Yesterday the Eleventh Circuit Court of Appeals denied a prisoner's request for a stay of execution and petition to file a successive habeas petition. In re: Conklin, No. 05-13817 (11th Cir. July 12, 2005). Judge Barkett's dissent captures the court's error:
Conklin’s attorney was given only thirty-seven days to prepare an exceedingly complex capital case in which technical medical evidence and detailed expert testimony played a pivotal role. The trial court inexplicably denied repeated requests for more time to prepare for trial, denied Conklin the paltry sum of $500 with which to hire a medical expert, and refused to give Conklin’s attorney additional time to prepare for the sentencing hearing, which followed on the heels of his conviction. The amazing rush to trial and denial of money for a defense expert when the whole case turned on the state’s medical expert’s testimony cannot possibly be deemed fair process.
Conklin, who was 5'7" and 150 pounds, admitted he killed George Crooks, who was 6'2" and 200 pounds. Conklin’s sole defense was that he did not intend to kill Crooks and did so in a struggle to protect himself from being raped. After Conklin killed Crooks, he dismembered the body in an attempt to dispose of it. To prove that Conklin had the requisite intent to support a murder conviction, the state had to establish that some of the knife wounds on Crooks’ body had been inflicted before death. The only evidence against Crooks on this question was the testimony of Dr. Saleh Zaki, the state’s medical examiner. Although Dr. Zaki conceded on cross-examination that the wounds could have occurred after death, he had testified on direct examination that knife wounds to Crooks’ neck were inflicted “antemortem,” or before death. Having been denied the funds to hire a medical expert who would have testified affirmatively that the knife wounds occurred post-mortem rather than ante-mortem, thus countering Dr. Zaki’s direct testimony with that of another respected expert and amplifying the effect of his concession that the knife wounds could have been inflicted before death, Conklin could only argue Zaki’s ambiguity regarding this crucial issue.
Considering the unseemly haste to obtain a conviction in this case, it is not surprising that the state’s medical expert at trial, Dr. Zaki, has now come forward with an affidavit saying that in his opinion, “Mr. Conklin did not intentionally set out to kill Mr. Crooks . . . . I saw none of the evidence that I have seen in many other cases in which I testified to indicate that this killing involved planning, intent, torture, or depravity.” This testimony, in addition to the affidavit of the independent medical examiner appointed by federal district court, Dr. Werner Spitz, who opines that all of the knife wounds on the body occurred after death, consistent with Conklin’s trial testimony, should give any court pause.
Furthermore, Conklin was also denied a fair sentencing hearing. Although the majority suggests that Conklin’s attorney made a reasonable “tactical” decision not to present any mitigating evidence at the sentencing phase, and that any available testimony would not have been helpful, the trial court’s refusal to grant counsel time to prepare for sentencing and refusal to provide funding for a psychiatric expert left Conklin’s attorney no reasonable alternatives to choose from. This hardly constitutes strategy. I would grant the request for a stay of execution and habeas relief.