A man convicted and sentenced to death twice for a 1982 murder will get a third try to prove his innocence.
A judge set an Oct. 18 trial date for James T. Fisher Jr. Fisher was first convicted and given a sentence of death in 1983 for killing Terry Gene Neal at a northwest Oklahoma City apartment.
Nearly two decades went by before a federal appeals court found Fisher was given inadequate attorney representation and sent the case back to trial.
But Fisher found himself reliving the nightmare. At his second trial in 2005, Fisher again was convicted of first-degree murder and sentenced to death. Then last year, the Oklahoma Court of Criminal Appeals reversed the conviction and sentence. Again, for the same reason as the first reversal, because of inadequate defense attorney work.
During the first trial in 1983, Fisher was assigned Melvin Porter as his counsel. Porter, a state senator at the time, was well-known for his involvement with Oklahoma civil rights issues. But Porter had a problem with Fisher’s gay lifestyle and was reluctant to properly defend his client, as he admitted in a 1996 affidavit.
Porter called only one witness during the trial, and none during the sentencing phase.
For the second trial, well-known defense attorney John Albert was assigned the task of defending Fisher.
But Albert was in the midst of a substance abuse problem and failed to properly investigate Fisher’s case. The attorney and client were antagonistic toward each other, with Fisher refusing to even attend the trial because of his hatred toward Albert. (After successfully completing a drug rehab program, Albert retained his law license.)
Perry Hudson is now representing Fisher, but his concerns about the case go beyond relationships into an area he considers to be “exceptionally hard.”
“I’ve done a couple of these old cases, and I know how difficult it is, especially if it remains a death penalty case, how hard is it to dig up old records to see if my guy had any mental health issues, to see if he was abused or neglected?” Hudson said.
“He ends up in the child welfare system in New York, so you can imagine what the record gathering will be like.”
Hudson’s familiarity with old murder cases comes from his involvement with Curtis Edward McCarty. Convicted of murder in 1986, McCarty spent nearly two decades on death row before the case was finally dismissed in 2007. In McCarty’s case, proof of tainted evidence was too much for a judge to overlook and concluded there was no way to give the defendant a fair trial.
Oklahoma County First Assistant District Attorney Scott Rowland agreed the passage of time doesn’t help, but reiterated the Fisher case was tried for a second time just a few years ago, and that much of it remains intact. Rowland said at this point, the case will remain a death penalty trial.
Meanwhile, Hudson has other concerns about the Fisher case.
“More importantly to me, are we going to be able to find the witnesses? I know for a fact there are at least three people who can provide for my guy what I believe to be an alibi that they saw him at the bus station the night this crime occurred. They may be dead for all I know or awfully hard to find, and if I do find them, will they remember anything?
“They didn’t witness a murder, they just saw a guy 25 years ago at a bus station in Oklahoma City.”
Hudson said he is also at a disadvantage to the prosecution if witnesses can’t be found.
“The difference is if (prosecutors) can’t find people, they will argue they should be allowed to introduce previous testimony. If we can’t find people, we’re kind of just screwed because the reason this case has been reversed twice is because the defense attorneys didn’t do what they were supposed to do, so we are not going to have what we need in previous trials.”
However, Hudson believes there is a good chance the trial will never occur, and the two sides may reach a deal.
“I want to explore every possible resolution for my client that would preclude him facing the death penalty again. A plea negotiation is the one way we could ensure he is not in front of the jury again and arguing for his life,” he said. “We are going to explore any possibility, including a plea negotiation. We are going to ask the state’s attorneys to be very fair in reviewing this case regarding plea negotiations.”