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National Catholic Reporter, Oct. 5, 2001

RARE BREED

Death penalty lawyers defend rights of politically invisible

Bryan Stevenson graduated from Harvard University magna cum laude with a bachelor's in philosophy, got his master's 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 6-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. "We're 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 insider's 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 IQ's 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. "I'm wearing my heart out in pursuit of the unobtainable," he admitted, "but I wouldn't 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 country's 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 center's 9 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 2 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 4 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 person's behavior.

Bright believes that it is the lawyer's 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. It's 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 center's Web site reports that 27 % of Georgia's population and 68 % of its homicide victims are African-American. Yet among the state's death row population, 90 % 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 Bright's description of all-white courtrooms trying black defendants. In Alabama, African-Americans constitute 2 % of the state's prosecutors, 4 % of its criminal court judges and 66 % 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 jury's verdict of life imprisonment, replacing it with death. 25 % of the state's death row population received a life sentence that was overridden by a judge, the initiative reports.

Moreover, Alabama and Georgia are the only 2 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. It's 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 don't find the attorney, you don't 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 Alabama's 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. McMillian's story is the subject of Pete Earley's 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 2 attorneys had spent "no time on the case" and as far as Johnny D. was concerned "weren't 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 3rd 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 doesn't 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 don't 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 O'Connor, obtained exoneration for his client in 1993. On the day of Johnny D's release, Stevenson was waiting to take him home.

"They didn't need to bring the car for me that day," McMillian mused. "I could've 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 f5 attorneys, 2 fellows and 4 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 initiative's attorneys, 3 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. "70 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. 21 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 people's lives. We are still dealing with the legacy of racism," he adds, "and we don't value the needs of the poor."

John Holderidge

The needs of capital defense attorneys are not a high priority either, according to John Holderidge. Holderidge, who "has always been against the death penalty," took on his 1st 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 1st appeal because that is where you have the best chance of saving someone's 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 7 death penalty cases. I could save one person's life but I found that everyone else was getting killed."

So Holderidge 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 Holderidge observed, public defenders were juggling 600 felony cases -- 3 to 4 times the national average -- plus 3 or 4 capital cases.

Mississippi was no better. The 2 part-time public defenders in Jones County, operating on a budget of $32,000, had "650 felony cases between them" and 8 capital trials as well, Holderidge said.

Until fairly recently, both states imposed a $1,000 cap on capital trials, according to Holderidge. 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, Holderidge said. "You go into bankruptcy or you don't 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, Holderidge 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 Holderidge 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 Holderidge, who described the creation of the program as "progress."

"But the funding is nowhere near enough for what's required. Mississippi has over 100 death penalty cases right now and 12 appeals."

Holderidge 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. "It's a huge victory," he said.
Holderidge 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 9 years of litigation, Holderidge 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" Holderidge. 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 wasn't 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 wife's salary, he admits, that ultimately got him through those years.

Holderidge now works as a capital trial lawyer for Connecticut's 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?' It's a boundless question."


National Catholic Reporter, Oct. 5, 2001

Federal legislation impedes work of death penalty lawyers


Stephen Bright, attorney and death penalty expert, describes the 1990s as a time of "terrible problems" for capital trial lawyers.
In 1996, 2 Congressional decisions drastically changed the legal landscape. Early in the year, legislators cut all federal funding for death penalty resource centers and then, several months later, issued a bill severely limiting federal appeal options for death row inmates.

"It was a devastating one/two blow for the defense of capital clients," said Bright. Congress shortened the time in which death row inmates could file their federal appeals right after taking away the attorneys who could assist with those appeals, he said.

The $18 million federal budget cut meant the complete demise of most death penalty resource centers, said Richard Dieter of the Death Penalty Information Center. In many states, these centers "did the key death penalty legal work."

They acted as a resource for outside lawyers taking capital cases and often, because of shortages, tried cases themselves, he said. After cuts, the national total of death penalty centers dropped from 20 to about 7.

"Some centers were able to survive on private or state funding," said Dieter, "but all are smaller than they used to be."

Bright reports that in other states, such as Texas, the federally funded program has completely disappeared. Texas, he said, "has the worst public legal system of any state. It just has the appearance of a process. There is no public defender system. No capital trial unit. No post-conviction unit."

On April 24, 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act. The bill severely limits the role of federal review in a capital case by restricting when an inmate can obtain a federal hearing and when a federal court may set aside state-imposed convictions or sentences. The bill also imposed a 1-year deadline for the filing of a habeas corpus petition, which is submitted when valid claims of constitutional error can be made.

The Death Penalty Act encumbered the habeas petition with new procedural rules, said Dieter, and inmates can apply only once. They "now have a time limit, number limit and content limit."

Proponents of the act say it has streamlined the death penalty process, which typically drags on for years. Opponents say it has increased the likelihood that innocent people will be executed. Law professor Lawrence Marshall of Northwestern University believes the bill has "fundamentally changed the role of the federal court in reviewing a death penalty case."

"Throughout the '50s, '60s, '70s and '80s, the courts operated in a manner that recognized that sometimes the political pressures at the state level are such that constitutional rights are not protected."

The state judiciary is elected, Marshall pointed out and therefore can be vulnerable, "subconsciously or unconsciously to the politics around a crime."

In some instances, Marshall said, the habeas proceeding helped specific individuals because it sent a message that state courts were not the final judge. He believes that the possibility of federal review acted as an "effective deterrent" against "judiciary sloppiness or politically-based judgments."

"If the homework's being reviewed, that's a strong incentive for doing it carefully."


National Catholic Reporter, Oct. 5, 2001

Innocence Protection Act


Frederico Martinez-Macias was represented at his capital trial in Texas by a court-appointed attorney paid $11.84 per hour. His counsel failed to present an available alibi witness, failed to interview and present witnesses who could have rebutted the prosecutor's case and failed to thoroughly examine key evidence.

Not surprisingly, Martinez-Macias was sentenced to death. He spent 9 years on death row before a Washington law firm stepped in, took his case and got an exoneration.

In Georgia, a court-appointed lawyer received $15 to $20 an hour for representing Gary Nelson, a man facing execution. Nelsons attorney worked without co-counsel and without a private investigator. At the trial, the closing argument for the defense was 255 words long. Nelson spent 11 years on death row before attorneys specializing in capital trials volunteered to obtain his release.

Since 1973, 96 people on death row were found to be wrongfully convicted and released. Last June, a Columbia Law School study found that 7 of 10 of the thousands of cases examined had serious, reversible error, many due to "egregiously incompetent defense counsel" and prosecutorial misconduct.

For some, these case histories, described by capital trial expert Stephen Bright, and related statistics are fodder for the ongoing debate about death penalty reform. Proponents of reform say the death penalty is administered unfairly. Whether or not you live or die is more contingent on income, skin color and where you are tried than on the crime itself.

Opponents of reform say the judiciary process has enough internal checks to prevent convicting the innocent. At the heart of the debate are questions about the integrity of the criminal justice system in the United States and its ability to assure every American the right to a fair capital trial.

Last June, lawmakers heard from both sides of the issue during a Senate Judiciary committee hearing on the Innocence Protection Act. The bi-partisan bill, co-sponsored by Patrick Leahy, D-Vt., and Gordon Smith, R-Ore., would afford convicted offenders greater access to DNA testing and would help states improve the quality of legal representation in capital cases by establishing national standards.

Title II of the Innocence Protection Act, considered the bill's most controversial feature, would establish a National Commission on Capital Representation. The commission, comprised of prosecutors, defense attorneys and judges, would develop standards for providing defense counsel to indigents facing a death sentence. The bill includes a grant program to help states implement these standards and "otherwise improve the quality of representation in capital cases." States failing to do so would be denied federal funds for their prisons.

Endorsers of the Innocence Protection Act include supporters of the death penalty. Among those testifying on behalf of the bill was Beth Wilkinson, lead prosecutor in the Oklahoma City bombing case. Co-sponsor Sen. Gordon Smith said he "believes that the death penalty is a useful tool for deterring crime." However, he said, the penalty must have the confidence of the people if it is to work. "Providing competent counsel to poor defendants will help maintain the integrity of our justice system and make the administration of capital punishment more effective," he said.

The bill, endorsed by the United States Catholic Conference, has 25 supporters in the Senate and more than 214 in the House, most of whom are Democrats.

Capital representation at the federal level is typically considered quite good, according to law professor Larry Marshall of Northwestern University. For the attorney faced with the daunting task of defending a capital client, funds and training are available. Millions were spent on the defense of Timothy McVeigh, for example, and Robert Nigh, McVeigh's attorney, received ample legal sssistance from the Federal Death Penalty Resource Counsel, an organization comprised of topnotch capital defenders.

Capital representation at the state level, however, is far more haphazard. Some states provide training for their capital trial attorneys; in others, resources are absurdly scant. "Many," says Bright,
"lack the key elements of an effective indigent defense system: a structure, independence from the judiciary and the prosecution and adequate resources."

Bright believes that it is "not unreasonable for Congress to require the states as a condition of receiving millions of federal dollars to implement an adequate indigent defense system to protect the innocent at least in capital cases."


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