[Deathpenalty]death penalty news-----USA

[Rick Halperin]

Nov. 30


USA:

Luring Pro Bono Lawyers For Death Row's Forgotten


Robin 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 1st 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.

1 of the 3 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 2 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 7 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 4 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."

Out-of-Town Resources

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 1/2 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 2 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 4 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.

(source: Washington Post)