Inmate awaits execution, yet hopes real name will save his life

BRETT BARROUQUERE
Associated Press
Sat, Dec. 02, 2006

LOUISVILLE, Ky. - Fred Radolovich is still puzzled why a man facing a trial for his life would lie about his own name.

"I've been trying to figure that out for 17 years," said Radolovich, an attorney in Louisville. "He just did."

That lie, by a man who identified himself as James Earl Slaughter, combined with Radolovich's failure to do any research on or preparation work with his client, helped lead to Slaughter's conviction in a 1983 murder and robbery and his place on Kentucky's Death Row.

Now Slaughter, whose real name is Jeffrey DeVan Leonard, is hoping the U.S. Supreme Court will take his case based on a claim that Radolovich's lawyering was so bad that it violated the Constitution.

"This country is going to let somebody die and the jury didn't even know his name," said his current attorney, Marguerite Neill Thomas.

Slaughter, 43, has spent more than half his life on Death Row after being convicted in October 1983 of robbing and killing Esther Stewart, who ran "The Clothes Rack" consignment store in Louisville, 10 months earlier.

Slaughter, then 20, was arrested the day after the slaying and gave police the name "James Earl Slawter," a misspelling of a name he pulled from a family friend from childhood in Alabama. Slaughter told police that an accomplice named "Red" attacked Stewart, stabbing her to death in a robbery while he waited outside.

"Red" was never found, but Slaughter's clothes with Stewart's blood on them were. Slaughter was charged with murder and prosecutors sought the death penalty.

In Slaughter's case, Radolovich admitted in court and in an interview with The Associated Press that he did little to independently investigate Slaughter's background, relying on post-arrest reports from Louisville police and the Kentucky Department of Corrections for information about his client's background and calling an elderly aunt of Slaughter's who had little to say.

"I didn't recheck his fingerprints because I didn't think I had to," Radolovich said.

Slaughter didn't testify at trial - a decision Radolovich said was based on the background check from the police and the state. Instead, he focused on cutting down the prosecution's case. Radolovich told a court during an appeal hearing in 1994 that a guilty verdict would render the sentencing phase "a blood bath," so he did no preparation work for it.

That decision left Slaughter to plea for his own life. Slaughter told jurors of running away from home, a crime-filled life, drug abuse and failing to support a 3-year-old son. Slaughter also talked about his parents separating when he was three, how his father died in prison and his mother's death in 1980.

Except for his father dying in prison, none of Slaughter's tale was true. His mother and two brothers were alive and willing to testify on his behalf - if someone had contacted them about the trial.

"He thought he was helping himself," Thomas said. "What the jury heard was, 'I'm a bad ass who travels the country and steals for a living.' Who would want this guy living among us?"

It would be several years after the guilty verdict and death sentence before Thomas discovered Slaughter's real name, Thomas said.

"Had Radolovich done anything, one simple records request, would have let him know that wasn't James Earl Slaughter," Thomas said.

Radolovich has been charged with perjury for statements made about his background during an appeal hearing and has drawn the ire of state and federal judges, even though all but one judge has upheld Slaughter's conviction and sentence. U.S. District Judge Karen Coffman, in 2001, granted Slaughter a new sentencing hearing, saying Radolovich's failure to investigate his client's background, or even learn his real name, gave the jury an inaccurate picture of his client.

The pre-trial work of the attorneys, as well as what they do and don't do during the trial, often determine the outcome of capital cases, said Michael Mello, a University of Vermont law professor who has handled death penalty appeals, including representing notorious serial killer Ted Bundy.

"For better or for worse, it's the lawyers who decide who lives and who dies," Mello said.

The U.S. Supreme Court has never set down a bright line rule to determine when a lawyer has done such a bad job that it becomes a constitutional violation. The result is some courts have ruled that lawyers sleeping through parts of a trial may be deficient legal work, but not so bad that it violates constitutional standards, Mello said.

In June, the U.S. 6th Circuit Court of Appeals overturned Coffman's decision on a 2-1 vote. Appeals judges Danny Boggs and Alice Batchelder found Radolovich's performance "deficient," but not so bad that it unfairly affected the jury's decision or violated the Constitution.

The full court voted 7-7 in November against rehearing the case. In an unusual move, the seven judges on the losing end of the vote issued a dissenting opinion, saying it was no surprise that the jury felt compelled to sentence Slaughter to death, given they believed there was "not even a single family member to suggest his life should be spared."

"Although we cannot be absolutely certain," the dissenters said, "this court's decision leaves one aspect of this case indisputable: We will never know."

Mello said the case is tailor-made for the Supreme Court to take and clarify just how bad a lawyer can be before his actions impact the outcome of a trial.

"This case has all the red flags," Mello said. "This case is just an embarrassment to the legal system."

Radolovich said it still bothers him that Slaughter is on Death Row, but said that Slaughter set his own course with the first lie.

"Now, he's afraid of dying. Either lethal injection or electrocution, it's not a pleasant way to die," Radolovich said. "That lady in the clothing store didn't want to die, either."