Injustice Experienced By David P. Heath In Rhode Island

Complaint One

7-20-99 Mr. David P. Heath asserts the following wrongdoing in his case: Mr. Heath was found guilty after a trial where:

• his Attorney Joslin Hall was either high, hung over or in some other way incapacitated to the point she had trouble staying awake and alert during trial and
• Judge Needham had to shout at Atty. Hall several times to awaken or alert her to the ongoing proceedings.

Mr. Heath filed a motion Pro se [representing himself without a lawyer] in Superior Court to remit the costs and fees related to prior matters before the courts. RIGL 12-20-8 states,

"The costs of prosecution, conviction and commitment of persons imprisoned in the Adult Correctional Institution shall be paid by the state." The law goes on to exclude "criminal injuries compensation costs." [RIGL 12-25-1 et. seq.]

Mr. Heath received an undated denial letter from Master Anthony Carnevale, Jr.. It is clear this rejection letter was a form letter "boilerplate" decision with nothing on it to indicate any real consideration or authorization from the court. Mr. Heath's boilerplate decision contained a facsimile of Master Carnevale's signature and another completely illegible "signature." The wording of Master Carnevale's undated boilerplate decision read:

"This is to advise you that your Motion for Remission of Costs and Fines has been referred to me. After careful review of all the facts in this case your motion is hereby denied. Prior to your release, work placement or parole, a payment schedule will be arranged for you."

The handling of Mr. Heath's motion indicates that motions for remission of costs and fines and related issues of fact are now heard and decided by law clerks without any serious review or consideration by the court.

Mr. Heath sent a letter to Master Carnevale on 6-29-99 requesting a clarification on the above ruling. This complaint will be updated as the situation warrants.

Complaint Two

Indictment No. P1/93-2211A was filed in Providence County Superior Court on July 9, 1993, charging David Heath with a single count of burglary. On June 29, 1994 a jury trial was had, Judge Thomas t. Needham presiding. A guilty verdict was returned at three o'clock that day. The entire transcript of this capital trial comprises only fifty-eight pages including preliminary remarks to the jury panel, testimony, closing arguments, jury instructions, and the motion for a new trial. The testimony comprises only twenty-nine pages.

The next day, a motion for a new trial was prepared by private trial attorney Jocelyn Hall and sent to the Attorney General's Office, but apparently did not reach the court file until July 26, 1994. On August 1, 1994, Justice Needham refused to entertain the motion for a new trial because of clear court error, and Hall's failure to file the motion to the Judge as required. He ruled that the court was without jurisdiction to hear the motion since it had not been filed within ten days of the return of the verdict. On August 13, 1994 Mr. Heath was sentenced to a term of twenty years, ten years to serve, ten years suspended, ten years probation for burglary.

The RI Supreme Court is one of the few, or the only one in the country that consistently refuses to address ineffective assistance of counsel (a constitutional violation of the sixth amendment) on direct appeal. (see e.g. State v. Heath 665 A.2d 1336 (RI 1995) It seems the courts put procedure over substance and counsel's error over the clients constitutional rights. Heath had to file a post-conviction petition and remains incarcerated. The transcript is self-evident that Heath's counsel Hall denied his right to effective assistance of counsel, hence due process is also violated.

According to three well respected attorneys, Lise J. Gescheidt, Robert Mann, Janice M. Weisfeld, Jocelyn Hall was grossly "ineffective, and (her conduct) fell well below any objective standard of reasonable competence." Hall, according to the above counsel:

• Failed to file for discovery.
• Conducted no pre-trial investigation.
• Failed to make an opening statement.
• Failed to cross-examine witness regarding Heath's intoxication.
• Failed to submit jury instruction's or argue any plausible theory of defense to the jury.
• Failed to file a timely motion for new trial.
• Failed to attend pre-sentence interview or review report prior to sentencing.
• Failed to call witnesses or present any evidence at sentencing of Heath's substance abuse history.
• Mann was also deeply concerned about Hall's own substance abuse problems at the trial, and conflict of interest with another client of Hall's.

The undisputed facts after trial show, though Mr. Heath was in a house on 884 Plainfield Street in Providence for quite some time, nothing in the house was touched or taken by Heath. Louis Pascone testified that despite the fact that there was more than ample time, nothing was taken, nor did Heath attempt to flee. After Robert Mann's testimony it was established as uncontested fact that Hall had a serious drug abuse problem and was high during the trial. Judge Needham actually yelled at Ms. Hall about five times during trial to wake her or get her attention. Needham refused to grant Heath's Post-conviction petition and stated at Post- conviction transcripts p.223, " I'm not going to hand the anvil around the neck of this counsel. I think Mr. Heath got from his counsel exactly what he bargained for: A right to contest whether or not the State of Rhode Island could prove the charge against him."

Heath believes what Judge Needham is saying is there is no such thing as ineffective assistance of counsel. All a RI lawyer had to do is show up. He apparently is saying you wanted a trial, you got one, and whether it was fair or complied with Constitutional mandates is irrelevant to him.

This matter is now pending before the RI Supreme Court, and this complaint will be up-dated to reflect appellate procedures. Do you as a citizen of RI have a constitutional right to effective counsel or can RI lawyers take your money and just show up at trial, even drunk or high on drugs? The Superior Court said Hall's conduct or lack thereof was good enough. Let's see what the Supreme Court says. Ms. Hall, to our knowledge , has been disbarred, but that brings little comfort to Mr. Heath. It is reported she just started her practice again in Indiana.

Update

The purpose of this website is to report and follow up on cases of injustice. We pray that as other cases on this site get to the Rhode Island Supreme Court, their conduct will be "supreme" as in this case which reversed Judge Needham's decision.

We note that Joslin Hall's conduct was actually deemed incompetent as listed in the original complaint, which the Supreme Court did not overlook stating:

"We conclude that in his bench decision, the hearing justice failed to considered the plethora of actual identified defiance in Hall's conduct, and overlooked several glaring omissions in her representation of Heath. Although a single failure or omission on the part of privately retained counsel is unlikely to meet the Strickland threshold, the representation in this case was so deficient in so many respects, including pretrial preparation, presentation, and post-trial motions and sentencing, that when viewed in its entirety, in the context of a trial transcript barely fifty-four pages long, was so grossly lacking and deficient that we simply have no confidence in the outcome of this criminal proceeding."

The unfortunate reality of this decision, perhaps the first on record in the State of Rhode Island, is it gives no guidance as to what standard Rhode Island lawyers are held to. Even the untrained layman could see this was not only "ineffective assistance of counsel" but gross incompetence! The Rhode Island Supreme Court pointed out "this conduct amount(ed) to complete absence of a defense." Yet there was no clear wording that this constituted ineffective assistance of counsel so this ruling could be used in other cases.

Note regarding ineffective assistance of counsel

See related issues in the Edmond Brown case.

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