Twice James T. Fisher Jr. has fought to save his life before a jury of his peers and has lost both times. After more than 20 years on death row, Fisher is hoping a third time will do the trick.
On Tuesday, Fisher's attorneys go before the Oklahoma State Court of Criminal Appeals and will ask the judges to grant Fisher a new trial. It is never easy asking five judges to give a man a third chance of clearing his name for murder. But Fisher's attorney will walk into the courtroom with a powerful weapon: a strong recommendation from a district judge saying Fisher deserves another chance.
"This court concludes that Mr. Fisher's constitutional rights were prejudiced by counsel's deficient performance and that he should have his conviction and death penalty reversed and a new trial ordered," wrote Oklahoma County District Judge Kenneth C. Watson in his opinion to the appeals court May 2008.
The state attorney general's office concedes Watson's point on the death sentence, but that is as far as the state will go.
"We have informed the court that Mr. Fisher is entitled to a new sentencing hearing due to the lack of investigation done by trial counsel in the second stage proceedings," said Charlie Price, director of communications for the attorney general. "However, the evidence against Mr. Fisher, including incriminating statements made by Mr. Fisher himself, was overwhelming and would likely have resulted in conviction regardless of his attorney's performance."
CONVICTED AND SENTENCED
Fisher was convicted and sentenced to death for the 1982 murder of Terry Gene Neal. The crime took place at Neal's apartment in northwest Oklahoma City. Prosecutors alleged Fisher killed Neal after a sexual encounter followed by an argument where Fisher busted a glass bottle over Neal's head, then taking a broken piece and stabbing Neal in the neck. Fisher was later arrested at his parent's home in New York City.
The first trial and conviction came in September of 1983. Several years passed before the U.S. 10th Circuit Court of Appeals found Fisher's attorney had done an inadequate job of defending his client and granted Fisher a new trial in 2002. The attorney first assigned to Fisher, Melvin Porter, admitted he may have let his prejudices influence his representation of Fisher. Porter, a state senator at the time of the trial, said he did not approve of Fisher's homosexual lifestyle.
"I thought homosexuals were among the worst people in the world," Porter said in a 1996 affidavit.
The second trial took place in April of 2005, but Fisher found no relief. A jury found him guilty again and handed down another sentence of death.
Just as in the first trial, the performance of Fisher's attorney is the subject of his appeal. Johnny Albert handled Fisher's case for the second trial. Albert was a well-known and successful criminal defense attorney with expertise in murder cases. Defense attorneys throughout the county thought Fisher stood a good chance of avoiding conviction with Albert at his side.
DRUG AND ALCOHOL PROBLEM
However, during the Fisher case, Albert was deep into a drug and alcohol problem which eventually cost him his license to practice law in Oklahoma. As Judge Watson pointed out in his brief to the appeals court, Albert failed in his duties numerous times during the case. Watson found that Albert had done very little investigation, was unaware of key facts which might have helped Fisher, hardly called any witnesses during trial and had an antagonistic relationship with Fisher. Things were so bad between attorney and client that Fisher refused to attend his own trial.
In testimony during hearings before Judge Watson, Albert admitted his mistakes and substance abuse problem, which resulted in a poor performance of Fisher's case. After successfully completing a drug rehab program, Albert retained his law license.
At Tuesday's hearing, Fisher will ask the court to throw out the conviction and death sentence and grant a new trial. While allowing Fisher a chance at a new sentencing hearing, the state will argue because of Fisher's conduct and incriminating statements, he should not be granted a new trial.
"The U.S. Supreme Court ruled that a defendant must show both that the defense attorney's performance was deficient and that the defendant was prejudiced by that performance," Price said. "We argue Mr. Fisher was not prejudiced by his attorney's performance during guilt stage proceedings."
The incriminating statement the attorney general is relying on came when police arrested Fisher in New York on Jan. 10, 1983. According to court documents, Fisher told police that he hit a guy in the head with a bottle and that he thought the guy's name was Terry.
Fisher has since denied making that statement.
The appeals court hearing will be held at the Oklahoma City University Law School. "Scott Cooper