“There’s definitely a level of discomfort on my side about this,” Porter said. “We don’t have any issue with the Supreme Court validating the judge’s decision.”
Moss is not preparing her defense in any conventional sense – researching the law, filing motions, reviewing evidence and the like. At a recent court hearing, she said she is readying herself “in a more spiritual way than, you know, a physical way.”
Moss is accused of starving 10-year-old Emani Moss to death and then burning her body in 2013. Emani weighed only 32 pounds when her body was found in a dumpster outside the apartment where she lived with her father, Eman Moss, and her stepmother.
As the 35-year-old Moss awaited trial, she decided to rely on divine guidance from above rather than the guiding hand of legal counsel. Moss turned down the assistance of lawyers from the state capital defender's office, which has not had a client sentenced to death in more than four years.
Capital defendants representing themselves are not unheard of in Georgia. In 2015, Jamie Hood, serving as his own lawyer, was convicted of the murder of an Athens-Clarke County police officer. But the jury declined to impose a death sentence, and Hood was sentenced to life in prison without the possibility of parole.
In that case, Hood actively defended himself, Porter said. Conversely, Moss is extremely passive about her defense, he said.
“Sometimes it’s like looking at a blank wall,” the DA said.
After Moss chose to represent herself, the state sought to admit hearsay testimony from Moss’s son at trial. At a hearing, Moss asked Superior Court Judge George Hutchinson III not to allow it. This prompted the judge to ask her to give him a legal basis for her objection.
“Legal basis,” Moss said. “I don’t know.”
The right to legal counsel is part of the bedrock of the U.S. justice system. But the right to represent oneself is equally sacrosanct, said Atlanta defense attorney Don Samuel, who’s authored books on criminal case law. Before it’s allowed, however, a judge must determine if the defendant is competent enough to understand and participate in the court proceedings.
“Anyone would say it’s a terrible decision, the one she’s making,” Samuel said. “If she gets up there and says, ‘I’m leaving it up to God,’ I guess there could be come jurors who might think she doesn’t deserve to die. But as a lawyer, my response is that she could be walking herself into a death sentence.”
Moss was initially provided two lawyers from the state public defender’s system. But last November, she notified the court she wanted to represent herself.
Hutchinson, after quickly convening a hearing, asked her why. The capital defenders, Moss said, were recommending that she accept the prosecution’s offer to plead guilty in exchange for a sentence of life in prison without parole.
“I had already expressed that I did not wish to (plead guilty), which led me to further come to the conclusion that it would be in my best interest to represent myself,” she explained.
Prosecutors had also sought the death penalty against Moss's husband. But Eman Moss pleaded guilty to his role in Emani's death. After agreeing to testify against his wife, Eman Moss received a sentence of life without parole.
Tiffany Moss’s trial had been scheduled to begin July 23. But during recent court hearings, Moss admitted that she has neither visited the jail’s law library nor looked through the five boxes of discovery documents turned over to her by the prosecution. And she acknowledged missing the deadline to submit a list of witnesses or experts she plans to call in her defense.
After hearing this, Hutchinson decided to give the state Supreme Court a chance to weigh in on the unusual proceeding.
The state high court is being asked to consider: Did Hutchinson make a mistake when he decided Moss knowingly, intelligently and voluntarily waived her right to counsel and is able to represent herself? Also, did the judge rely on an inadequate evaluation of Moss conducted by state behavioral psychologists when arriving at that decision?
Hutchinson has allowed capital defenders Brad Gardner and Emily Gilbert to stay on the case as “standby counsel,” meaning they can assist Moss with her defense if she asks for help. They are also pursuing the pretrial appeal.
At hearings, Hutchinson has repeatedly warned Moss about the perils of representing herself.
Last month, he told her he hired a lawyer for his daughter when she received a traffic ticket a few years ago. Even in such an “arguably trivial matter,” it was important for his daughter to have counsel.
Hutchinson then told Moss, “They are seeking to have you executed, and I can’t be more blunt than to say they are trying to have you killed. That’s just as serious as it can possibly get and I think it’s best that you have an attorney.”
Will you reconsider your decision? the judge asked.
“I’m confident in my decision and I’m standing by it,” she said. “I do wish to represent myself.”
Hutchinson, a former prosecutor, then tried to make sure Moss had all the resources she needed.
“Is there anything you need from the court — any additional orders or efforts on my part that would assist you in your preparation for trial?” he asked.
“Pencils,” Moss replied.
“You need pencils?” the incredulous judge asked.
“I need pencils, yes,” Moss said.
Hutchinson said he doubted the sheriff’s office wants any of its inmates at the jail to have sharp objects. But he said he’d make sure some writing instruments were made available to her.
“Anything else?” he asked one last time.
“That’s all I can think of right now, your honor,” she said.