Facing the death penalty, Gwinnett woman chooses a lawyer — herself

Moss has said she is leaving her fate in God's hands, rather than the two experienced public defenders who were initially assigned to represent her. They work for the state's capital defender office, which is credited as a primary reason no one has received a death sentence in Georgia in more than five years.

It begs the question: With her life on the line, is Moss going to be able to put up a fair fight on her own behalf?

“It looks like a prolonged suicide,” said Atlanta attorney Jack Martin, who has defended a number of capital cases. “God may be an all-powerful and merciful force in nature, but he’s a lousy criminal defense lawyer.”

Will She Plead For Her Life?

During a pretrial hearing last Monday, Moss, 35, told Chief Superior Court Judge George Hutchinson III she was ready for her upcoming trial.

Over the course of the three-hour-long proceeding, Moss repeatedly gave the judge yes or no answers. The only subject on which she elaborated was the clothes her family has brought for her so she can change out of her jail jumpsuit. They’re not big enough, she told Hutchinson.

“I’ll need to switch some of them out,” Moss said.

Moss’s demeanor throughout the hearing was unfailingly pleasant. She often rose from her seat and grinned when she answered Hutchinson’s questions. But there’s no telling how she’ll be during the trial.

How will she react when the prosecution shows Emani's autopsy and crime scene photos to the jury? Moss's husband, Eman Moss, was also charged with his daughter's murder. He pleaded guilty in 2015 and was sentenced to life in prison without the possibility of parole. He also agreed to testify against his wife.

So far, Tiffany Moss has given no indication she will actively defend herself. This provokes a number of other questions: Will she participate in jury selection? Will she make an opening statement? Will she cross-examine her husband? Will she present any witnesses? Will she plead for her life?

University of Georgia law professor Alan Cook, a former district attorney, said no prosecutor wants to try a case against a pro se defendant.

“In theory, defendants who represent themselves should know the rules of evidence and the protocols of trying a case,” Cook said. “Of course, they don’t. So this means the prosecution will have to do its job and do the defendant’s job, too. That’s because you want a fair trial. You want the defendant to get due process.”

At Monday’s hearing, Judge Hutchinson told Moss how a death-penalty trial works. First, there’s the phase in which the jury will find you guilty or not guilty. If it finds you guilty, then it moves to the penalty phase, in which jurors will decide whether you live or die, the judge said. Hutchinson also told Moss about the rule of sequestration (making sure your witnesses aren’t in the courtroom listening to testimony before they take the stand) and stipulations (in which both sides agree to allow certain information into evidence without the need for testimony).

Hutchinson also reminded Moss she can take the stand and testify, essentially giving a statement to the jury. But if you choose to do so, that also means you’ll be subject to cross-examination by the prosecution, the judge said.

“I do want you to be thinking about it,” Hutchinson said.

In prior hearings, Hutchinson implored Moss to accept legal representation. After she refused, the judge presided over closed-door hearings before determining she was competent to stand trial and could represent herself.

Hutchinson’s decision was appealed before trial to the Georgia Supreme Court. The high court declined to hear the appeal, allowing Hutchinson’s ruling to stand and the trial to get underway.

From Ted Bundy to Dylann Roof

In 1975, the U.S. Supreme Court ruled that criminal defendants have a constitutional right to represent themselves at trial after being adequately warned of the dangers and disadvantages in doing so. Since then, a number of high-profile defendants chose to do just that.

Serial killer Ted Bundy, who attended law school, defended himself at trial in Florida. The jury sentenced him to death. Colin Ferguson, who killed six people on a Long Island commuter train in 1993, was convicted at trial and sentenced to 315 years in prison. More recently, Dylann Roof was sentenced to death for the 2015 massacre at the Emanuel AME Church in Charleston, S.C.

Moss is not the first defendant in Georgia to act as her own lawyer at a death-penalty trial. In 2015, Jamie Hood represented himself when he was convicted of the shooting death of a police officer in Athens, the attempted murder of another officer and other offenses.

During the trial, Hood was an active participant. He cross-examined the officer he shot and testified from the witness stand. The jury ultimately spared him, sentencing Hood to life without the possibility parole instead of death by lethal injection.

District Attorney Ken Mauldin, who tried Hood, said pro se defendants pose unique challenges.

“You’ve almost got to walk on egg shells to make sure you’re doing everything correctly and making sure it doesn’t look like you’re taking advantage of someone,” he said. “The prosecutor’s job is to do what’s right and to seek justice. So there are times when you’ll have to make sure things are being done to protect the defendant’s rights.”

Mauldin said he’s wondered whether the jurors gave Hood life because they got to know him during the trial, making it more difficult to sentence him to death. “It’s also possible they thought life in prison without parole was a worse sentence than death,” the DA said.

Death Penalty Drought

The last time a death sentence was handed down by a Georgia jury was March 2014 in Augusta against Adrian Hargrove, who committed a triple murder. When asked why death sentences have become so rare, prosecutors and defense attorneys agree with Mauldin’s assessment: the availability of a life-without-parole sentence is seen by many as more acceptable.

Without a skillful and cohesive defense, Moss could break the drought and receive Georgia’s first death sentence in years.

Nationally, views about the death penalty have also been changing. Over the past decade, eight states abolished capital punishment through court rulings, moratoria issued by governors and repeals at the ballot box or in the legislature.

And there have even been some signals of shift in a law-and-order state like Georgia. Last month, a bipartisan group of lawmakers introduced a bill to abolish the death penalty here. It was introduced too late to move this session but will be up for consideration when lawmakers gather again next year.

But the death penalty still remains on the books in Georgia and this week it’s staring Moss in the face.

Brad Gardner and Emily Gilbert, the two capital defenders initially assigned to represent Moss, have said she stopped talking to them months ago. Hutchinson has assigned them to be “standby counsel,” and they sit in the courtroom gallery ready to assist Moss if she asks for help.

During trial, it’s possible the capital defenders could ask Hutchinston to reconsider his decision. In 2008, the U.S. Supreme Court ruled that defendants found competent to stand trial are not necessarily competent to represent themselves if they can’t conduct their own defense. The court said the trial judge should made such a decision in the interest of achieving a fair trial.

If Moss wants to end her case, she can do so now.

During Monday’s hearing, District Attorney Danny Porter said he’s offered Moss the same plea agreement he offered her husband. If she pleads guilty to Emani’s murder, Porter will withdraw the death penalty and allow her to be sentenced to life without parole. But that offer stands only until a jury is selected, expected sometime this week, he said.

Porter also told Hutchinson that the last time he broached such an agreement with Moss, “she emphatically stated she did not want to discuss a plea.”