Tiredness kills, so the motorway signs say. In certain criminal trials in the USA, tiredness can also prove fatal. When Kenneth Fults stood trial for murder in the state of Georgia in 1996, his state-appointed attorney Johnny Mostiler was seen to fall asleep on numerous occasions in the courtroom. One of the jurors later said this in a sworn affidavit:
"It was clear to me during Mr Fults's trial that his lawyer, Mr Mostiler, did not provide any real representation of him. He just didn't really do anything at all, and several times I saw him sleeping during the trial. His head would be bowed down and he wasn't doing anything like writing. In fact, I never saw him write anything down or take any kind of notes. I was not surprised by Mostiler sleeping, because I also sat on another jury where Mostiler was the defense lawyer and I saw him sleeping during that trial too."
Another of the former jurors said largely the same thing:
"Mr Fults's lawyer, Mr Mostiler, did not seem to care about Mr Fults or his case ... He was uninterested in what was happening, and it seemed like something was wrong with him. I saw him fall asleep repeatedly during the trial, and he would wake up, startled, when it was his turn to examine witnesses. I saw him sleeping off and on throughout the whole trial. It really bothered me because here there was a man on trial for his life and his lawyer didn't even care enough to stay awake, much less properly cross-examine the witnesses ...".
Yet, all these years later, Fults - who was found guilty and sentenced to death - is now set to be executed in Georgia lethal chamber. His execution is set for this coming Tuesday.
But sleeping on the job isn't even the half of it. Fults, an African American man, was found guilty of the murder of a white woman called Cathy Bounds. In Georgia, a deep South state with a long history of racism, one where the Ku Klux Klan is still extremely active, this ought to have rung alarm bells. Instead, the jury included at least one member who later gloatingly said:
"I don't know if he ever killed anybody, but that nigger got just what should have happened. Once he pled guilty, I knew I would vote for the death penalty because that's what the nigger deserved."
And not only that, there are even reports that Fults' own attorney Johnny Mostiler, who is now deceased, was also a frequent user of the N-word.
Meanwhile, as with so many capital trials in the USA, especially where people from deprived socio-economic backgrounds are on trial, Fults' lawyer seems to have made only a token effort to present the full circumstances of his client's case. Once again former jurors complained about the conduct of the defence case. Mostiler hadn't told them about how Fults' childhood was scarred by neglect and abandonment, having been born to a 16-year-old mother who later became addicted to crack cocaine. And they didn't hear that Tufts grew up with an intellectual disability (he's been assessed as having an IQ of only 72).
Yet in the long run none of this has mattered. The execution juggernaut has been set rolling, and it's very hard to stop it. Despite the patent unjustness of his conviction, Tufts' appeals have either failed on "procedural" grounds or because of an institutional reluctance on the part of federal courts to rule against state-level courts. As the campaigner Helen Prejean has long noted, 95% of justice in US death penalty cases occurs at the original trial, badly conducted or not. Lose that and doors start closing rapidly. Tufts may die next week because of the scandalous rigidity of a US justice system that is often incapable of righting a blatant wrong.
It's a dreadful miscarriage of justice, but some observers will insist that the iniquity of Kenneth Fults' case is rare and claim that a "reformed" justice system can safely operate capital trials in the USA. To this I'd say: stop dreaming. One hundred and fifty-six people have been exonerated from various death row facilities in the USA in the past four decades. And these are just the ones we know about. How many other victims of miscarriages went to their deaths?
Serious crimes deserve serious sentences, but the premeditated cruelty of the death penalty is not the answer. Capital punishment has no proven deterrence value, it's prone to terrible error, it's often (as in Fults' case) applied following shoddy trials and sometimes in blatantly political ways, it's irreversible if implemented, and it inflicts mental torment on the condemned as well as physical torment in the - not-infrequent - event of the actual execution being botched. The USA executed 28 people last year, fewer than at any time in a quarter of century. It's the right direction of travel, but we need to see the USA getting to a point of arrival (abolition, in line with a majority of the world) far quicker. Like tiredness, speed kills on motorways; but it's the slow pace of change on the death penalty in the USA that's still killing people like Kenneth Fults.
*Amnesty has just published new figures for the death penalty in 2015 showing a "profoundly disturbing" 54% increase in executions compared to the previous year
*Amnesty's new appeal for Kenneth Fults is here