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Thursday, June 20, 2013

By Grace Tatter - The Am Law Daily - June 18, 2013
The first time Dykema Gossett lawyer Patrick Hickey worked on a pro bono death penalty case in Georgia, it was the late 1980s, and he was an associate at the firm. The Georgia Supreme Court ultimately denied the Dykema team’s appeal on behalf of convicted killer Robert Newland, who was executed by lethal injection in 2009.

While working on the Newland case, Hickey—by then a Dykema partner and currently the leader of the firm’s labor and employment practice—took on another pro bono assignment representing a death row inmate in Georgia. Thanks to a state court judge’s ruling late last month, that case has, so far at least, yielded a more positive outcome for Hickey and his client.

The client in question, David Aaron Perkins, was convicted of murder and armed robbery and sentenced to death in 1997 in connection with the killing two years earlier of a 38-year-old neighbor, Herbert Ryals III. Prosecutors said Perkins lured Ryals to his home intending to rob him, then stabbed him 11 times when he tried to flee.

Perkins had already made an unsuccessful bid to appeal his conviction and sentence when the American Bar Association—which had helped bring Dykema into the Newland case—contacted the firm about taking on the matter pro bono in 1999.

Once Hickey agreed to take over as Perkins’s primary defense counsel, he and his team—which, at various times, has included Dykema associates Claire Harrison and Christopher Miller—began investigating the case with an eye toward filing a writ of habeas corpus. After uncovering evidence that Perkins had been physically abused as a child by his father and had suffered substantial behavioral changes as the result of injuries to his brain, the Dykema lawyers focused their habeas filing on two key points: that Perkins had been unfit to stand trial in the first place and had received ineffective counsel at the time.

Meanwhile, Jeffrey Ertel and Timothy Saviello of the Federal Defenders Office in Atlanta, both of whom worked with the Dykema attorneys on the matter, turned up a potentially significant item while reviewing files related to the original trial: a note that attorneys involved in the case never saw in which members of the jury told the judge they felt their lives would be in danger if they did not find Perkins guilty.

“If the attorneys responsible for Mr. Perkins’s defense at the trial stage had conducted a reasonable investigation, they would have discovered this evidence,” says the 55-year-old Hickey.

Judge Ralph Van Pelt of Butts County Superior Court was not persuaded and denied the habeas petition in 2008. Unbowed, Hickey and his colleagues appealed Van Pelt’s decision. The case took a turn in the Dykema team’s favor three years later when the Georgia Supreme Court vacated Perkins’s death sentence after finding that his original lawyers were ineffective because they failed to interview family members and document his brain injuries.

In addition to remanding the case to Van Pelt for a new penalty phase, the court also ordered further investigation and a hearing related to the unusual jury note Ertel and Saviello had uncovered and its potential impact on the verdict in the case.

“What the [state] Supreme Court worried about is the jury making a decision to convict someone for a crime based on the fear that, ‘If he gets out, he could come after me,’” Hickey says. “It was a ‘Holy Smokes!’ moment.”

Harrison, who left Dykema last year for a federal clerkship, agrees: “We all sort of knew this was a huge issue, and could potentially get us a new trial as opposed to a new sentencing.”

At that point, Hickey and his colleagues traveled the country to track down the jurors from the original trial. Via interviews and depositions, the defense team was able to determine that the jury had sent the note to the judge presiding over the case before reaching its verdict.

“Once we started talking to the jury, we became pretty confident that there was evidence that the note was written during the guilt/innocence phase,” says Miller, now an in-house attorney at General Motors.

In granting the habeas petition and reversing Perkins’s conviction on May 23, Van Pelt zeroed in on the jury note and emphasized the Supreme Court’s finding that “the trial court’s failure to advise the parties of this inquiry and to respond appropriately amounts to actual prejudice.”

A spokesman for the Georgia attorney general’s office declined to comment on Van Pelt’s ruling, saying only that the office would not appeal May’s decision, and that the case had been sent back to prosecutors in Clayton County—where Perkins was originally convicted and sentenced—to pursue a retrial.

Though Hickey won’t be able to serve as Perkins’s lead lawyer because he is not certified to handle potential capital cases in Georgia, he is nonetheless likely to have an impact on the final result considering what he calls the “tremendous amount” of evidence gathered by the Dykema team in Perkins's favor over the past 14 years.

As an aside, Hickey notes that a 2007 hearing in the Perkins case was held at the courthouse used to shoot courtroom scenes for the movie version of To Kill a Mockingbird. Despite Atticus Finch’s spirited defense in that fictional case, the accused, Tom Robinson, wound up dying in a prison shootout after being convicted at trial. Though hardly analogous, Hickey is pleased his efforts have spared Perkins a violent end.

“You may, in the civil practice, achieve terrific results for your client that have significant financial impact on a business,” says Hickey, reflecting on an effort that has already consumed some 600 hours, required more than 20 trips to Georgia, and involved three trials. “But it’s not often that you save a life.”

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