Originally created 08/20/00

Appeal hinges on evidence



The same day Augusta native Alexander Williams is scheduled to die in the electric chair, an Augusta federal judge will be asked to decide whether another Georgia death row inmate may present evidence in his federal appeal.

Exzavious Gibson presented no evidence in his state court appeal. He didn't even have an attorney. On Thursday, U.S. District Chief Judge Dudley H. Bowen Jr. will begin Mr. Gibson's federal appeal process. The first question the judge must answer is whether Mr. Gibson can try to back up his written appeal with evidence.

Like Mr. Williams, Mr. Gibson was 17 years old when he committed murder. He stabbed 46-year-old store owner Douglas Coley on Feb. 2, 1990. Like Mr. Williams, Mr. Gibson was tried and convicted within months of his arrest.

As in Mr. Williams' case, Mr. Gibson's attorney was appointed and worked without the assistance of a second attorney, which is now required by the Georgia Supreme Court.

As in Mr. Williams' case, Mr. Gibson's attorney only called two witnesses to try to persuade the jury to choose life in prison instead of death.

And as in Mr. Williams' case, one of the two witnesses was the person who had abused and neglected Mr. Gibson in his childhood.

But unlike Mr. Williams, Mr. Gibson stood alone in a courtroom in 1996, facing an experienced state attorney whose job it was to convince a state court judge that Mr. Gibson's state habeas corpus petition - a challenge to the legality of the punishment imposed - should be denied.

It was.

"This case raises issues of extraordinary importance to the administration of justice in Georgia," begins Mr. Gibson's federal appeal petition, filed by Thomas H. Dunn, executive director of the Georgia Appellate Practice and Educational Resource Center.

Mr. Gibson is the first death row inmate in the United States "in the modern era of the death penalty to be forced to proceed without counsel at his state habeas evidentiary hearing .ƒ.ƒ. (Mr. Gibson) was forced to fend for himself at an unfair and one-sided proceeding in which the state took every advantage of Mr. Gibson's lack of counsel."

In his federal appeal, Mr. Gibson contends his death sentence is unfair not only because his court-appointed trial attorney failed him, but because Mr. Gibson did not have an attorney to help him when his state appeal was presented to a judge, who, through a rotation assignment of state Superior Court judges, happened to be Augusta Judicial Circuit Judge J. Carlisle Overstreet.

Judge Overstreet's 51-page decision actually was written by a Georgia assistant attorney general, according to court documents. It has withstood a challenge to the Georgia Supreme Court, and the U.S. Supreme Court declined to review it last October.

Mr. Gibson's federal appeal, filed in April, is before Judge Bowen because Dodge County, where Mr. Gibson was convicted and sentenced to die, is in the southern district of Georgia.

The state has responded to Mr. Gibson's petition, asserting that he is not entitled to present evidence in federal court. The standard Judge Bowen should use, according to the state, is to presume Judge Overstreet was correct in Mr. Gibson's case. The state further contends Judge Bowen should not consider anything not presented to Judge Overstreet.

That no attorney represented Mr. Gibson at the hearing is no excuse, and it is his own fault that he didn't find an attorney in the four years he had to do so, the state attorney general reasons.

"To the contrary, this application for federal habeas corpus relief involves a death row inmate who .ƒ.ƒ. contrived to file a habeas corpus petition prepared by the state-funded resource center in a maneuver designed to circumvent new capital habeas corpus timelines," the attorney general's brief reads.

Mr. Gibson's attorney argues Mr. Gibson has legitimate claims to support the proposition that his 1990 trial was unfair, but without an attorney to investigate the facts, research the laws and present his case to Judge Overstreet, Mr. Gibson never stood a chance.

Without an attorney in the state appeal, Mr. Gibson could not explain or prove that his trial attorney failed him before, during and after the trial, according to court documents.

According to Mr. Gibson's current attorney, the lawyer who represented Mr. Gibson at trial and in his first appeal to the Supreme Court was himself working for the attorney general's office. The attorney general's office confirmed that report last week.

At the time of the hearing before Judge Overstreet, when Attorney William Dennis Mullis testified how he had worked on Mr. Gibson's behalf, he was defending the state in other inmates' habeas petitions.

Mr. Mullis did not volunteer the information, and the state's attorney didn't ask, according to a transcript of his testimony and an affidavit by attorney Elizabeth Wells, who was present at Mr. Gibson's hearing.

Judge Overstreet repeatedly asked Ms. Wells to step forward if she wanted to represent Mr. Gibson, and she insisted repeatedly she wasn't capable until given time to investigate and prepare Mr. Gibson's case. The exchanges grew heated and ended with Judge Overstreet having Ms. Wells physically removed from the courtroom.

In her affidavit, Ms. Wells denies the allegation that she intentionally set Mr. Gibson up as a test case to challenge the fact Georgia does not appoint attorneys to represent death row inmates, or any inmate, in a state habeas petition.

The hearing before Judge Overstreet, "was a unmitigated debacle which in large part fueled my decision to quit capital habeas work," Ms. Wells wrote. Two months after the Georgia Supreme Court upheld Judge Overstreet's ruling in Mr. Gibson's case, she left the resource center.

At the same time new federal and state laws went into effect to streamline the death penalty appeal process, the federal government cut all funding to resource centers in the United States.

In Georgia, Ms. Wells wrote, her office went from eight attorneys and four investigators to two attorneys and one investigator to work on approximately 80 death penalty cases.

In December 1995, fearing 13 death row inmates might forever lose any chance for a state habeas appeal unless filed immediately, Ms. Wells and her co-attorney filed broiler-plate petitions for all 13. One was for Mr. Gibson, she wrote. The plan was to get time extensions to either work the cases themselves or find attorneys to volunteer, she wrote.

It worked out for everyone, Ms. Wells wrote, except for Mr. Gibson.

Reach Sandy Hodson at (706) 823-3226 or shodson@augustachronicle.com.