The recent trial that sent a Gwinnett County woman to death row for the starvation of her stepdaughter was extremely disturbing, with ghastly autopsy photos documenting the 10-year-old's unimaginable suffering. It was also one of the most lopsided death-penalty trials in Georgia history because Tiffany Moss, acting as her own attorney, did nothing to defend herself.
Moss’ unsettling decision to present no evidence during the sentencing phase of her trial was extraordinarily unusual. It happened at a time when state capital defenders routinely conduct extensive investigations into a defendant’s childhood, schooling and background so they can introduce mitigating evidence to try and convince a jury to impose a sentence of life, not death.
The strategy has been so effective that Moss’ death sentence was the first one handed down in Georgia in more than five years. But her inaction during trial made the jury’s final verdict seem inevitable. And maybe that was the point, some said.
“Was this a suicide by trial?” wondered Denise de la Rue, a jury consultant in Decatur.
The Georgia case played out very differently than a similar one in Florida that played out more than a decade ago. In that case, judge appointed a lawyer to a convicted man who refused to fight his death sentence.
Then there is the question of Moss’ mental fitness.
In pretrial rulings, Superior Court Judge George Hutchinson found Moss both competent to stand trial, and free to represent herself. She had said she was putting her case in God's hands, although capital defenders who initially represented her disclosed that she had suffered brain damage.
But the six-man, six-woman jury in Moss’ case heard none of that.
What they did hear were the gruesome details of Emani Moss’ death in the fall of 2013. They heard how Tiffany Moss cared for and fed the two children of her own who lived with Emani in an apartment near Lawrenceville.
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And they heard how Moss and her husband kept Emani in her bedroom and out of public view as she wasted away. After Emani died, the couple tried to cover up her death by stuffing her emaciated body into a galvanized trash can and setting it on fire.
"Representing yourself is very different than sitting there and doing nothing," said de la Rue, who has assisted lawyers defending high-profile clients such as former NFL star Ray Lewis and Centennial Olympic Park bomber Eric Robert Rudolph. "How can anyone be considered competent when they do nothing?"
Atlanta lawyer Leah Ward Sears, a former chief justice of the state Supreme Court, said there is a low bar for criminal defendants to be found competent to stand trial.
Credit: Kimberly Smith / ksmith@ajc.com
Credit: Kimberly Smith / ksmith@ajc.com
“This whole thing is a terrible tragedy, but it was her decision,” Sears said. “I really believe in the jury system in this country. And this jury spoke. They saw herself representing herself. They saw her doing nothing. They had a chance to give her something less than death. But they didn’t.”
The U.S. Supreme Court has recognized that juries should know the character and record of an offender because of “the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.”
This type of individualized information for the jury is “a constitutionally indispensable part of the process of inflicting the penalty of death,” the high court said in a 1976 opinion. Without it, “the fundamental respect for humanity” cannot be given.
After Moss, 36, was convicted, Hutchinson reminded her she could address the jury to help them decide what the appropriate sentence should be. She could also call upon family members who’d attended the trial to testify on her behalf, the judge said.
Credit: Bob Andres
Credit: Bob Andres
He added, “Is there anything I can do to assist you?”
“No, your honor,” Moss replied politely, as she did throughout the trial.
But when it came time for her to put up mitigation evidence or talk to the jury, she declined.
Moss’ only participation in the trial occurred during jury selection, which lasted little more than a week.
Early on, she nervously asked a few questions to a handful of jurors. On two occasions, she won challenges to keep jurors who seemed favorable to the defense in the final pool.
But as jury selection wore on, Moss appeared to shut down. Her easy smile disappeared. She asked no more questions and raised no more objections, and this behavior continued during both the guilt-innocence and sentencing phases of the trial.
When it became clear Moss would not defend herself, two capital defenders who once represented her and were appointed "standby counsel" sought to intervene and represent Moss during the penalty phase of the trial. But Hutchinson, after hearing from Moss that she wished to continue representing herself, declined the defenders' request.
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That decision by the judge and his previous ruling finding Moss competent to represent herself are sure to be the key thrusts of appeals filed on her behalf.
Those appeals are certain to cite the case of James Barnes, who represented himself at his death-penalty trial in 2007 for the sexual assault and murder of a Melbourne, Fla., woman. Barnes confessed to this killing while he was in prison for the murder of his wife.
After the state rested its case during the sentencing phase, Barnes said he would present no evidence. Upon hearing that, the trial judge appointed an attorney to investigate and present mitigating evidence on Barnes’ behalf and over Barnes’ objection. The lawyer, with help from a court-appointed psychologist and mitigation expert, made the presentation at the continuation of the trial a few months later. Barnes was sentenced to death anyway.
In his appeal, Barnes contended the trial judge improperly trampled on his right to defend himself. But in 2010, the Florida Supreme Court upheld the judge’s decision. It said it was not prepared to rule that a judge may never appoint counsel when a pro se defendant’s refusal to present mitigating evidence “impedes or prevents the trial court’s exercise of its constitutional duty to provide individualized sentencing.”
Credit: Bob Andres
Credit: Bob Andres
Last year, the 11th U.S. Circuit Court of Appeals, which sets precedents for cases in Georgia, Florida and Alabama, agreed with the Florida high court’s decision.
“A defendant shouldn’t be in a situation to stipulate to a death sentence,” said Sam Baxter Bardwell, the Titusville, Fla., lawyer appointed to represent Barnes. “The government has an interest in making sure a death sentence is imposed in the fairest manner possible and only against the most evil among us.”
Gwinnett District Attorney Danny Porter wondered whether Moss was trying to gain sympathy from the jury. As for what she did to Emani, he said, "This was one of the worst cases I've ever seen."
But Stephen Bright, a professor at Georgia State and Yale law schools, said Moss' trial should never have gone so far.
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“This was a complete travesty of justice that didn’t need to take place,” said Bright, an outspoken opponent of capital punishment. “This was like shooting a duck in a barrel. She obviously is not a rational person. She sat there and let the state roll all over her. That wasn’t a trial.”
A 2008 U.S. Supreme Court decision favored the capital defenders being able to step in on Moss’ behalf, Bright said.
In that case, out of Indiana, Ahmad Edwards was charged with shooting an FBI agent, a security guard and a bystander during a robbery. Although Edwards was found competent to stand trial, the trial judge appointed a lawyer to represent him after finding him too mentally ill to represent himself.
In a 7-2 opinion, the Supreme Court upheld that judge’s decision. Allowing Edwards to act as his own lawyer, the court said, may have “undercut the most basic of the Constitution’s criminal law objectives, providing a fair trial.”
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