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A Capital Cause

  • 6/29/2007
  • Thomas Adcock
  • New York Law Journal

A Capital Cause

By: Thomas Adcock

June 22, 2007

Inspired by the passion of his late mentor's dogged representation of a hard-luck prisoner on Alabama's death row, David A. Kochman will fly to Montgomery sometime in the next few weeks for talks with the state Attorney General's Office in the cause of freedom for William Ernest Kuenzel, pro bono client of New York labor lawyer David "Duff" Dretzin until his own death a year ago next week.

Mr. Kochman's trip will come on the heels of his significant victory this month in a federal appellate court, the latest move in a battle long waged by Mr. Dretzin to reverse the 1988 conviction of Mr. Kuenzel for the shotgun slaying of a convenience store clerk in Talladega County - described by the Birmingham Post-Herald as "death row country" due to former District Attorney Robert Rumsey's record of sending a dozen criminal defendants to a flame-prone electric chair known as "Yellow Mama." (Alabama changed its primary form of execution to lethal injection in 2002.)

Behind the mountain of legal papers in state and federal courts is the story of a respected New York attorney's belief in the innocence of a seventh-grade dropout from rural Alabama, his protégé's sink-or-swim education in capital defense, the anomaly of attorneys giving in to emotion and the pro bono support of Anderson, Kill & Olick.

In addition to greenlighting its own lawyers - Mr. Kochman, fellow associate David A. Solomon and partners Jeffrey E. Glen and Harry H. Rimm - Anderson Kill provided its resources to the late Mr. Dretzin, who ran a solo practice from rented space at the firm.

As a summer associate in 2004, Mr. Kochman began what he called "secretarial work" for Mr. Dretzin in the cause of Billy Kuenzel, as their client became known. Last year on Father's Day, Mr. Dretzin suffered a stroke while driving back to the city with his family from their weekend home in Columbia County. Several days later, he died at age 77.

Mr. Dretzin's widow - the actress Joanna Merlin, who portrays Judge Lena Petrovsky on television's "Law & Order/Special Victims Unit" - said his long relationship with Mr. Kuenzel was exceptional.

"Duff tried to maintain the professional relationship all through the years," Ms. Merlin said. "But I saw something developing, something extraordinary. Duff and Billy both knew it. It had become a friendship. There was real love between the two of them."

 

In 1990, when Mr. Dretzin left a law firm partnership in search of full-time public service work, he came upon the Alabama-based Equal Justice Initiative, which had taken on the appellate case of Mr. Kuenzel.

Mr. Kuenzel had been convicted in state court after a brief trial, represented by appointed counsel at the officially capped rate of $1,000, and prosecuted by the legendary Mr. Rumsey - so gifted at oratory that defense lawyers in Talladega County often declined to make closing arguments in order to prevent the district attorney from speaking his turn, according to the Birmingham newspaper, which published a comprehensive series in 2001 about the state's capital cases under such headlines as "Justice at 50 Cents an Hour."

Working with Equal Justice - and with funding from private sources as well as the support of Anderson Kill - Mr. Dretzin set about unearthing evidence to disprove the testimony of Mr. Rumsey's sole witness at trial, a roommate of Mr. Kuenzel's who was himself implicated in the attempted robbery of the convenience store at question and served time in prison.

"It was clear at a very early stage that Billy was innocent," said Ms. Merlin. "There was no physical evidence. Duff began by going down to Alabama, traveling to trailer camps and all over the state to look up everybody who had any kind of connection to Billy - any possible witnesses."

Mr. Dretzin compiled a defense case that included a solid alibi for Mr. Kuenzel at the time of the murder, expert evaluation of a shotgun used by Mr. Kuenzel near the time of the slaying that would eliminate it as the murder weapon, and evidence withheld from defense counsel that points to the prosecution's sole witness as the probable killer.

But time after time in federal court encounters, the state insisted that Mr. Kuenzel's habeas petition was time barred.

With the blessing of Ms. Merlin and partners at Anderson Kill, Mr. Kochman, 27, lightened his insurance litigation caseload to devote time to the Kuenzel case.

"I am 100 percent convinced that Billy Kuenzel was screwed," said Mr. Kochman. "It isn't my case; it's Duff's case. I never imagined I'd be working on it without him. It was palpable how much [Mr. Dretzin] cared about Billy and believed in his innocence."

 

Habeas Denial Overturned

Nine days ago in the matter of Kuenzel v. Allen, 06-11986, the U.S. Court of Appeals for the Eleventh Circuit in Atlanta found for Mr. Kochman by vacating denial of habeas relief by the U.S. District Court for the Northern District of Alabama - despite the lower court's having "never discussed or squarely ruled on Kuenzel's claim of actual innocence," according to the appellate decision.

The ruling means that Mr. Kuenzel may again ask federal district court to order a new state trial - based on what Messrs. Kochman and Glen described in their argument before the court last October as "a large quantity of new evidence gathered without any court-ordered discovery or funding or expert witnesses that a reasonable juror would find he is more likely than not 'actually innocent' of the crime for which he was convicted."

In its response to Mr. Kochman's brief filed to the Eleventh Circuit, the state of Alabama continued to resist a new trial for Mr. Kuenzel.

"Kuenzel has failed to demonstrate that the state prevented him from timely pursuing his claim of actual innocence in federal court, or that he could not have timely pursued this claim with due diligence," wrote Assistant Attorney General J. Clayton Crenshaw. "Furthermore . . . Kuenzel has not come close to showing that a reasonable juror would have refused to convict him in the light of the alleged new evidence."

The appellate court, however, agreed with Mr. Kochman's claim that discovery would likely uncover motives for false prosecution testimony at Mr. Kuenzel's trial as well as exculpatory evidence in the form of statements withheld by police.

Accordingly, Mr. Crenshaw contacted Mr. Kochman this week to say he was open to status discussion. Mr. Crenshaw said in an interview yesterday that the state will not appeal the Court of Appeals ruling. However, it will continue to argue in the District Court that Mr. Kuenzel received a fair trial and is guilty of murder.

Help From Others

Mr. Solomon, a friend of Mr. Kochman's since undergraduate years at Emory University in Atlanta and the Benjamin N. Cardozo School of Law, is set to assist his colleague in dealing with Mr. Crenshaw and others at the Alabama Attorney General's Office.

In turn, Messrs. Kochman and Solomon consult with Mr. Glen, as well as Mr. Rimm, a former assistant U.S. attorney for the Southern District of New York who received the Thurgood Marshall Award from the New York City Bar Association for a successful death penalty appeals case in Alabama.

"A prosecutor is charged with doing the right thing, not simply securing a conviction," said Mr. Rimm, who endorsed Mr. Kochman's strategy in negotiating with Alabama authorities to avoid further procedural delay in the Kuenzel case. "An actual innocence claim is the most important claim that a prosecutor must hear."

Of Mr. Kochman's labors, Mr. Rimm added, "It's hard and challenging work in your home state, let alone trying to do something hundreds of miles away."

Mr. Solomon, 30, a sixth-year associate at Anderson Kill, said of Mr. Kochman's lead work in the Kuenzel case, "Doing an Eleventh Circuit argument where you're up there arguing against the attorney general is something most lawyers wait their entire careers to do. It's priceless experience. Chances are slim of an associate doing an Eleventh Circuit argument on a commercial case, just because there would be so much money involved. But [Mr. Kochman] is doing this work in the context of making an enormous difference - a real, individual, personal difference in somebody's life."

Mr. Kochman describes his work as "education by the seat of my pants." With the circuit decision as endorsement, he said conciliation is the best tactic going forward.

"I have the luxury of being a young attorney," he said. "I'm going in with my eyes wide open, full of idealism and telling myself that somebody will eventually see [Mr. Kuenzel's conviction] was wrong."

He added, "This is an opportunity for justice to work itself out. I'm doing this for myself, and for Billy - and also for Duff. I hope he'd be proud of me."

- Thomas Adcock can be reached at tadcock@alm.com.

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  • Other Death Penalty