When a Lawyer’s Conflict Can Be Fatal

“A deeply troubling truth about the death penalty is that it is often handed down not to people who commit the worst crimes, but on those assigned the worst lawyer to represent them.” – Steve Bright, Former President of the Southern Center for Human Rights

Southern Center for Human Rights client Nicholas (Nick) Acklin’s case is now up for review at the United States Supreme Court. His story serves as a clear and tragic reminder that bad or conflicted lawyering can be potentially fatal.

Days after Nick was arrested, in September of 1996, his mother Velma Acklin Evans contacted a Huntsville, Alabama attorney named Behrouz Rahmati. Rahmati agreed to represent Nick, and Velma agreed to a $25,000 retainer and a fee of $150 per hour. When it became clear that she would not be able to afford the costs, Rahmati contacted Nick’s father, Theodis Acklin, for help. Theodis became the attorney’s primary source of funds.

Just two days before Nick went to trial, Velma met with Rahmati alone. She shared with him that Theodis had routinely abused her and their children; they endured frequent beatings, emotional abuse, and threats at gunpoint. In one such incident, she fell out of a second-story window while fighting with Theodis over a rifle.

Years later, all of this abuse was corroborated. Nick’s brother testified that his father would come into a room when the siblings were all together, strike them with a belt, and “have the gun in hand and tell us he will kill all of us and kill himself.” This abuse was confirmed by the Alabama Department of Human Resources, which had investigated an incident in which Theodis had admitted to pulling a gun on his sons and stating, “I brought you into the world and I can take you out.”

Rahmati was aware of how powerfully persuasive mitigating evidence can be to both juries and judges. He was aware that the evidence of Theodis’s abuse could mean the difference between life and death for his client. But when Rahmati asked Theodis if he would be willing to testify in court about this abuse, Theodis angrily refused. “You tell Nick if he wants to go down this road, I’m done with him” and “done with helping with this case,” he told Rahmati.

Because Theodis was the only person paying him, Rahmati acquiesced. He did not investigate the matter any further. He did not ask the court for a continuance. And, crucially, he did not inform the court or his client about the conflict. What he did do, within just 36 hours of learning about the abuse, was to sit Nick down and have him sign a document stating that he did not want the evidence of abuse presented at trial.

This meant that instead of hearing this crucial mitigating evidence, Nick’s jury heard falsehoods. At the penalty phase, Theodis was put on the stand. He testified — falsely — to the jury that Nick was raised in a loving and safe home. He told the jury that his son sang in the church choir. He talked about taking his son to the dentist and parent-teacher conferences. If anything, he testified, he was “overprotective” of Nick. Two weeks later, at a judicial sentencing proceeding before the judge, Theodis again testified falsely, telling the judge that Nick was “raised in a Christian home” with “good values” but “somehow slipped.”

The jury voted 10-2 for death – the minimum number of votes required for a death recommendation under Alabama law.

When the judge imposed a death sentence on Nick, he expressly relied on Theodis’s testimony, specifying that Nick had not experienced physical abuse (which he had) and that he was not the product of a dysfunctional household (which he was). “Most killers are typically the products of poverty, a dysfunctional family, physical or sexual abuse and/or social deprivation,” the Court wrote. “Acklin was the product of a loving middle-class family.”

As Andrew Cohen writes for The Marshall Project, “Acklin, like all criminal defendants, had a constitutional right to an attorney who does not have an ‘actual conflict of interest.’ And there is plenty of legal precedent, as well as state and national bar association ethical rules, that reasonably label what happened between the lawyer and the client here as an ‘actual conflict.’”

In an amicus brief in support of Nick, legal ethicists say that the situation “created a textbook division of loyalties” for Rahmati. They urge the Supreme Court to accept Nick’s petition, because “[u]nder ethics norms and rules of professional responsibility applicable across every jurisdiction, Nicholas Acklin’s trial attorney labored under an acute and obvious conflict of interest that resulted in a denial of Acklin’s Sixth Amendment rights.”

What is clear is that Nick Acklin was convicted and sentenced to death based on a foundational misunderstanding of the facts on the part of both the jury and the judge. At every turn, his attorney sought to serve his own financial self-interest instead of the needs of his client. Nick, like every defendant, has a constitutional right to representation from a lawyer whose judgment is objective, and not tainted by the demands of anyone else. This critically important constitutional principle applies with even greater force in a case where a death sentence is possible.

Southern Center for Human Rights represents Nick Acklin, along with co-counsel Don Verrilli and Dahlia Mignouna.

Read more about Nick’s case here.