Death Row Stories

During the 1970s the Supreme Court outlawed capital punishment on the grounds that it was applied in an "arbitrary" and "capricious" manner. Now it's back with a vengeance, but as a group of Minnesota attorneys is learning, nothing has really changed.

"I am not a martyr," says attorney Joe Margulies. He has been explaining his work on the post-conviction appeals of death row inmates in the South--some 60 cases in all, with few victories to show for it--and now we have come around to the obvious question: How does he keep at it? "I really enjoy this," he says. "A defense lawyer is paid to fuck with the government. Not many lawyers get paid for doing that.

"My job," he adds, holding his hands out like he's gripping a giant basketball, "is to make the state make its case." The bare walls and distinct lack of clutter in Margulies's office at Minneapolis's Legal Rights Center give it a just-moved-into feel, though it's been over a year since he migrated north from Texas. The only personal touch is a picture of his 7-year-old son that hangs near his desk.

Margulies spent five years at a legal resource center in Austin--a small, publicly funded operation where attorneys worked on death row appeals--after finishing law school at Northwestern. There were similar outfits sprinkled all across the South until a year or so ago, when federal funding cuts forced most of them to close. Their mission was to take up the cases of death row inmates who had already had a trial and an appeal and were on their way to the death house.

"It's all-engaging," he says. "A jealous mistress. You could never justify not being at work--your client was facing execution." The experience almost wore him out. The long hours. The stress. The casual outrages of the justice system: prosecutors who hid evidence, openly biased judges, juries conspicuously selected to exclude minorities from cases where minority defendants were on trial for their lives. "My government ought not break the law," he says, leaning forward in his chair. "It makes for convictions deprived of whatever moral justification you could ever have for strapping someone down and burning them to death." The date this story is supposed to run, he offers, is the same day one of his clients is to be executed.

"The criminal justice system sees post-conviction work as the poor stepchild," says Margulies. "There's enormous institutional resistance in the courts. I thought there would be a sense that if we're going to strap this person down and fill them with poison, we should be cautious. There was none of that."

Margulies is one of around 100 Minnesota attorneys working on post-conviction death penalty appeals. Some wound up with the work because a colleague in Louisiana or Texas or Florida called with a fervent S.O.S. Most were recruited by a couple of fairly new legal aid networks, one run by the American Bar Association and the other by the Minnesota Advocates for Human Rights. Some of Minneapolis and St. Paul's largest and best-known firms have taken on cases. Northerners end up handling a large number of appeals in southern courts, explains ABA Death Penalty Project head Esther Lardent, not because Yankee lawyers are necessarily more enlightened, but because they can better afford the economic burden of the mostly pro bono work. Capital cases often need hundreds of hours of donated attention.

The attorneys who work on the cases--quite a change from the civil law many of them usually practice--talk of the long odds, the races against the clock, and the emotional peaks and valleys. "There is one case I've worked on my whole career," says Minneapolis attorney Tamara Byram. Her client, John Sullivan, is a Louisiana inmate convicted on the basis of dubious evidence in the killing of a bar patron during a 1980 robbery. "Most of my cases I work on a month to a year, then it's over. In a case like this--it's an emotional rollercoaster.

"The first time I met John in person, it was springtime, and it was muggy," she says. "I'll always remember that he made a point of buying three cans of pop for us. This is a person who had no money at all, but he bought them and put them in the sink in his cell, and he kept buying ice all day long to make sure they were cold when we arrived. A little thing, but I can't tell you the impression it made." Sullivan had been on death row for nine years by that time.

Twenty years ago this summer, the U.S. Supreme Court reaffirmed the constitutionality of capital punishment. The reinstatement followed a four-year hiatus during which the death penalty had been banned owing to the "arbitrary" and "capricious" fashion in which it was meted out: One justice had likened it to being struck by lightning. If the state was going to kill people, said the court, it had to come up with more specific guidelines as to when it could do so. Texas and Georgia were some of the first to pass new statutes; 36 more states have since followed suit.

Even after new laws were placed on the books, states were in no hurry to execute the 500 or so inmates then on death row. (The number is now over 3,000.) The tide began to turn in 1977 with the death by firing squad of Gary Gilmore, a man convicted of killing night clerks at a gas station and a motel on successive evenings in 1976. In a sense the Gilmore case took the state of Utah by surprise; the government was not pressing for the execution, which proceeded only after the courts ruled, over the objection of several interested parties, that Gilmore could indeed decline to file any appeals of his sentence.

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