Walking that fine line

On the day after Christmas in 2009, Albert James Turner went to the home of his in-laws in Fort Bend County and killed his wife and mother-in-law. Two of the couple's four children witnessed the killings and called the police. After a two-and-a-half month long manhunt, Mr. Turner was found in North Carolina. He was brought back to Texas to stand trial for capital murder.

Prior to trial, Mr. Turner's original attorney asked the court to conduct a competency evaluation. Over the course of the next several months, Mr. Turner was examined by three evaluators, a psychologist, a psychiatrist and a neuro-psychologist. All three found that Mr. Turner was competent to stand trial.

After parting ways with his first attorney, two new attorneys were appointed to represent Mr. Turner. The new attorneys were concerned that Mr. Turner's mental condition had deteriorated since the first evaluation and requested a formal competency hearing. The court agreed to another evaluation and appointed a clinical psychologist to perform the examination. The determination was the same, Mr.
Turner was competent to stand trial.

In 2011, Mr. Turner went to trial. His attorneys told him that the state was seeking the death penalty and that the best way to avoid it was to admit to the killings but to argue that he killed his wife in a fit of passion and that he didn't intend to kill his mother-in-law. The hope was to convince the jury that he was not guilty of capital murder because the second killing was unintentional.

In his opening statement, one of Mr. Turner's attorneys told the jury that Mr. Turner had killed his wife in a fit of rage but that he had never intended to kill his mother-in-law. He also told the jury that Mr. Turner was unable to help himself  by admitting his guilt. Mr.Turner was very much opposed to this strategy. Mr. Turner insisted on taking the stand and told the jury that the murders had been committed by, or on behalf of, the mayor of Kendleton (TX), who was having an affair with his wife. Mr. Turner claimed that his two children were mistaken in telling the police that he had killed the two women.

Defense counsel once again told the jury during closing argument that Mr. Turner had killed the women but that he hadn't committed capital murder because the second killing was unintentional. Unfortunately the trial court had denied the attorney's request for the lesser included offenses of murder, felony murder and manslaughter to be included in the charge.

Faced with a choice between guilty and innocent, the jury convicted Mr. Turner and sentenced him to death.

On appeal the Court of Criminal Appeals ordered the trial court to conduct a retrospective competency hearing - despite defense counsels' objection that Mr. Tuner wasn't competent enough for the hearing. Mr. Turner did not attend the hearing by his choice though the hearing was beamed in on a tv monitor and he had the means to communicate privately with his attorneys. The hearing was held and (surprise, surprise), a jury found that Mr. Turner was competent during the time of his murder trial.

The Court of Criminal Appeals then considered Mr. Turner's second direct appeal. The focus was on whether the US Supreme Court's ruling in McCoy v. Louisiana, 138 S.Ct. 1500 (2018) was applicable in Mr. Turner's case. In both cases defense attorneys advised their clients that conceding guilt at trial was the only way to avoid the death penalty if convicted. In both cases the attorneys conceded their clients' guilt to the jury. In both cases the defendants took the stand, denied killing anyone and concocting a conspiracy to explain how they were charged. And, in both cases the defendants were convicted of capital murder and sentenced to death.

The Court of Criminal Appeals held that while trial strategy is the responsibility of counsel, a defendant has the absolute right to insist on his innocence (as well as his right to testify on his behalf). The Court said that maintaining one's innocence is the object of representation and not just a trial tactic.

The case was remanded for a new trial.

But, as with McCoy, this case does present the question of what should an attorney do when his or her client wants to shoot themselves in the foot? Mr. Turner's attorneys were two of the most experienced and qualified attorneys you could hope to represent you in a capital murder case. They knew what the odds were that Mr. Turner would be convicted and condemned. They told him this case was about saving his life, not convincing a jury he was innocent. Of course in McCoy the defense attorney screwed up and, in essence, laid a red carpet for the jury to sentence his client to death. In this case the attorneys set out on a strategy that was foiled by the trial court's decision not to put lesser included offenses in the jury charge.

It is sometimes a very fine ledge we walk across.