They have watched their former client sit silent throughout her death-penalty trial this week, doing nothing as she acts as her own lawyer. Now two capital public defenders are trying to take the case away from her if and when the jury decides whether she should be sentenced to death.
In a motion filed Thursday, defenders Brad Gardner and Emily Gilbert acknowledged that the right to self-representation is permitted during the guilt-innocence phase of a trial. But it doesn’t extend to the sentencing phase of a death-penalty trial, they said.
Their motion asks Gwinnett County Superior Court Judge George Hutchinson to reappoint them as Tiffany Moss’s lawyers if the jury finds her guilty. That way, they could represent her when the jury considers evidence and hears testimony in the penalty phase of the trial, expected next week.
During that proceeding, the jury would decide whether to sentence to life with the possibility of parole, life without parole or death by lethal injection.
“The jury will have nothing upon which to base a life sentence, not because Mrs. Moss wanted the death penalty, but because she was incapable of representing herself,” the motion filed by the defenders said.
“Society’s interest in justice is not served by such a one-sided and arbitrary proceeding.”
Gardner and Gilbert are members of the State Office of the Capital Defender. They were initially assigned to represent Moss, who is accused of starving to death her daughter Emani in the fall of 2013.
But Moss, saying she was putting her fate in God’s hands, decided she wanted to represent herself. Even though Gardner and Gilbert objected, Hutchinson determined that Moss is competent to stand trial and could represent herself.
That decision came after Moss and Gilbert filed a motion disclosing that Moss had previously suffered a brain injury.
Before the trial convened Thursday, District Attorney Danny Porter made note that Moss did not give an opening statement and did not ask questions to any of the prosecution witnesses.
For that reason, Porter said, he thought it was important to put on the record that Moss has been taking notes during testimony and has been attentive when witnesses are on the stand.
PHOTOS: Eman Moss Testifies
“I think in light of yesterday’s events it may be useful to confirm those events,” Porter told Hutchinson.
Hutchinson agreed with Porter’s assessment, saying he’s seen Moss being “actively engaged and attentive to the proceedings.”
He then asked Moss if she has access to the boxes of discovery material turned over by the state. “I do have access, your honor,” she said.
When Hutchinson asked Moss if there was anything she needed, she replied, “No, your honor.”
Gardner then addressed the court, telling Hutchinson that Moss has not reviewed the state’s evidence since it was given to her more than a year ago
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Eman Moss was at work when his wife called and said his 10-year-old daughter Emani was dead.
“She’s gone,” Tiffany Moss said.
When he got home, Eman Moss said, he found his daughter lying on a blanket on the floor of her bedroom.
“She was dead,” he said. “She was cold. Her essence wasn’t there. She was gone.”
Moss, wearing a green prison jump suit, his hands and legs shackled, was the state’s star witness Thursday in the death-penalty trial against his wife, Tiffany Moss.
She is charged with starving Emani to death in the fall of 2013 and then trying to conceal it.
Moss, who is representing herself, gave no opening statement and has asked no questions of prosecution witnesses.
Before court convened Thursday, lawyers from the state capital defender office who once represented her said they planned to file a court motion seeking to overturn a ruling that allows Moss to go it alone as her own lawyer.
In August 2015, Eman Moss, 35, pleaded guilty to his role in Emani’s death. He was sentenced to life in prison without the possibility of parole and agreed to testify against his wife.
On the stand, Moss, often in grotesque detail that clearly disturbed some members of the jury, described the final days of his daughter’s life and the harrowing aftermath when he and his wife tried to dispose of Emani’s body.
This occurred days after her death and days after her body had been placed in the computer room of the family’s apartment, wrapped in blankets.
At the time, Tiffany Moss was on probation for a child cruelty charge for severely beating Emani with a belt. She told her husband not to call 911 after her stepdaughter’s death.
“She wanted to hide it,” Eman Moss testified.
“Why did you agree to that?” District Attorney Danny Porter asked him.
“I was trying to fix the problem I couldn’t fix,” he said. “I can’t explain it.”
He also said he didn’t want to lose the two young children he’d had with Tiffany Moss.
Even so, Eman Moss said he continued his work routine, showing up at both of his jobs, then returning home and spending time with his dead daughter in the computer room, grieving.
Tiffany Moss recommended they bury Emani’s body, but Eman Moss said he didn’t want to do it. Instead, he went to a Home Depot and bought a galvanized trash can, trash bags, charcoal and lighter fluid.
Emani’s small body was already stiff from rigor mortis so the couple struggled to fit it into the trash can. They used duct tape to compress the body and Eman Moss said he heard cracking sounds.
Several jurors put their hands over their mouths as Eman Moss described the process. One juror covered his face with his hand.
Eman Moss said shortly after midnight, he, his wife and their two children drove to a secluded area off Satellite Boulevard. Emani’s body was in the back of his Chevy Trailblazer, along with the trash can and the other items he’d bought at Home Depot.
After he parked his truck and put the trash can on the ground, Eman Moss said, he poured charcoal briquettes into the can, sprinkled lighter fluid inside and lit it on fire with hopes of cremating Emani’s body.
After five minutes, however, he put the fire out after realizing Emani’s body was not going to be reduced to ashes.
Moss dropped his family off at home and then went to work the next morning, with Emani inside the trash can in the back of his truck, he said. Finally, when heading home, Eman Moss said, he called a friend and said he had to talk. They met at a QT when Moss disclosed what had happened.
Moss drove home and told his wife he was going to call 911, he said. Upon hearing that, Tiffany Moss took the kids and went to her mother’s house.
According to testimony, police soon arrived and arrested Eman Moss after finding his daughter inside the trash can on the curb of the apartment complex.
While her husband testified, Tiffany Moss looked up at her husband without any noticeable expression. Sometimes she jotted down notes after hearing what he’d just said.
When Porter told Superior Court Judge George Hutchinson he was finished, the judge then asked Tiffany Moss if she had questions for her husband.
As she has done now for the first 12 prosecution witnesses, Moss said she had no questions to ask.
The trial is on a lunch break. Testimony is expected to resume at 1:30 p.m. Please return to ajc.com for updates on this developing story.
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