Finding lawyers for death row's forgotten
ABA project seeks to recruit volunteer counsel
Katherine Frey / The Washington Post
By Susan Levine
Updated: 11:43 p.m. ET Nov. 29, 2004Robin Maher is a traveling saleswoman whose wares are condemned prisoners.
From Boston to Albuquerque, from Denver to New Orleans, she pulls out their pictures and histories and makes her pitch. They have been sentenced for sometimes gruesome crimes, she acknowledges. Many may be guilty as convicted; others have circumstances that could save their lives. A few could be innocent.
Not one has an attorney.
"Every face looking back at you is a human being on death row without a lawyer," she tells audiences. "This is a terrible crisis of counsel."
Maher leads the American Bar Association's Death Penalty Representation Project, and the people to whom she pitches are fellow lawyers. Most work at large, prestigious civil firms, specializing in such fields as antitrust and securities litigation for powerful people and major corporations. She asks them to take on the cases of murderers for what could be years of effort and scant compensation.
In the national debate on capital punishment, much has been made of lawyers who show up in court drunk or sleep through testimony or do such paltry or inept work as to violate their clients' constitutional rights.
But there is another equally daunting issue for indigent inmates with lives on the line: the lack of any lawyer at all. As their cases wend their way through appeals, as state and federal deadlines and hearings come and go and executions near, the Constitution guarantees no right of legal assistance.
The result is a system rooted in crisis. The ABA and other groups estimate that hundreds of inmates are without representation. And with the nation's death-row population nearing a record level and the appeals process still constricted by federal and state laws, soliciting pro bono counsel for them has become increasingly critical and difficult, Maher said.
Even so, the bar project has found lawyers for more than 100 cases since the late 1990s -- not just lawyers who decry the death penalty, but those who back it completely. Maher always has dozens of cases in her office on 15th Street NW. She sends a Virginia file to potential counsel in Detroit. With lawyers in Philadelphia, she talks about prisoners in Tennessee and Texas.
"This is not a good answer to the problem," she said. For now, though, "this is the only answer."
No moral stand
Maher flew to Seattle with high hopes early this year, a full schedule of recruitment meetings set up with law firms.
She stayed on message: The bar association neither supports nor opposes capital punishment. Its interest is ensuring legal counsel.
Over coffee at Preston Gates & Ellis, her first morning stop, Maher described the record that many court-appointed trial attorneys leave behind, sometimes so slim that it fits within a couple of folders. She conceded the complexity of death penalty appellate law and the gravity of what is at stake.
She mentioned, as she often does, her own representation of a young man sitting on death row in the South for a restaurant robbery gone horribly awry. He was 16, reckless and stupid, she said. His murder trial, start to finish, lasted just 1 1/2 days. His attorneys did no investigation; at sentencing, they presented a single witness.
One of the three Preston Gates lawyers listening shuddered.
"We've never, to my knowledge, done a death penalty case here," Susan Jones said. "We're not criminal lawyers."
"Neither was I," Maher stressed.
"I can hear in our executive committee, 'What are the hard-dollar costs?' " Jones said.
"They're all over the place," Maher answered. Still, no case comes cheaply.
As for the most challenging cost:
"There's so much riding on it," Jones began.
Maher understood immediately. "Of course, it's possible," she said, possible that a volunteer lawyer could have to walk a client to execution. "The only thing I can tell you," she continued, "is that you're giving [them] some hope and advocating for them."
When the ABA began its project nearly two decades ago, most state courts or laws afforded little assistance to death row prisoners once their initial appeal was concluded. Few gave them the right, or the public money, for a lawyer.
Congress decided in 1988 that a capital inmate was entitled to representation during a federal appeal, and it created a series of centers staffed with highly specialized defense lawyers to provide for that. Supporters praised their work as essential to the system's integrity, but critics decried them as obstructionists bent on destroying capital punishment from within.
After seven years, opponents successfully terminated funding; most of the centers closed soon after. Simultaneously, Congress passed sweeping changes to the death penalty, collapsing the time period an inmate has to appeal into the federal courts and requiring those judges to defer far more to their state counterparts' rulings on constitutional issues.
Advocates have seen progress since then, but it has been scattershot.
The Mississippi Supreme Court decided in 1998 that it "no longer could sit idly by" and allow a flawed system to continue. From interviewing old witnesses to uncovering new evidence to filing a habeas corpus petition claiming errors in conviction and sentence, "indigent death row inmates are simply not able, on their own, to competently engage in this type of litigation."
Virginia was shamed into legislative action in part by the case of Earl Washington Jr. The mentally retarded farmworker was just a couple of weeks away from execution when a cellmate persuaded a lawyer visiting their prison to intervene. With a New York firm's aid, Washington ultimately was cleared through DNA evidence.
But the devil is as much in the dollars. In Louisiana, where death row has nearly tripled in the past dozen years, legislators passed a right-to-counsel law but came up short on the funds.
"We tell [inmates], 'It's a bakery, take a number,' " said Denise LeBoeuf of the Capital Post-Conviction Project of Louisiana. Maher has been scouting for representation for a LeBoeuf case for four years.
"It's a damn serious issue," said U.S. District Judge Martin Feldman of Louisiana, who has urged local lawyers to volunteer on inmates' appeals. "I am a supporter of the death penalty, but I'm a very strong believer in as just and fair and good representation as humanly possible of those who face the ultimate punishment."
Of all states, Alabama is one of Maher's top priorities. It has no resource center, no statewide public defender, no requirement that a death row prisoner have an attorney to the end. At least half of the 140 appellate cases are defended by firms beyond the state's borders.
Jack Schafer, a retired partner at Covington & Burling in the District, worked 14 years on a case in the South. Before it ended in 2002, he and colleagues had expended tens of thousands of hours and the firm paid for countless experts and investigators.
"I tried like hell to find some Alabama lawyer to help us," the soft-spoken Schafer explained. "I had a feeling none . . . wanted to take on the establishment."
In some people's minds, most capital appeals are intentionally dilatory and frivolous. They have fought proposed federal grants to bolster post-conviction defense within states -- money that would go "to anti-death penalty groups for the defense of murderers and terrorists," Sen. Jeff Sessions (R-Ala.) declared.
His state's attorney general's office disputes that any condemned prisoners there lack lawyers. At least half of its roughly 140 appellate cases are defended by firms from beyond its borders, however.
"If the point is that somehow that's wrong, my point is, so what?" said Clay Crenshaw, the attorney general's chief litigator. As he sees it, the incursion stacks the deck in inmates' favor: Out-of-town lawyers arrive with deep pockets. "The state doesn't have the resources to combat that kind of power on the other side," he said.
Schafer never sensed that advantage. He'd gotten involved in Anthony Keith Johnson's appeal to see how the system worked. His client had been the only suspect of four to be tried for a deadly home burglary. Authorities agreed that he was not the killer but sought his death nonetheless. "All I knew, almost from the outset, was that he hadn't had a fair trial, and that was more important to me than whether he was guilty," he recalled.
Johnson asked Schafer not to attend his lethal injection; the lawyer isn't sure he could have handled it anyway: "I just couldn't bear to watch the guy get killed. Maybe out of guilt for having lost the appeal. Maybe like I let him down."
He still chokes at the memory. He still displays the foot-high statue Johnson carved for him from bars of soap mixed with glue. It is an ivory Jesus, arms outstretched.
An 'admirable' effort
The Seattle trip proved Maher's most successful recruitment, with Preston Gates and two other practices ultimately accepting four cases. Rejection is far more the rule, which is why she pursues any possibility. In passing, she heard about a small firm in Alaska that might be interested. Anchorage? Maher wondered skeptically. A four-lawyer shop willing to foot the time and expense?
Yes, said Feldman & Orlansky.
This April, its partners walked into a Beaumont, Tex., courtroom on behalf of a prisoner named Elroy Chester. They entered his case with the deadline for his last legal challenge just days away. Having denied his request for counsel, the state was more than ready to move to execute him.
"There are moments in life where you have to put your time and your energy in what you believe in," Susan Orlansky said. "If we hadn't taken it, it's not clear to me anybody would have."
The issue: Was Chester mentally retarded? If he was -- and the state, during previous years of incarceration, had classified him as such -- a U.S. Supreme Court decision prohibiting execution of the retarded would save his life. If not, his hope would be gone.
Orlansky and Jeffrey M. Feldman pored over Chester's academic and psychological records for months, searched for his schoolteachers, agonized over the details of his crime. Their barely literate client had gone on a murderous rampage starting in 1997. He received the death penalty for fatally shooting an off-duty firefighter who was trying to protect two nieces from being raped.
"I have never been responsible for someone else's life," Feldman said soberly. "I've lost a lot of sleep over this."
The attorneys argued the case for four days, their presence in the stolid Jefferson County courthouse piquing curiosity. Chester sat impassively beside them in a red prison jumpsuit. At the hearing's conclusion, Judge Charles Carver noted the job they had done.
"It's admirable that you have taken this case on without any hope of being compensated," he said. "You represent the highest, I think, that the legal profession has to offer."
Yet in late July, Carver ruled against them. Chester's death sentence would stand.