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Federal Death Penalty Case in Georgia Unravels, Triggering Investigation of Prosecutors

A rare federal death penalty case in Georgia failed, costing taxpayers hundreds of thousands of dollars, and derailed the careers of two federal prosecutors, both of whom are no longer employed by the U.S. Attorney's Office in Atlanta and are under investigation by the Justice Department's Office of Professional Responsibility. The case against Brian Richardson, already serving a life sentence for armed robberies, had been based on his stabbing of his cellmate in the U.S. Penitentiary in Atlanta, Georgia. Instead of receiving the death penalty, though he received a sentence of life without parole.

According to court records, a total of eight federal prosecutors worked on the case, flying in victims of past crimes committed by Richardson years ago to testify at trial, hiring many expert witnesses at fees averaging $1,900 an hour, and tying up Justice Department resources for four years. In addition, 20 private attorneys were appointed to represent prisoners subpoenaed by prosecutors to testify against Richardson, and who were paid $125 per hour.

It is unquestioned that in July of 2007, Richardson, who was 49 at the time, still had almost 50 years remaining on a 65-year prison sentence. According to prosecutors, he had an extensive record of incidents while incarcerated, including splashing bleach in a guard's face and stabbing other prisoners. A convicted child molester, Stephen O'Bara, became his cellmate, and then his victim.

According to Richardson's confession, he attacked O'Bara because he was a pedophile, traditionally the one crime that even hardened prisoners often refuse to abide. Richardson stabbed O'Bara nine times with a "spiv" fashioned from a fire extinguisher pin, and then choked him by stepping on his throat and strangling him with a sock. With Richardson's record, his confession, and the evidence arrayed against him, it should have been a relatively easy case, but then things began to go wrong.

Assistant U.S. Attorneys Todd Alley and Matt Jackson commenced the death penalty case by filing a notice required by federal law which cited Richardson's dangerousness, record of violence, and apparent lack of remorse. Before the case went to trial, however, both had been removed. Jackson was removed after Richardson's court appointed counsel discovered recordings of conversations with prisoner Jack Morris, wnere Jackson apparently encouraged Morris to assault one of Richardson's lawyers in court: "Or you can just jump over the podium and go over and stab her. We'll go light on you. If you do kill her, a day of community service."

Presiding judge Cooper also removed Alley for an apparent conflict of interest arising out of a prisoner alleging Richardson made threats to kill Alley, disqualifying him. Alley, despite Judge Cooper's order to the contrary, continued to stay involved in the case unofficially by giving prisoner Morris a cover story to prevent his identity as a government informant and witness secret. Neither Jackson not Alley have commented about their removal from the case.

Judge Cooper also disallowed forensic psychiatric testimony that possibly could have shown that defendant Richardson had an antisocial personality disorder, which could have permitted prosecutors to argue that the defendant was a sociopath, and a future danger to others.

Richardson's lawyers had hired psychiatric experts who sought to prove that the defendant suffered from schizophrenia but could be treated with medication. Prosecutors hired forensic psychiatrist Michael Weiner, a veteran of similar cases, which resulted in an evaluation of Richardson. The trial judge, however, found that prosecutors had misled him as to how the evaluation was to be conducted, and threw out the findings of the prosecution experts.

According to Weiner, the "defense endeavored to exclude my testimony without knowing what it even would be speaks to how obvious and frightening Mr. Richardson's future risk is...Really, now, would any participant in this case whose relative is doing time want them anywhere near Brian Richardson?" Government psychiatric witnesses still billed in excess of $150,000 to the government, despite their testimony being ruled inadmissible by the trial judge.

Richardson's defense lawyers claimed to be happy with the result. According to Stephanie Kearns, who heads the Federal Defender Program, "Brian Richardson was a very sick man. His untreated mental illness and the culture that had been engrained in him over the two decades he spent in the most violent prison systems of this country, coalesced into the perfect storm when he found himself locked in a cell with a convicted pedophile."

One of Richardson's defense lawyers, attorney Mendelsohn, said that at the end of the trial, seven jurors voted for the death penalty and five for life in prison, which mirrored mock juries analyzed by defense lawyers. Without the forensic testimony thrown out by the trial judge, the jury was left without a compelling reason to vote for death, according to David Bruck,

a professor at Washing and Lee University School of Law: "It can be quite powerful testimony in a capital trial. It can give jurors something to hang their hats on when deciding to impose a death sentence."


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