GIP has been working on Paul Tyner since 2003. In fact, he is case number 183. During our investigation we realized that he had been waiting for an appeal since 1981!! And this is not the only time we’ve discovered a person waiting decades for his appeal. It’s always shocking.

We are so pleased that Paul finally had a chance to expose what happened in his trial. Special thanks to the public defenders who handled this case: Bentley Adams of the Chattahoochee Circuit Public Defenders Office who successfully argued the Motion for New Trial and Jim Bonner of the Georgia Public Defender Council who did such an amazing job on the appeal.

Below is the Daily Report article about the case.

To read the appeal: https://efast.gaappeals.us/download?filingId=108db227-07f0-4506-95ed-658b58a69069

Appeals Court Tosses 34-Year-Old Rape Convictions

Alyson M. Palmer, Daily Report

December 8, 2015

It was September 1981. Ronald Reagan had been president for less than a year. Warren Burger was chief justice of the United States. And in Columbus, a prosecutor had just finished his closing argument in a trial against Paul Tyner, accused of rape.

Tyner’s lawyer told Judge John Land that Tyner had decided to represent himself from that point on. Land allowed the move, after advising Tyner of the importance of the rest of the trial and warning him that he would be subject to the same rules for closing argument as a lawyer. But, as recounted in a Court of Appeals ruling issued 34 years later, Tyner repeatedly violated the judge’s instructions and soon wanted to give up. “Is it OK that the lawyer just go on and argue, because I don’t quite understand where you are coming from,” Tyner said. “It would be all right with me if the lawyer … would just take over from here, because … I keep making these mistakes.”

The judge denied Tyner’s request, saying the defense was entitled to only one argument. “I can’t let you toy with the court,” Land said.

Tyner completed his argument on his own. The jury found him guilty of all charges: two counts of rape, two counts of aggravated sodomy and two counts of burglary. The judge proceeded immediately to a sentencing hearing, at which Tyner offered no evidence or argument. Expressing regret that the U.S. Supreme Court had “made a mistake when [it] abolished the death penalty” for rape cases, the trial judge sentenced Tyner to life in prison.

But last month the state Court of Appeals, in a 5-2 decision, said Tyner was entitled to a new trial because the judge—who died in 2011—should have let Tyner re-engage his lawyer.

Prosecutors had contended that, even if the trial judge had erred, the defendant’s convictions should not be reversed as it was unlikely that the defendant’s handling of his case affected the result of the trial. But the majority ruling issued on Nov. 20 said the trial judge’s decision was such a significant violation of the defendant’s Sixth Amendment right to counsel that reversal was required.

The ruling sends the case back to Columbus for a possible retrial of Tyner, now in his late 50s. District Attorney Julia Slater, who hadn’t yet finished high school when Tyner was convicted, could not be reached to discuss her next move.

The hardest part of winning relief for Tyner, according James Bonner of the Georgia Public Defender Standards Council, who handled Tyner’s case at the Court of Appeals, was persuading a judge to allow an appeal more than 30 years after the usual deadline.

That was achieved by Bentley Adams III of the Columbus public defender’s office, where Tyner’s court-appointed trial counsel, Richard Zimmerman, is still practicing.

Adams said Tyner was appointed an appellate lawyer shortly after the trial. That lawyer filed a motion for new trial, which was denied by Land, Adams said. Tyner contended that he told the appointed appellate counsel that he wanted to appeal, but the lawyer told him he was appointed only to handle the motion for new trial, Adams said.

At one point, according to Bonner, Tyner filed a notice of appeal pro se. “He attempted to intiate an appeal, but for obscure reasons it was frustrated and it never happened,” Bonner said.

Adams said the Georgia Innocence Project in 2013 brought the case to the attention of the PD’s office, which was established long after the trial.

In February 2014, Superior Court Judge William Rumer granted Tyner permission to file a late appeal. According to Adams, Rumer based his decision on a lack of a record as to why Tyner hadn’t received his appeal, meaning there was no record of a waiver by Tyner as to his right to appeal.

Once the appeal was reinstated, said Bonner, it had great facts to make an argument for reversal: A defendant who isn’t warned of the dangers of representing himself encounters those dangers, then tries to back out of proceeding pro se. “You just couldn’t make this up,” Bonner said.

Representing Tyner on appeal, Bonner argued that Tyner had not waived his right to counsel at trial, because the trial judge hadn’t properly warned him of the dangers of representing himself. The appeal also contended that the trial judge had erred in requiring Tyner to represent himself during the remainder of the trial after he told the judge he wanted his lawyer to step back in.

The case initially was assigned to Judges John Ellington, Stephen Dillard and Christopher McFadden. When those judges couldn’t agree, four additional judges were brought in to consider the matter, per the court’s rules.

McFadden, along with Judges Anne Elizabeth Barnes, Herbert Phipps and Carla Wong McMillian, joined Ellington’s majority opinion reversing the convictions. Judge William Ray II joined a dissent penned by Dillard.

The court skipped over the question of whether Tyner had properly waived his right to counsel in the first place, deciding the case based on the trial judge’s refusal to let him change his mind about self-representation. Ellington acknowledged case law that says that, once a defendant has properly waived his right to counsel, that right is no longer “absolute.” But Ellington concluded that, under the circumstances, the trial judge’s insistence that Tyner continue pro se was unjustified.

“The record does not show that the request had any impact on the trial court’s ability to manage its docket or on its general responsibilities for the prudent administration of justice,” wrote Ellington. “Nor does the record show any significant disruption of the trial, given that only a few minutes had passed and that counsel had an argument prepared and was standing by and ready to proceed. The record does not show that the trial court weighed the negligible cost of granting Tyner’s request to withdraw his waiver of his right to counsel against any identified benefit of denying his request, other than preventing him from ‘toy[ing] with the court.'”

Closing argument, receipt of the verdict and sentencing are critical stages of a trial, wrote Ellington. Because denial of Tyner’s request for counsel was what is called a structural error, said Ellington, the appellate court was not allowed to consider whether it was a harmless error that didn’t affect the outcome of the case.

In dissent, Dillard said the trial judge had acted within his discretion. “Here, although Tyner’s post-waiver request for his counsel to resume representing him was unlikely to cause significant disruption of the trial, this court has previously held that a trial court’s refusal to countenance this type of hybrid representation does not constitute an abuse of discretion,” wrote Dillard. “Thus, because Tyner had already begun his closing argument, regardless of its efficacy, the trial court did not abuse its discretion by refusing to allow Tyner to withdraw his prior waiver of counsel.”

The case is Tyner v. State, No. A15A1342.