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Death Row Prisoner Chad Fulks Loses Ineffective Counsel Appeal

By Robyn Hagan Cain on June 27, 2012 | Last updated on March 21, 2019

Chad Fulks pleaded guilty to kidnapping and killing 44-year-old Alice Donovan during a two-week crime spree after he and co-defendant Brandon Basham escaped from a Kentucky jail in 2002, reports The Herald Dispatch. Fulks has been on death row for years, and it seems unlikely that a court will step in to save him.

Tuesday, a Fourth Circuit Court of Appeals panel rejected Fulks' appeal that he was plagued by ineffective counsel during pleading and sentencing.

In March, the Supreme Court ruled that the right to effective counsel includes the right to representation during the plea bargaining process. Fulks’ case is distinguishable from the plea bargain cases because he was never offered a plea deal in exchange for his guilty plea. That, he claims, demonstrates that he had ineffective counsel.

Specifically, Fulks has criticized his attorney’s decision to have him give an inculpatory statement to the FBI with no prior stipulation of use or negotiated plea agreement in place. Fulks later entered a guilty plea, also without reservation, and he contends that the tactic unreasonably ceded valuable rights without any benefit.

While it’s unusual for a defendant to confess and plead guilty without any kind of deal, Fulks’ attorney had hoped that the plea would show the jury that Fulks had accepted responsibility for his actions. Fulks now claims that his attorney should have “deemed such hope forlorn, unlikely to carry any weight with the sentencing jury.”

In Fulks’ case, however, there was no deal to be made. Prosecutors wouldn’t play ball.

One of the prosecutors explained in a sworn statement that there was sufficient evidence implicating Fulks and Basham in two murders. The evidence was provided by members of the culprits’ entourage who accompanied them during portions of their escapades, police officers and ordinary citizens who encountered them along the way, and physical items such as surveillance videos and credit card records. Fulks’ guilt was not subject to any reasonable dispute.

Under Strickland v. Washington, a defendant seeking relief for ineffective counsel “must demonstrate both that counsel’s performance was deficient, and that the defense was thereby prejudiced.” There is a presumption that a defendant’s lawyer performed reasonably. Even if the defendant overcomes that presumption, he must demonstrate a reasonable probability that the result of the proceeding would have been different without the attorney’s mistakes.

Here, the Fourth Circuit Court of Appeals reasoned that Fulks’ attorneys employed reasonable litigation tactics, and that the outcome of the guilt phase would have been the same, even if Fulks had not cooperated.

Whether a defendant pleads guilty and accepts responsibility, or remains mum and allows the jury to do the hard work, a court is unlikely to overturn a conviction based on ineffective counsel issues when the evidence against the defendant is as compelling as it was in this case.

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