and sentencing. Redden did not return a telephone call.

At the sentencing part of the trial, Redden did call Chandler's wife and mother to testify. But, according to six pages of transcripts Birch included in footnotes, Redden focused on seemingly irrelevant questions. He asked how Chandler built his family's homes, inquiring into wood types, acres of land and the location of the houses.

"In short," Birch wrote, "the kinds of questions Redden asked and the brevity of the examination left the jury with the impression that the two women who theoretically knew Chandler perhaps better or more intimately than anyone else-his wife and his mother-had little or nothing to say about the man other than the fact that he liked to participate in building houses."

Birch also criticized Redden for not calling any of about 40 witnesses who claimed at a later hearing they would have testified that Chandler gave shoes, food and and money to poor people around his hometown of Piedmont, Ala.

"We conclude that Chandler was prejudiced by his lawyer's deficient performance" Birch wrote, a violation of the Sixth Amendment right to counsel.

Edmondson wrote Birch and Barkett's decision "seems not just mistaken, but also raises worries about full adherence to binding precedent."

Edmondson says the Chandler case is essentially the same as another case in which the 11th Circuit ruled differently. There, Edmondson wrote for a unanimous panel that a lawyer accused of failing to interview mitigation witnesses for sentencing "reasonably chose to focus his time, energy and efforts on acquittal and, if necessary, residual doubt at sentencing." Tarver v. Hopper, 169 F. 3d 710 (11th Cir., 1999).

Such was the case in Chandler's sentencing trial, Edmondson wrote, suggesting Redden chose to convince jurors who might harbor lingering doubt about Chandler's guilt to spare Chandler's life instead of exposing Chandler's character to attack with a stream of character witnesses.

Considering the tenuous case prosecutors had against Chandler, Edmondson wrote, "I am convinced the argument had force and was a valid line to take. Of course, this argument was ultimately unsuccessful; but so are roughly half of all arguments made in American courtrooms.

"Lack of ultimate success has almost nothing to do with whether the lawyer met his professional obligations," Edmondson concluded.

Ken D. Driggs, who has experience in death row appeals and in death penalty trials, says lawyers can choose to use the tactic of lingering doubt with sentencing juries, but "it has to be an informed decision." It's critical to interview potential mitigation witnesses before the trial, he says.

Defense lawyers should assume their client will be found guilty and be prepared to offer mitigation evidence, he adds.

"The first rule is, 'Keep your client alive,'" says Driggs.

Representing Chandler, Martin says he wouldn't be surprised if Edmondson asked his colleagues to review the decision. A majority of the 12-member court must agree to hold an en banc review.

Stephen B. Bright, who's not involved in this case but represents death row inmates for the Southern Center for Human Rights, calls Edmondson's dissent "about the most blatant appeal of a judge for en banc review I've ever seen."