OKLAHOMA: 'Inept' lawyer blamed for reversal

An appeals court in Denver on Tuesday overturned the Oklahoma City murder conviction of a death-row inmate because judges concluded his lawyer was "grossly inept."

The 10th U.S. Circuit Court of Appeals ruled 3-0 that James T. Fisher will have to be retried for the 19-year- old murder of Terry Neal or possibly set free.

The judges, in a 55-page decision, concluded that Fisher's trial attorney, former state Sen. E. Melvin Porter, "sabotaged his client's defense."

Porter spoke nine words during the sentencing phase of Fisher's trial, including "waive" when recognized for an opening statement; "rest" when recognized to present mitigating evidence; and "Judge, I object to that," to an overruled objection during the prosecutor's closing argument. His final 2 words were "We waive," when recognized for closing arguments.

 Porter, who also is a former Oklahoma County assessor, could not be reached Tuesday for comment. MO< Oklahoma County District Attorney Wes Lane said he will "absolutely retry" the case.

 Assistant District Attorney Richard Wintory called the death a "horrible, slow, nasty killing."

 "We thought we were in trouble with the case, so last year we reviewed the case," said Wintory, who has been assigned to it. "We talked to the family and assured them we are going to go forward."

 Fisher, then 19, was convicted of the 1982 murder of Neal, 30, at Neal's apartment. Fisher was from Buffalo, N.Y.

 "The case against Mr. Fisher was hardly overwhelming," the judges said, noting that forensic evidence wasn't presented against him.

 The prosecution's case consisted mainly of testimony of a witness who originally was charged with Neal's murder, the judges said.

 The witness, Fadjo Johnson, testified that he and Fisher met Neal in an area of downtown Oklahoma City known for homosexual prostitution and that Fisher killed Neal after having sex with him.

 In the course of Fisher's current appeal, Porter testified he had animosity toward his client, the judges said.

 "I believe my personal feelings toward James Fisher affected my representation of him," Porter testified. "At that time, I thought homosexuals were among the worst people in the world, and I did not like that aspect of this case."

 The judges, in the decision written for the six-state court by Judge Stephanie K. Seymour of Tulsa, concluded that Porter:

 Did not prepare for Fisher's trial.

 Did not challenge discrepancies in the prosecution's case.

 Was "incompetent" in investigating his client's alibi.

 "Exhibited hostility to his client and sympathy and agreement with the prosecution in ways that put his actions directly at odds with his client's interest."

 Questioned Fisher on the witness stand in a way resembling "a police interrogation of a hostile suspect rather than the presentation of a defense."

 Blatantly failed "to act as his client's advocate and the state's adversary."

 Failed to present a defense theory or a closing argument.

 "Some of (Porter's) unprofessional conduct was deficient because it was grossly inept," the judges said.

 Seymour was joined in the decision by a judge from Santa Fe, N.M., and a judge from Salt Lake City. They said they are not convinced Fisher would have been convicted if Porter had not been "incompetent."

 In 1999, U.S. District Judge Tim Leonard in Oklahoma City ruled that Fisher was entitled to a new penalty- phase trial to re-determine his sentence in light of Porter's "nonexistent" representation when jurors were considering Fisher's sentence.

 Oklahoma Attorney General Drew Edmondson appealed, arguing that Fisher did not present a case that he was not guilty and did not present exculpatory evidence.

 Fisher also appealed, arguing that Leonard should have concluded he did not have a fair trial at the guilt phase as well as the penalty phase. It was on that issue the appellate judges agreed with Fisher.