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.

Since then state enthusiasm and body counts have increased dramatically, up to a total of 56 executions across the country in 1995. Public sentiment is lustier, too. Last month, before Utah put John Albert Taylor in front of a firing squad, Department of Corrections staffers received so many phone calls that they finally issued a press release emphasizing that they were not looking for volunteer marksmen. In public opinion surveys, support for the death penalty has risen dramatically--at last check, 77 percent of Americans favored it, though the numbers decline when respondents are offered the option of life without parole.

Unfortunately, there are other numbers that indicate the legal spit and polish of the last 20 years hasn't made applications of the death penalty fair. Death sentences still have a great deal to do with race (40 percent of those executed since 1976 have been black, and during that time--which has seen 322 executions nationwide--there have only been four instances in which a white person was executed for killing a black person), income (close to 90 percent are indigent), and the state or county a defendant happens to call home. In Dallas County, Texas, for example, relatively few people receive the death sentence because the prosecutor there rarely seeks it. Neighboring Harris County, however, has the largest death row population of any county in the United States.

Many of those awaiting execution are mentally ill or retarded. The Supreme Court did rule in 1986 that it was illegal for states to kill the insane, but the standard is less than scrupulously observed. In one case, involving a schizophrenic man, the state of Mississippi has a track record of giving the defendant medication every time he's about to appear in court or have an evaluation so that he will appear well enough to kill. Mere incompetence seldom poses any impediment at all. Then-Arkansas Governor Bill Clinton received only a smattering of adverse publicity in 1992 for presiding over the execution of Rickey Ray Rector, a man who had blown away part of his own brain and had no sense of either mortality or the passage of time. And the state of Florida has been pushing for years to execute a man named Donald Gunsby, who has an IQ of 57. (After being represented at trial by an attorney who begged to be taken off the case, Gunsby had his appeal taken up by lawyers from the local Popham Haik firm, who have won him a new trial.)

There's a maxim among lawyers and activists who work on capital cases: It's not the worst criminals who get the death penalty, but those with the worst attorneys. Most states woefully underfund their public defense systems. The deficiencies reach critical mass in death penalty cases, where the issues are complicated, the trials long, and the defendants unpopular. The attorneys assigned to the cases are often better-versed in other areas of the law; many are fresh out of law school. And the pay is not designed to attract the best and brightest--many states have caps, sometimes as low as $1,000, on the fees paid to defenders.

Attorneys, in turn, are known to have spent as little as a day in preparation. Others are simply bottom-of-the-barrel types, as a litany of horror stories attest. One defense attorney showed up drunk and was thrown in jail alongside his client. A black defendant in Georgia was assigned an attorney who had been an imperial wizard of the Ku Klux Klan for over 15 years. In another case, the defense team was so ill-prepared--having failed, for instance, to read the state's death penalty statute prior to trial--that a judge finally ruled that they were "qualified only as spectators." Here is the defense's entire closing argument from a hearing that sent a man to his death in Texas: "You are an extremely intelligent jury. You've got that man's life in your hands. You can take it or not. That's all I have to say."

The examples are outrageous but hardly exceptional. According to a study commissioned in 1991 by the American Bar Association, 40 percent of the death penalty convictions handed down between 1976 and 1991 contained constitutional errors and were eventually reversed. "And there was an analysis by The National Law Journal," says Lardent, "that found that in some states, the trial lawyers who handled death penalty cases were up to 37 times more likely to have been disciplined than other lawyers."

Very often, she continues, "It's not that somebody forgot to dot an 'i' or cross a 't.' It's the exclusion of blacks from the jury, a trial lawyer who never met with his client before the hearing, a trial lawyer who was drunk, a prosecutor who kept referring to the defendant as an illegal Mexican, people who refer to black defendants using epithets. These are not small errors. These are tremendous problems.

"One of the most extraordinary things," says Lardent, "is that in a number of cases that volunteer attorneys have handled, people were found not guilty at the post-conviction level, because the evidence was never really heard until then."

The deeper Tamara Byram immersed herself in John Sullivan's case, the more outrageous it seemed. An employment law specialist by training, she had just joined the firm of Dorsey & Whitney when she was handed a research project that would become the longest-standing case of her career. A team of Dorsey colleagues has worked on the case since 1989. "It was shocking what hadn't been done," she says. "It was one of those things where you read each page and see something worse. Then you turn the page and see something worse yet."

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