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.

Sullivan's entire trial--jury selection, hearing, and verdict--was completed in one day. The sentencing phase, a critical moment in any case where the death penalty is sought, was concluded before lunch the next morning. Records kept by his second attorney (appointed by the court after his predecessor repeatedly showed up drunk) indicate that he spent a total of 10 and a half hours preparing for trial. He made no opening statement and put just three people on the stand, none of whom were material witnesses. (Says Byram: "We spend more time preparing to try a misdemeanor case.")

The attorney never conducted any investigation and did not mention at trial that Sullivan was schizophrenic, a fact that might have saved him from a death sentence. Only when Sullivan asked to take the stand so he could beg to be executed--to protest "politics mingling with the criminal justice system," he said--did the question of competency come up. Judge Frank Shea, a figure notorious in Louisiana legal circles for once pulling a gun on a defendant in his courtroom, then turned to Sullivan and asked, "You don't have any feeling that you are mentally ill, do you?"

"None whatsoever," Sullivan answered.

"You don't have any hallucinations that you are seeing or hearing voices?"

"Not hardly."

Over the defense's objection, Shea sent Sullivan to the stand, where he indeed asked to die. He sat on death row for eight years before an appeal--by law, an automatic feature of capital cases in Louisiana--was finally filed in his case. Part of the problem was that the court reporter insisted for years that the transcript from the one-day trial wasn't finished yet. Then there was the matter of his appellate attorney. "He was literally not doing anything until the court ordered him to do it," says Byram. "He filed a five-page boilerplate appeal, raising issues that didn't even always apply to this case. He basically punched a button on his computer--just to be able to say he had filed an appeal."

Around that time a Louisiana legal aid organization contacted attorneys at Dorsey & Whitney, who immediately secured a court order to get the transcript finished. They also mounted an independent investigation of the case. Sullivan had been convicted in May 1982 of a murder he allegedly committed while robbing a New Orleans dive called the C-Note two years earlier. He was arrested on the day after the shooting in the company of a man named Michael Hillhouse. There was only circumstantial evidence linking Sullivan to the crime--no fingerprints were even taken--but Hillhouse agreed to testify against him in return for immunity from prosecution. In addition, a bartender named Stephanie Lawery picked Sullivan from a lineup as the shooter.

The Dorsey & Whitney team discovered that when Lawery was questioned by police the night of the murder, she had given a description that didn't match Sullivan--a fact that was never shared with the defense. And they found Lawery's former boss, who had given her rides to and from the police lineups. Lawery had been unable to pick either Sullivan or Hillhouse at first, so he had helped her out. "He had BS'ed with the cops," recalls Byram, rolling back in her chair. "When she couldn't make an identification, he was told by a cop that they knew they had the right guy because they had found the gun." The officer passed on Sullivan and Hillhouse's numbers in the lineup to the man, who passed them on to Lawery.

The investigators also turned up witnesses who said that a man named George Simp, who had since died, was the real killer. One woman claimed Simp had come to her house the morning of the shooting saying he'd robbed the bar and asking to hide out for a while. Another said Simp showed up at her boyfriend's house covered in blood and looking for clean clothes. A third witness quoted a threat Simp once made on him: "If I ever see you around here again, I'm going to give you the same thing I gave that motherfucker at the C-Note."

In 1991, Byram and the Dorsey & Whitney team petitioned the Louisiana Supreme Court for a new trial on the grounds that Sullivan's counsel was ineffective and that the prosecution had withheld exculpatory evidence. "We argued that all this information led us to a different person," says Byram, "and that it would have been a different trial." The court did order a new sentencing hearing, at which Sullivan's death penalty was upheld. But it ruled that even though Sullivan's counsel was ill-prepared, his incompetence didn't make a difference in the outcome of the case and thus did not warrant a reversal. The matter was then appealed to the U.S. Supreme Court, which hears only about half of 1 percent of the death penalty cases brought before it. In a unanimous decision rendered in June 1993, the Court overturned Sullivan's conviction.

Louisiana decided to prosecute Sullivan all over again, on what appeared to be fatally flimsy grounds. Without the bartender's identification--it was a matter of public record that she had contradicted herself and was prompted--the state's entire case rested on Hillhouse, who suddenly couldn't remember a thing. The case seemed open and shut, so much so that Sullivan's defense team decided not to bring in the witnesses who fingered George Simp. The jury came back with a guilty verdict, this time for second-degree murder. "The hardest part about these cases," Byram says, "is the questions: Have I done everything I can? Did I miss a detail? We will never know whether [testimony regarding the other suspect] would have made a difference. It might have."

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