Cover
story RARE
BREED -- Death penalty lawyers defend rights of politically
invisible
By CLAIRE
SCHAEFFER-DUFFY
Bryan Stevenson graduated from Harvard University magna cum laude
with a bachelors in philosophy, got his masters in government,
picked up a law degree and then headed south to represent poor people. An
obviously talented attorney, he could be hauling in a six-digit income filing
briefs for corporate executives. Instead, for about $30,000 a year, he juggles
an overwhelming caseload of capital clients, defending those whom an entire
state is gearing up to kill.
In a country of 1 million attorneys, there are approximately 50
who work for private, nonprofit agencies specializing in capital
representation. Many work in states where political will for executions is high
and the commitment to public defender programs nonexistent. They defend the
innocent and the very guilty. They work hard to understand the lives of people
who take the lives of others.
They are deeply committed people who have chosen to make
their mark on this world, said Northwestern University law professor
Larry Marshall. They could have been priests. They could have been
rabbis.
Or rescue workers. One capital trial attorney, an expert in the
field, likened his work to the Underground Railroad. Were trying to
save people any way we can, he said. The analogy is too limited. Many of
these experts in capital defense do more than fight for the life of a
particular client. An extremely articulate bunch, they lecture, teach, write
and submit well-argued appeals for the rights of a politically invisible and
often despised populace. Sometimes their appeals are reviewed by the U.S.
Supreme Court.
Today death penalty lawyers are a rare though increasingly
much-needed breed. Greater restrictions on the law governing the filing of
habeas corpus petitions -- a potentially life-saving procedure for capital
clients -- coupled with the termination of federal funds for death penalty
resource centers have left many on death row without access to desperately
needed counsel. In addition, private firms, once willing to do pro bono work
for a capital client, now consider these cases to be a costly sinkhole and are
reluctant to take them on.
In recent weeks, NCR interviewed three capital trial
lawyers credited with considerable accomplishments in their field. Their
stories, remarkable in themselves, provide a unique insiders commentary
on the implementation of the death penalty in America.
Stephen Bright
Stephen Bright always knew he wanted to represent poor people.
After graduating from the University of Kentucky School of Law in 1975, he
worked for legal services in the coalfields of Appalachia. Even as a kid, he
was appalled by the death penalty, but capital representation was far from his
mind until he got the call in 1978 to help out with a death penalty
case in Georgia. He has remained there ever since, representing indigent
clients, some with IQs as low as 70 or 80, in a state where the capital
defender program is just a shell of its former self.
The legal system, he said, is so fundamentally
unfair to the poor. And Bright is a stickler for fairness, quick to call
foul at every inequity in the duel between defendant and the state that
prosecutes. Outrage and a love of the fight keep him going. Im
wearing my heart out in pursuit of the unobtainable, he admitted,
but I wouldnt be anywhere else.
The executive director of the Southern Center for Human Rights,
based in Atlanta since 1982, Bright also teaches courses on the death penalty
and criminal law at Harvard, Yale and Emory law schools. Considered one of the
countrys leading experts on capital representation, he has received
several awards in the last decade for his work as legal advocate for the poor.
He has written extensively on criminal justice and judicial independence,
testified before the U.S. House and Senate and worked with the American Bar
Association Task Force to provide recommendations to Congress for improving the
fairness of the death penalty process.
Established in 1976, the center is a public interest legal project
that provides representation throughout the South for prisoners and persons
facing the death penalty. It operates on an annual budget of less than $1
million, receives no government funding and is supported by individuals, law
firms and foundations, and by quite a bit of pro-bono lawyering.
The centers nine attorneys are each paid $30,000 a year.
Bright, who is currently subsidized by a grant from the Lindhurst Foundation,
receives no salary from the center. Incomes are deliberately kept modest, he
said, to free up money for trial work. There is so much that needs to be
done and so little resources. Besides, he adds, there is no divine
right of lawyers to live like kings. They can live like plenty of other people
who make it on a modest salary.
The center operates in a region where the quality of capital
representation is dismal, said Bright. People facing executions are
assigned lawyers who lack expertise and funds. Alabama, Georgia, Virginia,
Mississippi and Texas have no state-funded public defender programs, although
the latter two have recently allotted some funding for indigent defense. He
finds it appalling that the states most willing to execute
people are not willing to pay for adequate counsel. In those
states, he said, it is better to be rich and guilty than poor and
innocent because the poor are represented by court-appointed lawyers who often
lack the skill, resources and, on occasion, even the inclination to defend a
case properly.
In 1989, in response to litigation from the center, the Georgia
Supreme Court required that a person accused of a capital crime receive
adequate representation. But the state has done little to implement its own
law, Bright said, and poor clients are still defended by attorneys who
specialize in title searches, wills and divorces.
In his June testimony before the Senate Judiciary Committee,
favoring the passage of the Innocence Protection Act, Bright cited case after
case in which the defense counsel failed to represent a client well.
In at least four cases in Georgia, counsel referred
to their clients before the jury with a racial slur. A woman in Alabama was
represented by a lawyer so drunk that her trial had to be suspended for a day,
and the lawyer sent to jail to sober up. The next day, both lawyer and client
were produced from jail and trial resumed. Defense lawyers in Alabama and
Missouri cases had sexual relations with clients facing the death penalty. In
far too many cases, lawyers defending capital cases were impaired by alcohol,
drugs or infirmity, Bright said.
Such incompetence rankles Bright, who describes capital
representation as a fairly specialized skill requiring knowledge of proceedings
that are arcane and complex. Quite frequently, a capital trial
attorney has to contend with very complex mental health issues, he
said. If a client has a history of neglect or deprivation or suffers from fetal
alcohol syndrome, the attorney has to be able to identify these problems and
articulate how they influence a persons behavior.
Bright believes that it is the lawyers job to humanize
the client for the jury because ultimately death penalty cases rely
far more on human compassion than the technicalities of the law.
Its very hard to kill someone you know. You are asking the jury to make a
premeditated decision to kill someone. A lot of times our client is guilty. But
there are different levels of culpability. Who was this person? There is always
a story. No one wakes up and decides to be a bad person.
In 1988, Bright, along with a team of attorneys, successfully
challenged the death sentence for Tony Amadeo in the U.S. Supreme Court by
showing that the prosecutor secretly instructed jury commissioners to
underrepresent African-Americans in the jury pool.
Racial bias, said Bright, permeates the administration of the
death penalty. His centers Web site reports that 27 percent of
Georgias population and 68 percent of its homicide victims are
African-American. Yet among the states death row population, 90 percent
of the victims are white. The discrepancy suggests that the race of the victim
has more bearing on a capital prosecution than the crime itself.
Often the only person of color participating in a capital
trial is the defendant, Bright said. Prospective jury members are
frequently asked if they consider the death penalty an acceptable form of
punishment for certain crimes, and those who answer no are often struck from
the jury pool. That question has tremendous impact on the racial
make-up of the jury, he said.
Statistics from the Equal Justice Initiative, a death penalty
resource center in Alabama, confirm Brights description of all-white
courtrooms trying black defendants. In Alabama, African-Americans constitute 2
percent of the states prosecutors, 4 percent of its criminal court judges
and 66 percent of its prison population.
Bryan Stevenson
Executions colored by race and poverty necessarily become a
civil rights issue, said Bryan Stevenson, executive director of The Equal
Justice Initiative. More important, they become a human rights
issue.
Stevenson interned at the Southern Center for Human Rights while
still a law student at Harvard. Issues of race and poverty had always
interested him, but he had no clear expectations for himself and he
admits that he went to law school by default. But his months in
Atlanta gave him a vocation that still rings true. I saw people literally
dying from lack of representation. Once I was exposed to the insidious racial
bias, it became difficult to imagine doing anything else.
A native of Delaware, Stevenson wages his fight for the civil
rights of the condemned in Alabama, one of the poorest and most
conviction-prone states in the country. According to the Equal Justice
Initiative, Alabama, which currently has 187 people on death row and 300 facing
capital trials, has issued more death sentences than any other state in the
country. Its death row population has doubled in the past 10 years. The
elevated numbers are due in part to a quirky Alabama law that allows a judge to
reject a jurys verdict of life imprisonment, replacing it with death.
Twenty-five percent of the states death row population
received a life sentence that was overridden by a judge, the initiative
reports.
Moreover, Alabama and Georgia are the only two states in the
country that do not guarantee counsel to death row inmates after a direct
appeal to the highest state court. In Alabama, lawyers representing inmates who
wish to raise additional claims at the state or federal level cannot be paid
more than $1,000 per post-conviction proceeding. Its an absurdly low fee
for the legal world, where attorneys can charge $25,000 to $50,000
just to keep out of prison a client accused of driving under the influence of
drugs or alcohol, said Stevenson.
The state cap has meant that death row inmates, desperate to have
their cases reviewed, are dependent on the good will of volunteer lawyers.
If you dont find the attorney, you dont get the
review, and for death penalty clients, these are the most important, he
said. Post-conviction reviews provide the defendant with a last opportunity to
point out errors made at the trial level, errors that can be as egregious as
having a defense attorney who falls asleep in court.
Stevenson estimates that 40 prisoners on Alabamas death row
are currently without counsel.
In 1989, the state of Alabama was paying only $600 to any attorney
willing to take on a post-conviction review. That was the year Stevenson met
Walter Johnny D McMillian, accused of killing young Ronda Morrison.
McMillians story is the subject of Pete Earleys book
Circumstantial Evidence (Bantam, 1996).
Johnny D, already incarcerated on death row for 15
months, was a little leery of lawyers. His previous team of two attorneys had
spent no time on the case and as far as Johnny D. was concerned
werent worth $5.
Stevenson, 28 at the time, had just been appointed executive
director of the fledgling Alabama Capital Representation Resource Center.
Johnny D. was his third death row interview at Holman prison that January
afternoon. Upon seeing the inmate, Stevenson launched into his standard
speech, Earley wrote. It was one he gave to all his clients, some of whom
were too afraid to confess the heinous nature of their crime, even to their
lawyers.
It doesnt matter to me whether a person has killed
900,000 people or if a person has never killed anyone. The objective is still
the same. I dont want to see you executed. The bottom line is, your life
is of value regardless of what you have done.
He was just like a brother, Johnny D said of his
devoted attorney who, along with co-counsel Michael OConnor,
obtained exoneration for his client in 1993. On the day of Johnny Ds
release, Stevenson was waiting to take him home.
They didnt need to bring the car for me that
day, McMillian mused. I couldve just run out of there and on
down the road. I felt like I wanted to fly.
In 1996 the Alabama Capital Representation Resource Center lost
its federal funds and was replaced by Equal Justice Initiative, a private,
nonprofit organization. Its staff of five attorneys, two fellows and four legal
assistants are currently involved in 100 death penalty cases, which is
way more than a staff of our size should do, said Stevenson.
Capital trials are notoriously long and complicated -- stretching
out for years and requiring hundreds of hours of legal work. According to
The New York Times, a Florida firm reported that it spent 10 years and
$10 million worth of lawyering hours representing one death row client.
Like their Atlanta counterparts, the initiatives attorneys,
three of whom graduated from Harvard Law School and one from Yale, work for
meager wages -- somewhere under $30,000. They have had uncommon
success, according to Stevenson. Seventy death sentences were
overturned through our litigation.
In May, the initiative obtained a stay of execution for mentally
retarded death row inmate Gary Holloday, pending a review by the U.S. Supreme
Court. Stevenson hopes the case will lead to a change in Alabama legislation.
Twenty-one states have expressly exempted the mentally retarded from execution.
Alabama is not among them.
But for the Alabama attorney, these successes are not
enough, given how many people are at risk. His work as a death penalty
lawyer is not what he imagined for himself.
It is incredibly engaging and debilitating, he said.
Defending the rights of the imprisoned is a crucial piece in the broader
movement for human rights, and he loves being a part of it all. But the poverty
of his clients lives overwhelms him at times. Many are victims of
horrific violence and neglect, and he is almost formulaic about the
pattern of their suffering: abused at 3, sexually assaulted at 6, discarded at
9, when many of them began experimenting with drugs.
As a society, we have used punishment and incarceration as a
mechanism for responding to the absence of hope in peoples lives. We are
still dealing with the legacy of racism, he adds, and we dont
value the needs of the poor.
[John Holdridge]
The needs of capital defense attorneys are not a high priority
either, according to John [Holdridge]. [Holdridge],
who has always been against the death penalty, took on his first
capital case while working as a summer associate with a prominent Wall Street
firm, Cahill Gordon Rindell. He won the appeal and, after graduating from law
school, got a grant from the American Civil Liberties Union to go South.
Initially, he worked at the trial level. I wanted to focus
on first appeal because that is where you have the best chance of saving
someones life, he said. But he began to feel like a man pulling a
drowning person from a river of dying people.
I would go into a county and they might have seven death
penalty cases. I could save one persons life but I found that everyone
else was getting killed.
So [Holdridge] turned his attention to the bigger
problem -- woefully underfunded and overworked public defenders. People on
death row were getting lawyers who had no time.
Or money. In some Louisiana parishes [Holdridge]
observed, public defenders were juggling 600 felony cases -- three to four
times the national average -- plus three or four capital cases.
Mississippi was no better. The two part-time public defenders in
Jones County, operating on a budget of $32,000, had 650 felony cases
between them and eight capital trials as well, [Holdridge]
said.
Until fairly recently, both states imposed a $1,000 cap on capital
trials, according to [Holdridge]. This ridiculously low fee was
expected to cover overhead costs as well as hours (which could number in the
hundreds) for legal work on a trial. The incredible lack of funds meant that
attorneys defending capital clients were faced with a terrible choice,
[Holdridge] said. You go into bankruptcy or you dont
defend your client well.
In 1990, the Mississippi Supreme Court adjusted state funding for
capital cases and allotted an hourly fee of approximately $25 for
overhead costs, [Holdridge] said. But the $1,000 cap on trial
fees remained. In 1993, the Louisiana Supreme allocated $57 an hour to cover
fees and overhead costs.
This year, the National Legal Aid and Defender Association honored
[Holdridge] with the Life in the Balance Achievement Award for
his work in Mississippi and Louisiana representing not only the poorest
clients but the poorest lawyers. His work contributed to the
establishment of a capital trial and post-conviction unit in Mississippi. The
state has allocated an annual budget of $750,000 for four attorneys who
specialize in capital representation.
They will provide training for local lawyers appointed to a
capital case, said [Holdridge], who described the creation
of the program as progress.
But the funding is nowhere near enough for whats
required. Mississippi has over 100 death penalty cases right now and 12
appeals.
[Holdridge] also wrote the leading brief and argued
the case that led to the creation of the Louisiana Indigent Defense Assistance
Board. Established in the mid-1990s, the board operates on an annual budget of
$7.5 million.
Private attorneys defending poor clients are no longer confined to
the $1,000 cap per trial. Its a huge victory, he said.
[Holdridge] estimates that he was directly involved
with 70 capital cases. Not every client was his friend.
Some resented, even appealed the life sentence they received in
lieu of execution. But Michael Graham will always remain eternally grateful to
the pro bono lawyer who worked his tail off.
On March 3, 2000, after nine years of litigation,
[Holdridge] obtained exoneration for the Virginia roofer who
spent 14 years on death row for a crime he did not commit.
Taking on a death row case really thrilled
[Holdridge]. But after working for a decade to increase funding
for capital trial lawyers, he left the deep South and headed to Connecticut
because of money. I wasnt burned out by doing the death penalty
stuff. I was just burned out by money.
He estimates that he spent half his time chasing down grant money,
which was never near enough and trying to get judges to pay
him.
I never had a secretary. I never had a paralegal. I had a
30-year-old desk and a computer that shut down on me periodically. It was
his wifes salary, he admits, that ultimately got him through those
years.
[Holdridge] now works as a capital trial lawyer for
Connecticuts public defender program. Stevenson and Bright continue to
fight the good fight from their Southern bases. Although Bright has lobbied for
death penalty reform, he believes capital punishment is a fundamentally flawed
legal option.
You cannot design a system that will fairly and rationally
execute people, he said, quoting Supreme Court Justice Harry
Blackmun.
In most [court] cases, the focus is very narrow and you are
dealing with factual questions concerning who was at fault. But in a capital
trial, the jury has to decide a much bigger issue: Is this person so
beyond redemption that they ought to be eliminated from the human
community? Its a boundless question.
Claire Schaeffer-Duffy is a freelance writer living in
Worcester, Mass.
Related Web sites |
Equal Justice Initiative www.eji.org National
Legal Aid and Defender Association www.nlada.org Southern Center
for Human Rights www.schr.org |
National Catholic Reporter, October 5, 2001
[corrected 10/19/2001]
|