"The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."
- Strickland v. Washington, 466 U.S. 668 (1984)
"Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."
- Rule 1.1 North Carolina State Bar, Rules of Professional Conduct
Having read about the woefully deficient investigation and prosecution in the case that's detailed here, the total lack of evidence linking Scott to the scene and the utter implausibility of the sole witness's story we surely should be questioning how this conviction could ever have come to happen.
The US constitution guarantees a defendant the right to counsel, and moreover this has been confirmed by the Supreme Court to guarantee the right to effective counsel. Just having a lawyer isn't enough- they have to do a good job. This is never more crucial than in a case where the defendant's life is at stake.
Inexcusable errors on the part of Scott's trial counsel include:
Failure to challenge false and misleading evidence presented by the State
Failing to investigate and call key defense witnesses who would have told the jury that Scott could not have been guilty of the crime he was accused of
Failure to cross-examine the State's witnesses effectively
Failure to investigate the crime scene effectively, or even consult with a crime scene expert
It's quite clear that the failure of Scott's trial attorneys to carry out the basic minimum requirements for representing a defendant in a Capital case have so compromised his defense as presented to the jury that the result of the trial cannot be considered 'just' in any way. If not for trial counsel's repeated error, there is far more than just a 'reasonable' probability that Scott would not be sitting on Death Row today.
To make matters even worse, Scott has not only been let down by his trial attorneys, but those that have been appointed to represent him since. In pursuing his claim of ineffective assistance at trial, those now appointed to help him have repeatedly failed to keep him informed, ignored his instructions and filed motions on his behalf without his approval or consent.
What is blindingly obvious to anyone concerned, but seemingly not those who are profiting from Scott's continuing incarceration, is that Scott should not be where he is. He is not just fighting to get off death row, he is fighting for a chance to prove his innocence, and no more years of waiting and wasting his life away for something he did not do.
Failure to Challenge False Testimony
"I remember that there was testimony at trial from Vanessa Smith, the girlfriend. I did not think that Vanessa Smith was completely believable. She got off easy because she turned State's evidence and testified against Scott Allen. I remember that she testified without anyone really challenging her or questioning her true involvement in the death of Chris Gailey. I still don't know if the crime happened the way she said it happened or not"
-Affidavit Alternate juror March 2013
The State's case relied almost entirely on the testimony of Scott's vengeful ex-girlfriend Vanessa Smith. Without Smith's testimony, the entire case falls apart. As we've already seen, this was a woman with a documented history of substance abuse, mental health issues and manipulative and exploitative behaviour.
The physical evidence at the crime scene, taken together with other facts and information readily available to the prosecution, make it compellingly obvious that Vanessa Smith concocted her story to get back at Allen for leaving her for another woman.
The prosecution knowingly used false and misleading evidence against Scott Allen to obtain a conviction for capital murder. The State solicited perjured testimony and argued it to the jury. They made no attempt to correct the testimony of Vanessa Smith (among others), even though it is the duty of the State to prevent perjury and to ensure a fair trial.
Whilst this is bad enough and grounds for a new trial in itself- when the prosecution presented the above to the jury defense counsel failed to challenge it.
They never questioned her about the alleged murder weapon being found back at the trailer, not buried in the woods as she said. They never questioned her about her claims that Gailey survived for hours longer than the State Medical Examiner said he could possibly have. They never questioned her on her assertion that they were going to collect guns to sell for cash to get cocaine, when in fact over $1900 in cash was found at the scene.
They never once brought up the verified letter from Vanessa to Scott pre-trial that stated 'we are innocent of this'
They never questioned her about how her testimony contradicts the crime scene evidence on almost every point.
What defense counsel did attempt to do was challenge Vanessa Smith's credibility. However, they were prevented from even doing that effectively by the trial judge's refusal to disclose medical records that fully detailed the extent of her mental illness and substance abuse.
Defense counsel questioned Vanessa Smith in depth about her drug use, but never challenged her story of being in the woods all night, when the supposedly corroborating testimony from Robert Johnson was that she was gone for three to four hours. Their failure to fully investigate also prevented them from calling a key witness that could have shown both Vanessa Smith and Robert Johnson's testimony to be false.
Failure to Investigate & Call Key Witnesses
"During the testimony that I heard, Vanessa lied abut coming back to the trailer, stealing the truck, and being scared for her life. If I had been called to testify at the trial, I would have testified to what really happened that night at the trailer. At the time when Vanessa claimed that Chris was shot, Vanessa was actually at the trailer."
- Affidavit of Tanzy Lanier- May 2007
For no discernible reason (other than incompetence) the defense failed to call witnesses that would have discredited Vanessa Smith's story even further and necessarily given the jury reasonable doubt as to the State's version of events.
Defense counsel only interviewed the individuals present at the trailer on the night in question once, and then simply relied on police reports obtained whilst the individuals in question had been charged with various crimes and were under extreme pressure and scrutiny from law enforcement. At the very least, both Shannon Diehl and Danny Lanier could have testified that Vanessa's story of spending all night in the forest was an utter fabrication.
More importantly, if they had done their job properly, they would surely have known that Tanzy Lanier, the only sober member of the household with any credible version of events on the night of the shooting, knew, and would have testified that there was no possibility that Vanessa Smith witnessed the events that she described to the jury.
Calling Tanzy Lanier to testify would have easily impeached Robert Johnson's testimony that the prosecution relied upon (although totally contradicting Vanessa's testimony in itself) to suggest that it would have been possible for Vanessa Smith to have been at the location where and when she said the shooting took place.
According to Tanzy Lanier, Robert Johnson was passed out drunk on the floor when Vanessa returned to the trailer. The fact is Vanessa simply did not have time to travel to the scene and back and witness what she said she did.
Defense counsel's failure to explore and present this information to the jury critically affected the case and falls well below the standard expected of competent counsel.
Dolly Ponds, who was incarcerated with Vanessa pre-trial, would have testified (as shown in her affidavit here) that Vanessa had told her a completely different story than that she'd related to the police- in this version Gailey was hit and/or shot in the head, he was shot after getting out of a truck, not during a hike, he was shot because he wouldn't give her and Scott money for drugs and so on.
Troy Spencer, who lived with Vanessa after her release, delivered a letter to defense counsel prior to trial detailing yet another conflicting account from Vanessa as to what happened in the woods; even claiming it was she and not Scott that committed the murder. If defense counsel had bothered to follow this up he would have demonstrated to the jury yet again that her word was not to be trusted, and that her version of events constantly changed depending on her audience and her own needs. As Troy Spencer stated in his 2007 affidavit, he delivered this letter to Scott's attorney himself, but never heard back from him.
Christina Fowler Chamberlain, had she been called to testify, along with another witness, Joe Loflin, would have told the jury that Scott spent the night in question at her house, rather than in the Uwharrie forest allegedly throwing rocks.
Apart from the above testimony that was absolutely critical for the jury to hear in order to fully appreciate just how unreliable Vanessa Smith was and how what they heard from her could not possibly be true, defence counsel also failed to call witnesses to testify that would have shown just how angry, vengeful and jealous Vanessa Smith was at the point she implicated Scott for this crime.
Joyce Allen- Scott's ex-wife, Larry Smith-Vanessa's ex-husband, Lois Lawson- Joyce's sister and Kelly Racobs- Scott's new girlfriend, could all have testified about how angry Vanessa was when she learned that Scott had gone back to Denver to see Kelly. Among the statements in their affidavits Vanessa was "furious at Scott", "obsessed with him", threatened to "make his life miserable", and tellingly told Kelly Racobs that "You'll never get to have him" and "I will do whatever it takes to keep him away from you"
Furthermore, Lois Lawson could also have told the jury about another individual who was armed, angry and out looking for trouble with both Scott and Chris Gailey on the night of the murder: her then-husband Jamie Fender.
It is beyond belief that trial counsel would not have presented this to the jury. The failure of Scott's trial counsel to call these witnesses above falls well below the standard for competent counsel and necessarily entitles him to a new trial.
Failure to Cross Examine State Witnesses
"The cross-examination of prosecution witnesses fell far below the standard for effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendment to the United States
Constitution and Article I Of the North Carolina Constitution.
The credibility and memory of most of the State′s witnesses were not tested at all through cross-examination, resulting in the admission of materially false and misleading evidence throughout
the guilt-innocence phase of the trial"
- 2007 Motion For Appropriate Relief Claim III
How do you provide a quotation to prove something's missing? That's exactly the point here. Despite the obvious fallibility of the State's witnesses and overall case, Scott's trial counsel continually failed to probe the inconsistencies and blatant lies that were presented to the jury.
Despite the fact that the testimony of Vanessa Smith- the alleged 'eyewitness'- contradicts the crime scene evidence in almost every way (see here), trial counsel did not cross examine her on any of these discrepancies. They also completely failed to fully expose her lack of credibility, as we saw here.
Not only did they fail to call their own, readily available witnesses to refute Vanessa's story; either through carelessness, or lack of preparation they also shamefully neglected to expose to the jury all the holes in the State's case by failing to properly cross examine a number of other witnesses called by the State at trial.
Wesley Hopkins, the prosecution's first witness, was not even interviewed by defence counsel prior to trial and they did not cross examine him at trial. This lack of preparation, coupled with the failure to adequately investigate the crime scene meant that the jury never heard about the lack of blood at the scene, the fact that the body was in a different position and location to that shown in the crime scene photographs, that there was another witness present when the body was discovered, that his vehicle could have altered the positioning of rocks at the scene, and other contradictions to the State's version of events.
Defense counsel also failed to cross-examine Lt Barry Bunting on the inconsistencies above, or furthermore the neatly draped shirt, the bloody knife, the spilled handgun rounds 13 feet away from the body or the jammed handgun found on the scene. He was never asked to explain about the large amount of cash found at the scene that completely contradicts the prosecution's theory that the murder was committed for financial gain.
Another prosecution witness that defense failed miserably to cross-examine effectively was Jeffrey Page. He testified that Scott had apparently and completely implausibly confided to him that he had 'shot a fellow in the forest'
While the jury had been made cursorily aware that there was an agreement in place between Page and the State; that his charge for Accessory After The Fact to Murder would be dropped in exchange for his testimony, defense counsel completely failed to cross-examine Page to show the jury just how interested he was in this trial's outcome. The jury did not hear that he was facing a minimum of 44 months in prison if convicted. They also never heard that he'd already been charged before coming forward with Scott's supposed 'confession.'
What the jury also never got to hear, since defense counsel never showed it, was just how threadbare Page's credibility was by their failing to cross-examine him about his prior criminal record, expose his perjury when asked about that record by the prosecution, or fully explore the fact that he'd already changed his statement twice, adding convenient details as he went.
Had the jury heard all this, it is highly unlikely they'd have given much credence to this story that Scott had freely confessed murder to a man he barely knew.
The only witness called to testify that could corroborate even the smallest parts of Vanessa's story of the actual night of the shooting was feebly cross-examined about life at the trailer and Chris Gailey's ownership of firearms, but little else.
Unbelievably, defense counsel completely failed to cross-examine Robert Johnson about the fact that he was passed out drunk on the floor of the trailer when Vanessa returned, and remained so until quite some time later.
They also failed to question him about the extreme pressure he and the other residents at the trailer were put under by the police investigation. The jury never got to hear about the fact that he and two others had been charged with a number of crimes, or his 'understanding' that co-operating 'might look good.'
They also didn't ask him about witnessing Gailey leaving the trailer with his handgun, but Scott and Vanessa leaving unarmed. They didn't ask him about the alleged murder weapon being found in his closet. They didn't ask him about his statement that Dustin Maness was camping in the forest on the night of the murder and the fact that Maness and Gailey had had a violent argument in his home and never patched it up. They didn't ask him about Maness telling him afterwards that Gailey 'deserved it.'
The jury simply was not given the opportunity to fully consider the truth hiding in plain sight behind these witnesses' testimony because defense counsel did not even attempt to show it to them.
Failure to Investigate the Crime Scene
"I do not recall having the impeachment information set forth in Allen's Claim III, nor the resources to interview and investigate every witness called by the State. We did not have a crime scene analyst to assist our understanding of the crime scene, or to help us use that information to impeach Ms. Smith's story of the crime."
- Affidavit, Pierre Oldham
As shown above, trial counsel not only failed to interview key witnesses, follow up on evidence pointing to a third party, or challenge obviously false testimony; they completely disregarded their duty to adequately investigate the crime scene.
It should have been obvious to any reasonably competent counsel that Vanessa's story was wildly inconsistent with the crime scene evidence, even as presented without any expert analysis. Yet they chose, for no discernible reason, not to employ a crime scene expert to help them understand how to challenge these inconsistencies.
Having done so would have at least given them the information (if not necessarily the competence) to mount an effective challenge to false testimony and an effective cross-examination of State witnesses, rather than the shambles shown above. This lack of thoroughness in preparation rendered any decision made on how to cross-examine the State's witnesses completely uninformed and therefore completely ineffective.
As McCrary states in his report, and as they would have been able to show to the jury had they properly investigated the crime scene "the totality of the evidence at the scene .. significantly contradicts and discredits Ms Smith's story"
Had they employed a crime scene expert they could have and should have been asking the following in front of the jury:
How do you explain the fact that the supposed murder weapon was found in its usual keeping place in Robert Johnsons closet? Why was this weapon never tested for residue? Considering no ballistic testing was carried out, how do we even know whether the spent shells were all fired from the same gun?
What about the lack of blood both at the scene and in the victim's body that points to the shooting occurring elsewhere? Did law enforcement even search the surrounding area for any other evidence?
What about the large amount of cash found at the scene that completely contradicts the theory of murder for financial gain, and the supposed motive for going into the forest in the first place?
Wouldn't the spent casing and jammed round found in Gailey's hand gun, the scattered loose handgun rounds and the five spent and numerous live shotgun shells strewn around the crime scene indicate a brawl or moving gun fight between at least two shooters, rather than an execution style killing as described by Vanessa Smith?
What about the bloody knife? Whose blood was it? Had anybody associated in any way reported for treatment with lacerations or knife injuries? Why was this never followed up?
Why we are even coming to trial considering there are no fingerprints, DNA, blood, hair or anything else at all linking Scott to the crime scene?
How could law enforcement and prosecution ignore all the above and not investigate into any other, far more plausible possibilities, especially considering reports of other parties that had both means and motive in the area at the time?
The answers to these questions, taken together with the testimony of the witnesses discussed above that the defense counsel neglected to call would have completely derailed the State's case.
Furthermore, the testimony at trial of an expert crime scene analyst would have helped the jury to understand the physical evidence and how it contradicted the testimony of the prosecution's witnesses.
It would have made clear to the jury that Vanessa Smith was ether lying about what she saw, or was not present at the shooting at all.
Failure to Follow Instruction
" ... a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued... A lawyer shall abide by a client's decision whether to settle a matter. "
- American Bar Association Model Rules of Professional Conduct Rule 1.2: Scope of Representation & Allocation of Authority Between Client & Lawyer
To the extent consistent with the lawyer’s other legal duties and subject to the other provisions of this Restatement, a lawyer must, in matters within the scope of the representation:
proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation;
- Restatement of the Law Governing Lawyers §16. A Lawyer's Duties to a Client –In General
A lawyer must keep a client reasonably informed about the matter and must consult with a client to a reasonable extent concerning decisions to be made by the lawyer under §§21-23.
A lawyer must promptly comply with a client’s reasonable request for information.
- Restatement of the Law Governing Lawyers §20. A Lawyer's Duty to Inform and Consult with a Client
Bearing in mind that a large part of the reason Scott has ended up in this dire situation is down to the failings of the lawyers appointed to represent him at trial, a large part of his appeal rests on revealing just how remiss and ineffective they were to the appeal courts.
You would hope that post conviction counsel appointed to Scott would make every effort to do so in a thorough and diligent manner, in the best interests of their client.
In February 2018 an Evidentiary Hearing was held in which Scott's post conviction counsel interviewed both of Scott trial counsel on varies matters outlined above. During the hearing, Scott's lead trial counsel Will Atkinson related that he knew of Scott's alibi (Christina Fowler Chamberlain) for the night in question, and that he knew of the letter from Vanessa to Scott that stated they were innocent, but that he didn't bring it up at trial, even though he could have done.
For some unknown reason, the brief submitted by post-conviction counsel after this hearing completely failed to mention these crucial details. Not only that, despite Scott's repeated instruction that this brief was not to be submitted with out his approval, it was submitted without Scott having even seen it. A similar thing happened with the brief submitted to the Supreme Court, which has since has been argued in front of the court without Scott even knowing about it.
This breakdown in communication, confidence and trust reached the point of impasse and in desperation Scott got up in court to try and explain how he's being disregarded and kept in the dark and ask to have new counsel appointed that will actually help him. With no success: he is still stuck in limbo without lawyers he can trust.
What Scott's lawyers, whether down to incomprehension or wilful ignorance, do not seem to want to do is pursue his true intent. Scott is not seeking 'relief' that would leave him to rot in prison for the rest of his life for something he did not do. He does not want them to 'save his life'- he wants nothing short of a new trial and the chance to prove what he has been saying all along- he is innocent of this.