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BigLaw Patent Litigator Wins 12-Year Battle for Death Row Client
New York Lawyer
February 22, 2008
By Janet L. Conley
Daily Report
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ATLANTA - When Ann G. Fort launched her latest effort to save the life of convicted murderer and death row inmate Samuel David Crowe, she didn't just rely on the law. The law, after all, had not gone her client's way in a protracted series of motions, appeals to state and federal courts and petitions for certiorari filed over the years. Fort, a Sutherland patent litigator who was handling the case pro bono, engineered what could be called a campaign to show the Georgia State Board of Pardons and Paroles that her client was not just remorseful for brutally murdering a former co-worker in 1988, but that he'd been rehabilitated.Amazingly, according to Fort, it worked. At about 4:30 p.m. May 22, just 2˝ hours before Crowe, 47, was scheduled to die, Fort's cell phone rang. She was sitting down to a meal of fried chicken, coleslaw and rolls with eight to 10 of Crowe's friends and loved ones in a country cabin called New Hope House. The group had gathered in that cabin, located about 10 minutes from the state's death house in Jackson because they planned to witness Crowe's execution. Despite a lack of appetite, Fort said, the group was trying to eat to fortify themselves for the difficult hours ahead.That phone call changed everything.On the other end of the line was La'Quandra L. Smith, attorney for the Board of Pardons and Paroles.“My heart leaped into my throat,” Fort said, adding that she expected to be told that the board had denied her client's clemency request.Smith told her the five-member board had voted to commute Crowe's death sentence to life without parole. Fort said that rather than joy at Smith's words, a whole host of doubts ran through her head. Anyone could have obtained her cell phone number, she recalled thinking. Was the caller merely pretending to be from the Board of Pardons and Paroles? She said that only after she asked Smith if this was a joke and received reassurance that it wasn't, did the good news begin to sink in.But before she could even fully process the news, the land line telephone at New Hope House rang.It was Crowe, who'd already had his last meal and was making what he thought to be his last phone call. “David, it's Ann,” she told him. “I know I've never been able to give you good news before, but today I can because today the board has voted to commute your sentence to life without parole.”She said he was quiet, finally telling her, “Well, we'll certainly take that.”On Wednesday, Crowe was transferred off of death row to another section of the Georgia Diagnostic and Classification Prison in Jackson; he'll later be transferred again. A board mysteryFort, who spent a dozen years and thousands of hours litigating this case, credits a host of other people and entities for the clemency grant, including other Sutherland lawyers; the Southern Center for Human Rights and one of its lawyers, Palmer C. Singleton III; the Georgia Resource Center; Robert B. Remar and Kristina M. Jones; lawyers at the Federal Defender Office; as well as investigators and experts who volunteered their time on the case.But mostly she credits Crowe.
“David Crowe saved his own life by working through his incarceration [to find] a way to live out his true remorse for this crime,” she said. Douglas County District Attorney J. David McDade, who as an assistant district attorney prosecuted Crowe's case in the 1980s and last week appeared before the board to argue against clemency, had a quite different view.“I was sickened to my soul to have to call the victim's family and tell them,” he said. “It's a dark day for justice when … after 20 years of litigation … the victim's family [is] literally holding hands two hours before the scheduled execution and they get the news that a group of people who don't have to explain anything to anybody has denied them justice,” he said.Part of McDade's comment goes directly to what is — for both sides in this case — a bewildering question: Why did the Board of Pardons and Paroles, which has granted only three of 24 clemency requests since 1995, decide to commute Crowe's sentence?The board — Milton E. Nix Jr., Robert E. Keller, L. Gale Buckner, Garland R. Hunt and Garfield Hammonds Jr. — was appointed by governors over the years for seven-year staggered terms.Board spokeswoman Scheree Lipscomb, in an e-mail message, explained that the board does not issue written decisions and never reveals the rationale for its decisions.“Each member casts his or her vote individually to grant or deny clemency,” she wrote. “If a majority of the Parole Board members vote for executive clemency, it is granted. Each member voting for clemency may have done so for different reasons. … This makes it very difficult to say why the 'Board' granted executive clemency in a particular case.”The board retains jurisdiction over a case until an inmate serves his entire sentence, Lipscomb continued, so members' individual votes are not revealed because an inmate and his advocates—who may petition the board many times for clemency—then might try to lobby board members who previously voted against the inmate changing their minds.In short, no one outside the board is likely ever to know why Crowe won clemency. Nonlegal campaignBut Fort's campaign—in particular, perhaps, the nonlegal aspects of it—may account for at least part of the reason her client is among the three inmates whose death sentences the board has commuted over the past 13 years. But before Fort's representation began, before the Gordian knot of motions, appeals and cert petitions unfurled, before, even, Fort's multipronged campaign to convince the board to grant clemency, there was the crime.As Fort tells it, one evening in March 1988, Crowe went to see his wife at Wickes Lumber Co. in Douglasville, where she worked and where he had once been a manager trainee. He got into a discussion with a former co-worker, retail manager Joseph V. Pala, whom Fort said challenged Crowe to come clean to his wife about his drug use and “expressly or impliedly said [Crowe] wasn't man enough for her.“[Crowe] had such deep feelings of paranoia that what began as a minor conflict escalated,” she continued. That escalation ended in murder. The state attorney general's office paints a far more chilling picture of the crime. According to the AG's office, Crowe, then 27, gave this account in two taped statements the day after the murder. Desperate for money to pay bills, Crowe planned a robbery the day before and then went to Wickes in the evening as Pala was closing the store. Crowe shot Pala in the back, and when Pala turned around and called his name, Crowe shot him two more times. Crowe then picked up a can of paint and hit Pala in the head, causing the paint to splatter. Crowe went to a restroom to wash the paint from his hair, returned and talked to Pala for five or six minutes. Out of bullets, he picked up a crowbar and bludgeoned Pala's skull to end his life. Crowe then took $1,160 and left. A year later, Crowe gave a third statement in which he admitted to killing Pala but said he had acted in self defense following a fight that ensued after Pala threatened to tell Crowe's wife about his drug habit. This time Crowe said he never intended to kill Pala and had taken money from the store's safe only make it appear to be a robbery. Crowe pleaded guilty to murder and armed robbery in the Superior Court of Douglas County in May 1989 but did not enter a plea bargain. Then a sentencing trial by jury took place in November 1989, and Crowe was sentenced to life imprisonment for armed robbery, and to death for murder. That's when a round of unsuccessful appeals and motions—including one for a new trial and another to recuse a judge—began. Fort first became involved in the case some seven years after Crowe's sentencing, in 1996, when Stephen B. Bright of the Southern Center for Human Rights asked her to help with a state habeas corpus action on Crowe's behalf.Although she had little death penalty experience — she'd assisted Sutherland partner John H. Fleming in his representation of Andrew Legare, who ultimately escaped a death sentence after a series of appeals when the jury at his fourth sentencing hearing recommended a life sentence instead — she said yes.Working with the Southern Center's Singleton and a network of attorneys and investigators at her firm and others, Fort launched two unsuccessful state habeas petitions, one in 1996 and another in 2002, along with a related set of motions, appeals and a petition for a writ of certiorari to the U.S. Supreme Court, which was denied. In 2002, along with attorneys from the Federal Defender Office, Fort and Singleton filed a federal habeas petition in the U.S. District Court for the Northern District of Georgia, and that, too, was denied, although in 2006, the court did grant in part and deny in part Crowe's motion for a certificate of appealability.The case then went up to the 11th U.S. Circuit Court of Appeals, which denied relief and denied Crowe's petition for a rehearing in 2007. Crowe petitioned the U.S. Supreme Court for certiorari, but that, too, was denied in April 2008.Earlier this month, Fort said she received notice that Crowe had been placed under what's called a “death schedule.” In other words, the state had been given a warrant period—running, in this case, from May 22 to today—during which time it could execute Crowe.Fort said her team contacted the Board of Pardons and Paroles to let it know they planned to seek clemency for Crowe. And that's when Fort began sending the board the fruits of her nonlegal campaign to save Crowe's life.Prior to the clemency hearing, which was scheduled to take place on May 22—the day that had been set for Crowe's execution—Fort's team sent the board 50 letters of support from people pleading for Crowe's life. They also sent an 11-page excerpt from Crowe's prison records showing he'd been a model prisoner and containing quotes such as “exceptional personal-social skills,” “considerate; respectful” and “has a cooperative working relationship with staff,” and a bubble chart outlining his relationships with family, friends, attorneys, spiritual advisers and others in the community outside the prison. On the day of the hearing, Fort said she submitted some 2,000 postcards her team had begun soliciting last fall from Crowe's network of friends, acquaintances, lawyers and churches. The postcards are printed on green cardstock and show postage-stamp-sized images of Crowe as a toddler, boy and teen along with text explaining why he should be spared, followed by a signature line for the sender. Fort's team also submitted a 115-page brief and exhibits on his behalf, plus three affidavits from jurors who'd served at his sentencing trial in 1989 and now supported his petition for clemency.McDade said he did not submit a brief or written argument to the board and was surprised to learn that Fort had done so.The two lawyers appeared before the board on the same day but at separate times. Neither heard the other's argument, and neither had access to the other's documents or witnesses, as per board procedure.Fort said her presentation to the board lasted about 2˝ hours on the morning of May 22 and took place in a small, intimate hearing room in the Sloppy Floyd Building that contained no microphones, only eight rows of benches for witnesses and a counsel table placed close to the board's dais.“I heard someone describe it as a chapel to justice, rather than a cathedral,” Fort said.Her presentation, she said, focused on showing that Crowe was remorseful and had been rehabilitated, with examples including how prison guards relied on him as a peacemaker, how he helped other prisoners and how he had counseled young people in his former community to stop using drugs.She told the board how, as an adopted child, neither Crowe nor his adoptive parents had known he had a family history of substance abuse—something investigators turned up after his trial. She told the board Crowe was emotionally abused by his adoptive parents, and that his childhood peers had told investigators that his mother isolated him from other children, fearing he'd be “contaminated” by their germs. She told them that his mother gave him spoonfuls of “nerve” medicine—the tranquilizer Atarax—to calm him, and that he'd “self-medicated” with cocaine as an adult to deal with the pain of his earlier life.And when the board expressed concern that if they granted clemency they could be perceived as not upholding the system, Fort said she showed them what the system had missed by pointing out that Crowe's trial counsel never introduced mitigating factors such as his drug use and mental health.McDade, the Douglas County district attorney, spent about two hours with the board in the afternoon. He pointed out that Crowe's guilt was never in dispute, that he'd brutally murdered a former co-worker for drug money, that he wasn't under the influence of cocaine when the crime was committed, that at one point he attempted to blame his wife for the crime and had given police differing stories about his motivation.But McDade said the major portion of his argument before the board wasn't his argument at all. It was testimony, via speakerphone, from murder victim Joseph Pala's daughter, Lisa Pala, 34, who was 13 years old when her father died and who now lives in Massachusetts with her family.She spoke movingly, he said, about what it was like to grow up without a father.McDade said he felt some of the board's questions indicated they were “looking to justify why the death penalty was given in this case,” but added that defending that issue “wasn't difficult at all. The jury found three aggravating circumstances.”On one point, McDade and Fort agree.“I never for a millisecond, not even a nanosecond, allowed myself to believe that they would grant relief, because it's a discretionary decision for the Board of Pardons and Paroles,” Fort said. “I'd been through all these levels of court review where the decision is supposed to be compelled, legally compelled. Why on earth would I suspect I could compel the board?”McDade, had much the same view, albeit from a different perspective. “Never in my wildest imagination did I believe that in a case where a man's guilt has never been questioned, where the man actually pled guilty to a horribly vicious, brutal murder—and this was a college-educated defendant, someone who did not suffer from childhood abuse or anything like that—brutalized, battered, robbed and then bludgeoned to death a former co-worker. Never in my understanding of justice would the parole board do this.”
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