Inmate Has Southporter on His Side
By Alison Walkley
Article Launched: 08/27/2008 09:42:12 AM EDT

Native Southporter and attorney H. James Pickerstein has taken on a pro bono case to assist an inmate in Georgia get off death row via the American Bar Association's Death Penalty Representation Project.
According to an Aug. 15 press release, Pickerstein took up Leon Tollette's case after deeming that the inmate received inadequate representation upon receiving a death sentence in 1999 for a crime committed in 1997. "I believe strongly that individuals should be well represented in trial and I think this man received inadequate representation," Pickerstein said in the release.

Not only did the veteran attorney, who has been practicing for 30 years, respond, but he was one of the first in the state.

"We heard from him almost immediately," Robin M. Maher, Esq., the project's director, said in the release. "He responded to our request for volunteer lawyers, saying 'how can I help?' before any other attorney in the state. In addition, his firm, Pepe & Hazard, is one of the few mid-sized firms in Connecticut to support participation by one of their attorneys. It takes a tremendous amount of commitment, resources and people to work on one of these cases, so the firm's backing is critical to making things work."

The Death Penalty

Representation Project assigned Pickerstein to Tollette, who was part of a failed armed robbery that resulted in the death of an armored car driver in Columbus, Ga., 11 years ago.
"Tollette pleaded guilty on the first day of the trial," the release explained. "Because of this, the Georgia Supreme Court proceeded to the penalty phase, where Tollette was represented by a court-appointed attorney who did not attempt to negotiate a plea bargain nor explore any of the extenuating circumstances that could have saved Mr. Tollette from the death penalty. Furthermore, in his closing statement, he addressed the jury with the following comment: 'I am sure you loathe my client as much as I do, he does not deserve the death penalty.'"

According to Justice Hugh Thompson's opinion in Tollette v. The State of Georgia, "Leon Tollette was indicted for malice murder, armed robbery, and other crimes, stemming from the shooting death of John Hamilton, a Brinks employee who, at the time, was picking up cash from a SouthTrust bank. The State served written notice of intent to seek the death penalty. On the first day of jury selection, Tollette pled guilty to one count each of malice murder, felony murder, armed robbery, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime and to two counts of aggravated assault. At the conclusion of the sentencing trial, the jury fixed the sentence for malice murder at death after finding beyond a reasonable doubt that Tollette committed the murder during the commission of the capital felony of armed robbery and that he committed the murder for the purpose of receiving money or any other thing of monetary value."

Furthermore, according to the opinion, "Tollette argues that he is entitled to a new trial based on various allegedly improper closing arguments made by the prosecutor to which no objections were raised at trial. Tollette argues that he preserved his current objections to the prosecutor's allegedly improper arguments through a pretrial motion. Although we have held that an adverse ruling by a trial court to a motion in limine seeking to limit a specific argument at trial serves to preserve the issue of the argument's propriety for appellate review we find that no such ruling was obtained in this case and, therefore, that the issue has been waived."

Upon learning about how Tollette's counsel conducted the trial, Pickerstein was "shocked" and immediately became interested in helping the inmate. "Having pled guilty with nothing in return is very unusual," he said Monday.

Pickerstein is working in conjunction with the Georgia Resource Center in Atlanta. According to its staff attorney, Kirsten Salchow, "We're a nonprofit whose mission is to take responsibility for all of the inmates on Georgia's death row, providing consultation and representation." Salchow noted that the GRC was founded in the mid-1990s after states' federal resource centers were disbanded.

"We are currently in the process of attacking that death sentence by challenging Leon's level of representation at trial," Pickerstein said. "There were mitigating circumstances that were never brought out at trial that may very well have caused the jury to offer a penalty other than death, but Leon did not have anyone working on his behalf to present those to the court. We believe he has the right to fair representation and we intend to challenge his sentence on those grounds."

Tollette is not the only one to be let down by the system, according to the project. "The number of jurisdictions with death-sentenced prisoners lacking adequate legal representation is growing at an alarming rate," Maher said in the release. "There are currently 3,300 persons on death row in the United States and 99.5% of them are indigent. Most civil attorneys assume that if someone's on death row they have had access to proper representation, but it's not true. Most have not. There is a large and ongoing need for volunteer lawyers to represent death row prisoners to make sure that their trials were fair, their convictions were correct and their death sentences were appropriate. There are hundreds of people on death row without lawyers to do this."

"I knew I had to get my partners on board with this," Pickerstein said in the release. "Appealing a death sentence involves donating hundreds of billable hours, not only from me, but on the part of those who will support me. This has the potential to be a multi-year effort. My partners not only gave me the go-ahead; they gave me their blessing and support."

The firm's support is additionally critical considering that Tollette's case does not relate directly to its daily responsibilities, including "federal white collar matters, corporate investigations, complex civil and criminal tax controversies, and complex civil litigation in both federal and state courts," according to the release.

Pickerstein will not be working solely on Tollette's case over the next 18 months, which is his estimation on how long it will take. "Heavens, yes," he said when asked if he has other cases pending as well. "I expect this to continue to take a good deal of time. I'll have to juggle many things at once."

As it stands, Pickerstein is educating himself on Tollette's case through thousands of pages of trial transcripts, research on mitigating circumstances and interviews with his new client.

"I know it's a big commitment on my part and on the part of the firm and I'm prepared to make it," Pickerstein said. "I believe in the system and I believe everyone is entitled to adequate representation."

The attorney noted that in most death penalty cases, though not usually in Connecticut, "the clients cannot afford their own lawyers so they get underpaid and overworked state defenders." As a result, "many people are sentenced to death who were simply not well represented." This being the case, Pickerstein said the American Bar Association has an "obligation" to provide all clients with the "best representation possible."

"I also believe strongly that all attorneys should do pro bono work that makes a positive impact on the community," he added in the release. "This is a pro bono case that could literally save someone's life. Taking it on is the right thing to do."

Georgia Attorney General Thurbert Baker was unavailable for comment before press time yesterday.

http://www.fairfieldcitizen-news.com/local/ci_10315182