A Lawyer Without Precedent, by Harper’s Staff

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June 1997 Issue [Readings]

A Lawyer Without Precedent

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From the transcript of a habeas corpus hearing held in January 1996 at the Butts County Superior Court in Jackson, Georgia, to determine whether Wallace Fugate was given “effective assistance of counsel” by Leo Browne during the 1992 murder trial in which Fugate was sentenced to death. At the hearing, Browne, who had been appointed by a county court to represent Fugate, was questioned by Stephen B. Bright, a lawyer for the Southern Center for Human Rights. The judge ruled against Fugate; the decision has been appealed to the Georgia Supreme Court.

stephen b. bright: Do you know what the case of Gregg v. Georgia [the 1976 Supreme Court ruling that allowed states to impose the death penalty] is?

leo browne: No, I don’t—I don’t know what you’re getting at there, no.

bright: You—you’re not familiar with that case?

bright: No.

bright: All right. So you don’t—you don’t follow the Supreme Court cases?

browne: Not too closely.

bright: All right. You don’t know what—

browne: The past few years I haven’t.

bright: All right. I’m just asking you if when we say “post-Gregg case,” do you know what Gregg means?

browne: You mean about the—the death penalty?

bright: Well, I’m just asking you if that time frame means anything to you?

browne: Not exactly, no.

bright: Now, are you familiar with the case of Furman v. Georgia?

browne: No.

bright: Have you ever read that case?

browne: I don’t think I have.

bright: You familiar at all with the case of Godfrey v. Georgia?

browne: No.

bright: Ever read any of the opinions with regard to death-penalty cases out of the Federal District Courts in Georgia?

browne: I might have, but I don’t—I don’t recall specifically.

bright: And between the time of the Harrell case [a capital case Browne worked on in 1979] and Mr. Fugate’s case, you had not been involved in any death-penalty case?

browne: That’s correct.

bright: No death-penalty case?

browne: No.

bright: Been involved in any murder cases?

browne: No. Not in that length of time.

bright: Have you ever had a case where you had an expert witness?

browne: You mean for the defendant?

bright: Yes, sir.

browne: I really don’t recall. I had one case I may have had a doctor come in and testify. But I—I can’t recall specifically.

bright: Do you remember what year that was?

browne: No, good God.

bright: What case?

browne: Lost back there somewhere.

bright: What subject?

browne: In the Sixties or Seventies or somewhere in there.

bright: Ever had an investigator?

browne: Do what?

bright: Investigator? Ever have an investigator?

browne: Oh, investigator?

bright: Yeah.

browne: No. No.

bright: Do you feel like an investigator would have been of benefit to you in the defense in this case?

browne: I think we discussed that at one time and decided that we really wouldn’t need an investigator.

bright: Do you have any idea what you would use an investigator for if you had one?

browne: I’m sure I—I’m sure I have been exposed to some of that, but I don’t remember specifically.

bright: Could you just tell me, Mr. Browne, can you tell me what criminal-law decisions from any court you’re familiar with? Georgia Supreme Court—

browne: Well, off the top of my head I can’t tell you any cases I’m familiar with. I’ve—from time to time I’ve had to refer to cases, go research cases. But I can’t sit here and tell you what cases I’m actually familiar with. Can’t do it.

bright: Not even one?

browne: None. Not even one.

bright: All right. Thank you. Nothing further, Your Honor.

judge john r. harvey: All right. Thank you, Mr. Browne.

browne: I can go find you some, if you need ’em.

judge harvey: Okay. Mr. Browne, just one last question. Do you recall how much you were, in fact, paid by the county to represent Mr. Fugate?

browne: I don’t recall that either.


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