On October 14, 2010, my client, Gayland Bradford, was scheduled for execution. I began representing Gayland about ten years ago. At that time Gayland had been tried once; had his case reversed on appeal; tried a second time; had his case affirmed on appeal; and had his state petition for a writ of habeas corpus denied. I was appointed to represent Gayland in relation to his federal petition for a writ of habeas corpus.
The writ of habeas corpus is the proceeding in which a defendant usually alleges that if it were not for the mistakes of his or her lawyer, the outcome of his trial would have been different. Normally, one cannot bring such an allegation in an ordinary appeal.
When I reviewed Gayland’s case, I determined that although there was no doubt he was guilty of the charged murder, it seemed that his trial lawyers did a poor job of presenting the case for why he should receive a sentence of life imprisonment instead of the death penalty. Although the defense team called some expert witnesses to testify about Gayland’s “borderline intellectual functioning,” the experts conceded on cross-examination that Gayland was probably going to be a “future danger” and that they new of no “mitigating circumstances.” With only a minimal fund for investigation, I determined that Gayland had suffered a childhood filled with abuse and neglect, most of which the jury never heard anything about.
My problem as the Federal habeas lawyer was that my hands were bound by the ineptness of the State habeas lawyer. Federal law mandates that I can only raise claims brought by the State habeas lawyer. The State habeas lawyer, however, did not understand what she was doing when she prepared the State petition. Instead of hiring an investigator and learning all she could about the case, she had simply taken a few of the issues that had been turned down in the direct appeal and resubmit them in the State habeas, even when Texas law makes clear that any issue raised in the direct appeal may not be raised in the habeas proceeding.
In other words, it appeared to me that the State of Texas had appointed Gayland trial lawyers who had failed to adequately investigate and present evidence that might have resulted in Gayland receiving a sentence of life imprisonment, and then had appointed him an incompetent State habeas lawyer preventing Gayland from challenging the adequacy of his trial lawyers. In theory, the lawyers are Gayland’s representatives, so the court opinions read “Gayland Bradford failed to present mitigating evidence,” and Gayland Bradford “failed to raise the ineffective assistance of counsel issue.” In reality, Gayland has “borderline intellectual functioning,” and the State of Texas appointed him a lawyer that failed to present mitigating evidence, and the State of Texas appointed him a lawyer that failed to raise the ineffective assistance of counsel issue.
The question I posed to the Supreme Court is whether the fact that the State of Texas gave him an incompetent habeas lawyer is an excuse, or “cause,” for his failure to raised the ineffective assistance of counsel issue in the State habeas proceeding, and thus permit him to raise the ineffective assistance of counsel issue for the first time in the Federal habeas proceeding.
One week before Gayland’s scheduled execution, the Supreme Court had not yet decided whether it was going to consider Gayland’s case. I requested that the Court “stay,” or stop the execution in order for it to decide whether to hear his case. Usually when this request is made the Court denies the request for the “stay,” and declines to hear the case. Sometimes enough of the justices want to consider the case that the Court grants the stay and at the same time decides to hear the case.
In Gayland’s case, Judge Scalia, acting alone, decided to stay the execution. In addition, the Supreme Court has not decided whether to hear the case or not. This unusual situation would seem to indicate that the Court is deciding another case the outcome of which would bear upon Gayland’s case. However, neither I nor any of my death penalty colleagues, can point to any case currently before the Supreme Court which would seem to bear upon Gayland’s case.
All I can do now is keep my fingers cross and hope this means that the Supreme Court is going to consider this important issue.