The Toll of Representing Those on Death Row

Bryan Stevenson, Executive Director of Equal Justice Initiative in Alabama, recently delivered the keynote address at the 30th anniversary celebration of the Open Door Community in Atlanta.  Mr. Stevenson discussed how defending those on death row often takes a personal toll on those engaged in this work, even to the point of feeling "broken."  But, he added, "I’ve learned some very basic things, being a broken person. I’ve learned that each person is more than the worst thing they’ve ever done. I believe that if somebody tells a lie, they’re not just a liar; if somebody takes something, they’re not just a thief; even if somebody kills someone, they’re not just a killer. And because of this, I believe that we have this need, this mission, this calling, to embrace them and to recognize this 'something else.'”  Read full text of Stevenson’s remarks here.

EDITORIALS: Intellectual Disabilities and Death Sentences

The editors of the Birmingham News in Alabama recenlty called upon a trial court to overrule a jury's 10-2 recommendation for death in the case of Esaw Jackson because of his mental disabilities.  While noting that in many states Jackson would not even be eligible for the death penalty following a non-unanimous vote, the News added that an IQ test, conducted by a state expert on Jackson, showed an IQ of 56, well below the level that generally indicates an intellectual disability.  In 2002, the U.S. Supreme Court held that those with intellectual disabilities (mental retardation), cannot be sentenced to death.  The editors pointed out, “There are a number of reasons why intellectual disabilities are a reason for leniency: It stands to reason that someone without adequate intellectual capacity should not bear full legal responsibility for their actions. A strong case also can be made that people with diminished mental capabilities are at a disadvantage when it comes to defending themselves. Some intellectually disabled defendants, for instance, have confessed to crimes they didn't commit.” The editorial concluded, “If Jackson is intellectually incapable of bearing full responsibility for his actions, he not only should not be put to death - he cannot be under the law. Staging not just one but two capital trials was a colossal waste of time and money. [The judge] can avoid throwing more money down the drain by simply sentencing Jackson to life in prison with no chance for parole.”

NEW RESOURCES-PODCAST: Former Death Row Inmate Freed in Alabama

In the latest edition of the Death Penalty Information Center's podcasts, we interview attorney Jennifer Whitfield (pictured) of Covington & Burling, who worked to secure the release of former death row inmate Larry Smith in Alabama. Mr. Smith was sentenced to death in 1995 for a murder related to a robbery. His conviction hinged on a statement he made after 4 hours of interrogation. In violation of police guidelines, his interrogation was not recorded, and Mr. Smith later said his admission of involvement in the crime was coerced and influenced by threats made to prosecute his wife. No physical evidence or eyewitness account linked Mr. Smith to the murder, and a witness, who said Smith hatched a plan to rob the victim, was later implicated in planning the crime himself. In 2007, an Alabama Circuit Court ordered a retrial, and a plea deal was reached this year (April 6, 2012) that allowed Mr. Smith to be released after pleading guilty to conspiracy to commit robbery. The murder charges against him were dropped.  In the podcast interview, Ms. Whitfield discusses the failures that led to Mr. Smith's conviction and how some of those problems, including inadequate representation and coerced confessions, affect the death penalty system at large.  Listen to the podcast.

Death Row Inmate Freed Because of Ineffective Trial Representation

Larry Smith, an Alabama inmate who spent most of the last 17 years on death row, was released earlier this month after pro bono lawyers from Covington and Burling, LLP presented evidence that that Smith’s trial attorney had not properly investigated the case, that the confession was coerced, and that testimony from an informant who had initially pointed police to Smith was unreliable. Based on this evidence, the Alabama Circuit Court ordered a new trial for Smith in 2007. After give years of unsuccessful appeals by the state, a plea agreement was reached in Smith’s case and he was released from prison on April 6. In their 2007 ruling, the Alabama Circuit Court said, “Had counsel effectively represented Mr. Smith, the case presented to the jury would have looked very different… Whether individually or cumulatively, the effect of these omissions was overwhelming and the Court finds a reasonable probability exists that but for the ineffective assistance of Mr. Smith’s counsel, the outcome of the Mr. Smith’s trial might well have been different.”

POSSIBLE INNOCENCE: Alabama Denies DNA Testing for Man Facing Execution

Alabama recently set an execution date for Thomas Arthur (pictured), who was convicted of a murder that took place 30 years ago. Arthur has always maintained his innocence, but has been denied access to DNA evidence that might lead to a different verdict. As Andrew Cohen pointed out in an investigative piece in The Atlantic, Arthur is scheduled for execution on March 29, despite the confession of Bobby Ray Gilbert to the crime for which Arthur is facing execution.  There was no physical evidence that linked Arthur to the murder, and his sentence was secured almost entirely by the testimony of the victim’s wife, Judy Wicker. At first, Wicker told the authorities that Arthur was not involved in the crime, but when she was convicted for hiring someone to murder her husband, she arranged a deal with the prosecution. In exchange for a recommendation of early release from prison, she changed her original testimony and implicated Arthur. Since then, Gilbert has testified under oath to the murder. Gilbert said he had an affair with Wicker and soon agreed to kill her husband. State courts, however, have ruled that Gilbert’s confession was not credible, and have opposed DNA testing on an item recovered from the crime scene that could identify who was actually involved in the crime.  Arthur's attorneys have agreed to pay for the DNA testing.

NEW RESOURCES: Latest DEATH ROW USA Report Now Available

The latest edition of the NAACP Legal Defense Fund's Death Row USA shows a decrease of 31 inmates between January 1 and July 1, 2011.  Over the last decade, the total population of state and federal death rows has decreased significantly, from 3,682 inmates in 2000 to 3,220 inmates in 2011.  The percentage of Latino inmates facing execution, however, has steadily increased over the years.  In 1991, Latinos made up 6% of the nation's death row.  In 2011, Latinos or Latinas comprised 12% of death row inmates.  The states with the largest number of Hispanic death row inmates are California (167), Texas (95) and Florida (37).  The report also contains information on the race and gender of the victims in the underlying murders for those executed.  In cases where an execution has occurred since 1976, 77% of the victims in the underlying murders were white, even though generally whites constitute slightly less than 50% of all murders.

Recent U.S. Supreme Court Decision Highlights Representation Problems in Alabama

On January 18, the U.S. Supreme Court (7-2) ordered a new hearing in federal court for Cory Maples, an Alabama death row inmate whose state and federal appeals had been rejected by lower courts because his lawyers quit and missed a critical filing deadline. Writing for six of the Court’s Justices, Justice Ruth Bader Ginsburg highlighted the poor quality of representation offered by the state in death penalty cases. The opinion stated, “Alabama sets low eligibility requirements for lawyers appointed to represent indigent capital defendants at trial…. Appointed counsel need only be a member of the Alabama bar and have ‘five years’ prior experience in the active practice of criminal law.’ Experience with capital cases is not required.” Justice Ginsburg also noted that Alabama is nearly alone in not guaranteeing representation in post-conviction proceedings, electing instead “to rely on the efforts of well-funded [out-of-state] volunteers.” Finally, the opinion emphasized that appointed counsel in death penalty cases are severely under compensated by the state: “Although death penalty litigation is plainly time intensive, the State capped at $1,000 fees recoverable by capital defense attorneys for out-of- court work. Even today, court-appointed attorneys receive only $70 per hour.”  The Court finally noted that "On occasion, some prisoners sentenced to death receive no postconviction representation at all."  Maples's underlying claim, which he was prevented from appealing because his absent lawyers missed the deadline, was that he received ineffective representation at trial.  Neither of his trial counsel had ever tried the penalty phase of a capital case.

Supreme Court Orders New Hearing for Death Row Inmate Abandoned by His Lawyers

On January 18, the U.S. Supreme Court (7-2) ordered a new hearing in federal court for Cory Maples, an Alabama death row inmate whose state and federal appeals had been rejected by lower courts because his lawyers quit and missed a critical filing deadline. Copies of an Alabama court ruling in Maples’s case were sent to a volunteer New York law firm handling his appeals but were unopened by the mailroom and returned to the state court because the attorneys representing Maples had left the firm. Justice Samuel Alito, concurring in the Court's opinion, wrote that the circumstances surrounding this case created a “veritable perfect storm of misfortune.” On behalf of the majority, Justice Ruth Ginsburg wrote, “Maples was disarmed by extraordinary circumstances quite beyond his control. He has shown ample cause, we hold, to excuse the procedural default into which he was trapped when counsel of record abandoned him without a word of warning.”