Death-Defying Acts: Many firms cite their capital case pro bono work. These good deeds save lives but can't redeem an intrinsically flawed system.

  • 1/12/2004
  • National Law Journal

American Lawyer, January 2004

Death-Defying Acts;

Many firms cite their capital case pro bono work. These good deeds save lives but can't redeem an intrinsically flawed system.
By Alison Frankel

Of the 89 firms that submitted entries to the Litigation Department of the Year competition, 22-almost a quarter-cited death penalty defense work as a highlight of their pro bono practice. There is no more telling indictment of the death penalty in the United States than the injustice, ineptitude, and hideous unfairness these big-firm lawyers found-unless it's the relative silence that greeted their efforts to balance the scales.

Occasionally, death row cases are spotlighted: the heroic 15-year effort of Morgan, Lewis & Bockius partners J. Gordon Cooney, Jr., and Michael Banks to win the acquittal of Louisiana death row prisoner John Thompson, for instance, or the decision of Illinois's then governor George Ryan, with pro bono counsel from Winston & Strawn, to pardon or grant clemency to all his state's death row inmates. More often, serious errors in the imposition of the death penalty are too commonplace to be news. "It's a thankless job," says Stephen Hanlon of Holland & Knight, who has fought for years to overturn the death sentence of Florida prisoner Richard Cooper. Though Hanlon uncovered evidence that Cooper's lawyer had a grievous conflict of interest, having previously represented a key witness against Cooper, Hanlon has so far been unable to win a writ of habeas corpus.

Some death penalty work is at trial: Shook, Hardy & Bacon lawyer M. Scott Michelman handled complex scientific evidence for Texas capital murder defendant David Hisey; convicted of killing his elderly parents; Hisey was sentenced to 43 years. And some reaches the U.S. Supreme Court; there, Jenner & Block overturned the sentence of a Maryland death row inmate.

The work is, by all accounts, difficult. "Without question, it was the most emotional, wrenching, and eye-opening of my career," says Thomas Allingham II of the Wilmington office of Skadden, Arps, Slate, Meagher & Flom. On New Year's Eve 2001, Allingham won a ruling from an en banc panel of the U.S. Court of Appeals for the Third Circuit that overturned the conviction of Delaware death row inmate James Riley, whose trial was tainted by race discrimination in jury selection. Allingham then helped Riley prepare for his 2003 retrial, at which Riley, representing himself, received a life sentence. "And even with our limited success," Allingham says, "it was the most gratifying."

Big firms are increasingly necessary as states cut resources, says Robin Maher, director of the American Bar Association's Death Penalty Representation Project. Maher says firms continue to accept cases from her; the ABA has found pro bono lawyers in 100 death penalty cases since 1998. "I wouldn't say there's been no slackening [in the economic downturn]," Maher says. "But the good news is, we're still able to recruit firms."

These efforts are not made just on behalf of the innocent. In some sense, the lawyers are defending the integrity of the system. In case after case, big-firm appellate lawyers found ineptitude or worse by trial lawyers. Sometimes the problem was a lack of resources. Kenneth Parsigian and Paul Nemser of Goodwin Procter, for instance, represent Kenneth Richey, convicted in 1986 of setting a fire that killed a young girl. Richey's trial counsel hired a fire "expert" who was wholly unqualified. The Goodwin lawyers hired a new expert, whose testimony undermined the state's case. Citing ineffective assistance of counsel, Nemser and Parsigian have sought to overturn Richey's conviction, but so far haven't succeeded. "A solid lawyer at trial," says Parsigian, "is better than an A-plus lawyer in a habeas proceeding."

Witness the case of Leroy White, who rejected a plea offer because his counsel said he wouldn't face the death penalty under Florida precedent. But White was in Alabama, where he was convicted and sentenced to death. His appellate lawyer, Matthew Dobson of Saul Ewing, is awaiting a federal ruling on whether the trial lawyer's advice constitutes ineffective assistance.

Most often, underpaid and inexperienced trial lawyers simply failed to investigate the backgrounds of capital clients. William Abrams of Pillsbury Winthrop says no one at the trial of his client, Alabama death row inmate Jimmy Davis, Jr., presented evidence of Davis's childhood abuse or low IQ. "There was no psychosocial history," says Abrams. "Jimmy is incapable of murder." Abrams awaits a ruling on his state habeas petition, which also claims ineffective assistance in the guilty stage of Davis's trial.

Nor was the ghastly physical and sexual abuse suffered by James Karis investigated by his trial lawyer; citing that failure, Norman Hile of Orrick, Herrington & Sutcliffe was able to win a federal district court ruling that overturned Karis's sentence. John Howley, a partner at New York's Kaye Scholer, represents Holly "Jim" Wood, an Alabama death row inmate with an IQ significantly below 70. Howley awaits a ruling in state appeals court on claims that Wood's lawyer-a real estate practitioner who'd passed the bar less than a year before being assigned the murder case-provided ineffective assistance.

Mitchell Raup of Mayer, Brown, Rowe & Maw discovered that the lawyer for his client, Georgia death row inmate Alphonso Stripling, hadn't investigated evidence that Stripling is retarded.

The most dramatic achievement in redefining effective assistance in the last two years came in Jenner & Block partner Donald Verrilli, Jr.'s representation of Maryland prisoner Kevin Wiggins. Wiggins's history, says Verrilli, would have presented a compelling case for mitigation at his sentencing. But Wiggins's trial lawyers didn't investigate that background, which meant, Verrilli later argued in state and federal habeas proceedings, that they couldn't make a reasoned decision about sentencing strategy. In 2003 the Supreme Court vacated Wiggins's sentence. "In hindsight, I think the Court was ready to say something about the level of representation death row inmates are getting," says Verrilli, whose client awaits resentencing. "The Court sent a strong
message: The bar for competent counsel is high. You can't do the bare minimum."

Pro bono counsel keep raising the bar. Hale and Dorr successfully challenged the state constitutionality of the conviction of Alabama inmate John Lionel Neal, Jr., who is retarded. His case is headed for retrial. In Illinois, Winston & Strawn successfully represented two individual prisoners in clemency petitions before the Prisoner Review Board; one of them, Johnnie Lee Evans, was a client of the firm for more than ten years before his pardon.

Chicago death row inmate Madison Hobley was set free with the assistance of Kurt Feuer of Ross & Hardies, now part of McGuireWoods. Hobley, convicted of setting a fire that killed seven people including his wife and baby son, was questioned by Chicago police officers who were later proved to have tortured suspects to obtain convictions. Though Hobley's appeals failed, Governor Ryan granted him a pardon, stating that he "was convicted . . . because the jury did not have the benefit of all existing evidence, which would have served to exonerate him."

In a rare reprieve from Texas's death row, Paul Richard Colella, represented by Locke Liddell & Sapp lawyers Michael Powell and Susan Karamanian, now an associate dean at The George Washington University Law School, will be released from prison after he serves eight more years. The Locke lawyers uncovered evidence of prosecutorial misconduct, alleging that prosecutors failed to turn over to the defense a death certificate that would have allowed Colella to offer an alibi. Samuel Silver of Schnader Harrison Segal & Lewis got the sentence of his death row client, Florencio Rolan, overturned after almost nine years of arguing in state and federal courts that his client had acted in self-defense when he shot a man in a Philadelphia drug house. At the sentencing retrial, a jury sentenced Rolan to life in prison. Now Silver intends to concentrate on his pending federal habeas case challenging Rolan's guilt.

Sullivan & Cromwell's Margaret Pfeiffer won a reversal of conviction for her client, Gerardo Valdez, a Mexican citizen. Article 36 of the Vienna Convention on Consular Relations guarantees that when a foreign national is detained, he has the right to see a consular officer. The U.S., says Pfeiffer, has never honored this provision; no Mexican consulate was notified of Valdez's arrest, and Valdez, who has frontal lobe damage and a low IQ, was never examined by a Spanish-speaking neuropsychologist.

Pfeiffer had Valdez examined by a bilingual expert. When the state's psychiatrist saw those results, he swore out an affadavit stating that his conclusions about Valdez's mental abilities would have been different. In May 2002 the Oklahoma Court of Criminal Appeals overturned Valdez's conviction; in October 2003 Valdez agreed to a plea bargain that sentenced him to life without parole.

Then there are the heartbreaks. John Hamilton of Foley & Lardner and lawyers from Shearman & Sterling did receive a certificate of appealability from the U.S. Court of Appeals for the Eleventh Circuit on their claims that Florida inmate Ted Herring received ineffective assistance at his sentencing. But that came only after years of failed appellate objections about a flawed sentencing procedure and his retarded-level IQ.

Courtland Reichman of King & Spalding managed to get the attention of a federal judge in the case of Georgia death row prisoner Exzavious Lee Gibson, but has not yet won relief for his client. Gibson, who is borderline retarded, had been forced to represent himself at his first state habeas proceeding. Clearly confused, Gibson kept asking Judge Carlisle Overstreet for a lawyer. Instead the judge denied his petition. When Reichman went to federal court, Judge Dudley Bowen was so disturbed by Gibson's transcript that he personally telephoned a different state
court judge and asked him to schedule a new hearing. In the meantime, Reichman developed evidence that Gibson's trial lawyer, who had spent a total of 32 hours on Gibson's case, wasrepresenting the state as a special assistant attorney general at the same time he was defending Gibson. Nevertheless, the state judge once again denied habeas.

John Gallo of Sidley Austin Brown & Wood represents Obadyah Ben-Yisrayl, an Indiana death row inmate. Ben-Yisrayl faced trial in four jurisdictions on seven murder charges. He was convicted in two, but acquitted in the other two. Another man was subsequently convicted of those murders. Gallo developed evidence suggesting that the other man had committed all the murders. He filed habeas petitions in federal court challenging both of his client's convictions; in July 2003 one of Ben-Yisrayl's convictions was overturned-though the other was not.

Fulbright & Jaworski lawyers Brian Greig and Marcy Greer failed to prevent the execution of their client, Texas prisoner Jose Santellan. Though they'd won habeas in federal district court, where a judge ruled that the state hadn't proved Santellan was guilty of the attempted kidnapping that was necessary to support his capital conviction, the U.S. Court of Appeals for the Fifth Circuit reversed the lower court.

Sullivan & Cromwell lawyers D. Stuart Meiklejohn and Steven Holley were also unable to win a reprieve for their client of ten years, Henry Lee Hunt. Meiklejohn says he remains convinced of Hunt's innocence. He and Holley attended the execution in September 2003 in North Carolina. "It was indescribable," he says. "The idea of wheeling someone out in front of witnesses . . . to watch somebody pumped full of drugs so his heart stops beating and his brain stops working is something I can't figure out how to cope with."

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