About 3,300 people are on death row right now. Few are represented by competent lawyers at public expense, despite the need to be sure — certain, if possible — that only the guilty will be executed. Most death row inmates desperately need a lawyer.
At its annual awards ceremony a week ago, the Minnesota Justice Foundation highlighted the injustice that pervades the death penalty in the United States and recognized the Minnesota lawyers and law firms that donate time and money in the pursuit of justice for those on death row.
According to U.S. Magistrate Judge Jeffrey Keyes, “the criminal justice system, by and large, is infected with error. In a death penalty case, all of those inherent flaws are multiplied.”
So it would seem: at least 17 people have been exonerated by DNA evidence after they were sentenced to die for crimes they did not commit. Minneapolis law firm Maslon Edelman Borman & Brand, LLP, may be representing the next one.
Douglas Armstrong was convicted of murder in south Texas. He claims he came on a man lying in a pool of blood, and tried to drag him to help. His story has never changed. Someone saw him, and he gave it up, only to be arrested shortly afterward. His trial counsel gave a half-hearted effort, and Armstrong was convicted. He was sentenced to death because the police claimed they found the victim’s Medicaid card on Armstrong, and called that an aggravating factor. Maslon won the right to test the DNA evidence, which could refute the state’s evidence and exonerate Armstrong.
But DNA evidence is not available in all cases.
Further, according to University of Minnesota law professor Carl Warren, the criminal justice system targets, convicts and executes minorities far more than whites. Warren points to research suggesting that the death penalty is a legal replacement for lynchings in some southern states. Panelists at MJF’s seminar on death penalty litigation noted the frequency with which prosecutors pack the jury of a black defendant with white jurors.
Numerous other errors come up again and again in death penalty cases, from prosecutorial misconduct to incompetent defense counsel and more.
The only way to correct errors is on appeal, but there is little assistance available to those sentenced to die. During its 1995-96 term, Congress eliminated funding for resource centers that provided post-conviction representation. The same year, it shortened the time convicts had to file an appeal. Only a handful of states provide any assistance after conviction. Since 99.5 percent of those on death row are impoverished and cannot afford a lawyer, most errors go uncorrected.
Worse, some of those sitting on death row probably should not be there. Until 2002, the mentally retarded could be executed. But proving mental retardation takes a competent lawyer and expensive experts. Robin Maher, director of the American Bar Association’s Death Penalty Representation Project, believes many of those on death row will be executed even though they are mentally retarded
Maher says she is angry. “I know how much there is to be angry about.” Like a defense lawyer who told the jury his client’s life was not worth saving. Or other defense counsel who were drunk or high during their clients’ trials. Or U.S. Supreme Court Justice Antonin Scalia, who said the innocent may be executed as long as the proprieties are observed. (Scalia also says he does not believe anyone who is innocent has ever been executed.) Or judges in Alabama who often overrule juries when the juries decline to sentence the convicted defendant to death. Or the fact that until 2005, children could be sentenced to death.
Those on death row are in desperate need of lawyers to ensure that justice — whatever that may mean in a particular case — is done.
No easy task
Of the Armstrong case he is working on, Julian Zebot says “this is the highest-stakes case I have ever had . . . I don’t want to contemplate failure.” Lawyers who represent death row inmates say they were not prepared for the emotional weight and the need to maintain their client’s hope through years of litigation. Reflecting on things he wishes he knew before taking a death penalty case, lead counsel for Armstrong, Maslon attorney David Schultz, says: “I wish I fully appreciated how hard this work is.”
Since many of the lawyers representing death row inmates are civil litigators with little or no criminal defense experience, the learning curve can be formidable. Step one is to get one’s head around the facts of the case in as much detail as possible, which is often not possible with the public record alone. Step two is to master the substantive law, which is in a constant state of flux. Step three is to learn procedural quirks — the rules may have little to do with what the local judges and magistrates do.
All the lawyers who talked about their experiences at the MJF panel said their experiences put the rest of their practice in perspective. Mark Olson, who has been working on a death penalty case since 1997 at Oppenheimer Wolff & Donnelly LLP, says “it’s been transformative.” And exhausting. Of his litigation strategy, Olson says: “If I can keep this thing going, maybe the law will change in our favor.”
There may be additional intangible benefits as well. Judge Keys says lawyers who work on death penalty cases have the respect of the bench, since judges are aware of how hard the work is.
Some lawyers may even achieve an exoneration or commutation of their client’s sentence. Others may not. All the lawyers on the panel agreed that volunteering on pro bono cases is worth it, no matter the outcome.
High cost of representation
Law firms that volunteer to represent death row inmates usually end up spending tens of thousands of dollars on experts, travel, and other out-of-pocket costs, and millions of dollars worth of attorney time. At Maslon, for example, eight to 10 lawyers are working on the case, and the firm has hired four experts at the firm’s expense. That is why the list of law firms who have taken cases under the ABA’s Death Penalty Representation Project is mostly large law firms.
Keys says — and Zebot agrees — that working on a death penalty case gives lawyers a valuable perspective when representing clients where something less than a person’s life is at stake.
The death penalty is a flawed institution in need of lawyers to ensure justice is done. For that to happen, inmates on death row must rely on volunteers to protect their rights. The lawyers and law firms that volunteer their time face a daunting and exhausting — but important — task.