Nicholas Acklin is on death row in Alabama, our home state where we both have practiced law for almost 50 years. As past presidents of the Alabama State Bar, and together with former members of Alabama’s appellate courts, we have urged the U.S. Supreme Court to review Mr. Acklin’s case and ensure that he receives a fair sentencing hearing that comports with the U.S. Constitution.

That did not happen the first time around. Mr. Acklin’s lawyer learned, on the eve of trial, that Mr. Acklin’s father had severely abused him as a child. This was powerful mitigation evidence that may have caused the judge or jury to spare Mr. Acklin’s life, if his attorney had presented it. But Mr. Acklin’s lawyer did not present the abuse evidence because Mr. Acklin’s father, who was paying his legal fees, threatened to stop paying if the lawyer revealed his abusive behavior in open court. In short, Mr. Acklin’s attorney put his own interest in being paid — and the wishes of his client’s abusive father — ahead of his client’s life.

Rule 5.4(c) of the Alabama Rules of Professional Conduct, which govern attorney conduct in Alabama, provides: “A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”

This Rule is intended to protect a client by requiring the lawyer to place the client’s best interests above his or her own. Contrary to this rule, Mr. Acklin’s attorney put his own financial self interest first.

As we wrote to the Court, “[T]here is injury here not only to Acklin, though his injury could not be more dire. If Acklin’s death sentence is permitted to stand under these circumstances, our system of justice itself is also damaged.” Mr. Acklin’s lawyer failed in his ethical duties of loyalty, competence, and candor, which are the utmost expectations of an attorney, and caused the system to break down in the worst possible way.

First, Mr. Acklin’s attorney failed in his duty of competence. Widely accepted standards at the time of Mr. Acklin’s trial required Mr. Acklin’s attorney to conduct a thorough mitigation investigation. Such an investigation would have revealed the childhood abuse months before trial, rather than two days before. Had Mr. Acklin’s attorney discovered this critical evidence at the outset, he could have avoided becoming financially dependent on the perpetrator of the abuse.

Second, Mr. Acklin’s attorney violated his duty of loyalty to his client in a way that was acute and obvious. Just two days before trial, Mr. Acklin’s attorney met with Mr. Acklin’s mother alone. For the first time, she revealed that Mr. Acklin’s father had abused her, Mr. Acklin, and Mr. Acklin’s brothers, including with physical violence. At times, Mr. Acklin’s father threatened to kill Mr. Acklin at gunpoint.

Mr. Acklin’s attorney understood that this information would be critical mitigation evidence that could be used to save his client’s life, so he asked Mr. Acklin’s father if he would testify about it. Mr. Acklin’s father responded that if the attorney went down this road, he would be “done helping with this case.” When Mr. Acklin’s attorney chose to do the bidding of the abuser, Mr. Acklin’s right to conflict-free counsel was violated.

Third, Mr. Acklin’s attorney failed to uphold the duty of candor. After Mr. Acklin was convicted, the attorney called Mr. Acklin’s father to testify before the jury for the penalty phase. Mr. Acklin’s father testified that he was “overly protective, really a father who loves his children,” and that Mr. Acklin was raised in “a God-fearing home.” Mr. Acklin’s father left the impression that Mr. Acklin’s childhood was unremarkable. The jury voted 10 to 2 for death, the absolute minimum needed to make a death penalty recommendation in Alabama.

At the sentencing hearing before the judge, Mr. Acklin’s attorney again made the unconscionable decision to have Mr. Acklin’s father address the court. Mr. Acklin’s father reiterated that Mr. Acklin was raised in a “Christian home” with “good values.” The judge expressly relied on Mr. Acklin’s father’s false testimony in sentencing Mr. Acklin to die. The court noted that “most killers” were the products of abusive childhoods, but Mr. Acklin was “exposed to all of the values that are central to an ordered society; however, he chose to reject them.” Mr. Acklin’s attorney knew that the father’s testimony was false and that the court’s conclusions were incorrect, but he stood mute.

There is no dispute that Mr. Acklin was convicted of a serious crime. But when someone is accused of such a crime, it is even more important to uphold our Constitution. Regardless of one’s views about the death penalty, this case cannot represent the way our government may go about ending a human life. For that reason, we have urged the Court to accept Mr. Acklin’s petition, enforce the Sixth and Fourteenth Amendments, and safeguard the legitimacy of our criminal justice system.

William Clark and Bobby Segall are past presidents of the Alabama State Bar and co-signers of an amicus brief to the U.S. Supreme Court in support of Petitioner Nicholas Acklin.

Suggested citation: William Clark & Bobby Segall, Attorney’s Conflict of Interest Sent His Client to Death Row, JURIST – Academic Commentary, Mar. 10, 2019, http://jurist.org/commentary/2019/03/clark-segall-attorney-conflict-death-row/

This article was prepared for publication by Patrick Sherry, a JURIST Senior Editor. Please direct any questions or comments to him at commentary@jurist.org