If Your Lawyer Wants You Executed

By David Von Drehle

In 1990, Curtis Osborne, a small-time cocaine dealer and addict, killed two people in a dispute over $400. His crime revulsed the town of Griffin, Georgia, one measure of which was the bigoted remark a local inmate reported hearing at the jail: "That little nigger deserves the chair."

As repulsive as the remark was on its own, far more disturbing was the fact that the person alleged to have uttered it was Osborne's own court-appointed lawyer. And somehow, through years of appeals in state and federal courts, no tribunal has squarely confronted this basic but fundamental question: is a person on trial for his life entitled to a lawyer who does not hold him in contempt and believe he should be executed?

Osborne is scheduled to be executed Wednesday. His last-ditch plea to have his sentence commuted to life in prison was denied this morning by the state Board of Pardons and Paroles, despite supportive letters from Georgia luminaries including former President Jimmy Carter and former deputy attorney general Larry Thompson — a Democrat and a Republican, respectively.

His case is a vivid example of the way legal "technicalities" have tipped the scales from favoring death row prisoners to favoring the state. Georgia officials, after all, never had to try to prove that Osborne's lawyer was not a bigot, or even that his feelings about his client shouldn't matter one way or the other. Instead, they were the beneficiaries of court rulings that said the issue was moot for procedural reasons.

From the record of his case, Curtis Osborne was a numbskull junkie who managed to sell his friend's motorcycle for $400, then pocketed the money. When the friend came after the cash, Osborne shot the man and his girlfriend at close range. He later tried to explain the gunshot residue on his hands by saying that he fed his dog doses of gunpowder, but the authorities weren't impressed. Osborne eventually cracked and confessed.

Soon after, the flamboyant Johnny Mostiler, a local lawyer known for his abundant jewelry, handlebar moustache and overwhelming caseload, became his attorney. In those days, Mostiler represented all the indigent inmates in the county for a flat annual fee, hundreds and hundreds of felony cases. His clients often filed into court shackled to one another in rows to enter their guilty pleas, according to a profile in American Prospect magazine. So suffice it to say that he didn't have a lot of time for Osborne.

Preparation for a first-rate capital defense can often take hundreds of hours, including an extensive investigation of the accused's childhood, mental health, drug abuse history and so on. But the law does not promise a first-rate defense. As a panel of judges from the 11th Circuit Court of Appeals said in denying Osborne's request for a new trial, "for a petitioner to show deficient performance" by an attorney, "he must establish that no competent counsel would have taken the action that his counsel did take." And how do you show that? "There are no absolute rules," the judges said vaguely.

So throughout Osborne's legal odyssey state and federal judges combed through his appeals in an effort to decide just how third-rate Mostiler's work actually was. Osborne argued that Mostiler should have uncovered exculpatory evidence. The courts decided that the evidence wasn't exculpatory enough. Osborne's lawyers said Mostiler should have called experts to challenge the prosecution case. Courts decided that experts would not have changed the outcome. Osborne challenged the failure to conduct a robust examination of the role of mental illness and addiction in his unraveling. The courts believed Mostiler's testimony that he never saw any evidence of drug abuse or illness. Instead, Mostiler chose to argue to the jury that Osborne's crimes were not premeditated, an ultimately unsuccessful strategy that appeals courts found to be nonetheless reasonable.

All in all, Osborne's has been a fairly typical capital appeal, in which the defense team heaps allegations on the original lawyer — the high-living Mostiler died of a coronary in 2000 — while the prosecution extols the brilliance of the condemned man's trial attorney. "Mostiler was the toughest trial lawyer in Spalding County," one prosecutor declared of a man far better known for engineering guilty pleas than for winning cases in the courtroom.

Which leaves the alleged racist remarks and the attorney's apparent belief that his own client deserved to die.

Those words didn't actually surface until years after they were allegedly uttered, when another Mostiler client at the time of Osborne's trial reported the slur. He said Mostiler indicated that he wasn't planning to work very hard to save the killer and that he wasn't telling Osborne that the state was offering a plea bargain to life in prison. The issue of the plea deal had already been raised in an earlier appeal before the lawyer's death, and when Mostiler testified that he conveyed the state's offer and Osborne turned it down, the appellate judges chose to believe him over his former client.

It's too late to ask him about the n-word in Osborne's case — but this is not the first time Mostiler has been accused of using the word to describe a client. In another case, a defendant unsuccessfully tried to get a new lawyer because Mostiler was calling him hateful names. When the judge turned to the lawyer, Mostiler didn't deny it. "I honestly can't say whether I said it or not. I don't use those terms out in public," was as far as he would go.

But neither Mostiler nor the State of Georgia was ever pressed on the matter. State courts ruled that Osborne waited too long to raise the issue, and federal courts deferred to that decision. The 11th Circuit panel closed the matter in dry and technical terms: "The state trial court relied upon Georgia procedural rules in denying Osborne relief on this claim. As such, the claim is barred from federal review."

Of course, we are talking about a confessed killer of two people. Some Americans believe that all such aggravated murders should be punished by death. That's not the law, however: in 1976, the Supreme Court ruled that mandatory death sentences are unconstitutional. Instead, each capital case must be individually scrutinized on its own merits.

But is this individual scrutiny possible when the prisoner's attorney slurs him and says he deserves to die? For Curtis Osborne, the ultimate insult is that such a crucial question is barred from review.