By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
"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.
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."
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?"
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."
Stunned, Byram sought out the jury forewoman. She was told that jurors thought Sullivan guilty from the start. They assumed there must have been more evidence the first time he was tried, the woman told Byram; the fact that the head DA was trying the case pointed to his guilt as well. It didn't hurt the state's chances when at one point a bailiff walked into the deadlocked jury negotiations and said whoever was in the minority ought to switch over so everybody could go home. "Let's be on the safe side" was the way the forewoman summed it up for Byram. There's always an appeal if we're wrong.
That disclosure was enough to get Sullivan yet another trial. In October 1995 he was once again found guilty of second degree murder. This time the defense did try to introduce the testimony about Simp, but the judge barred most of it, calling it hearsay. Byram has not received the transcripts from that trial and doesn't know whether there will be yet another appeal.
Common sense might seem to dictate a higher standard of conduct on the part of the state in capital cases: more care in marshalling evidence, more attention to proper procedure. Not so, according to Margulies. Precisely because the stakes are so high, he says, "There is a willingness to create evidence, to pervert the rule of law to achieve your end, which is killing this guy you've demonized."
"What happens in death penalty cases is that the spotlight is on the prosecutors," says Sandra Babcock, an assistant Hennepin County public defender who used to work with Margulies in Texas. "They're high-profile cases, and there is intense pressure to win. It's easy to see why--you have a crime that's horrific, public opinion is in favor of swift and speedy conviction, and you have people clamoring for the death penalty as a remedial measure." A 1992 study by the Washington D.C.-based Death Penalty Information Center underlines the same tendency, citing case after case in which prosecutors and police coerced witnesses, secretly paid informants, and buried exculpatory evidence.
St. Paul criminal defense attorney Deborah Ellis is working on a case in which prosecutors changed a key piece of evidence just prior to trial without informing the defense. Louisiana death row inmate Glenn Ford, who is black, was convicted of the execution-style shooting of a white jewelry store owner in 1983. The case against him consisted mostly of a partial fingerprint consistent with Ford's that was found inside a paper bag at the scene. Police also found some tiny dots of chemical residue on Ford's hands--possibly consistent with gunpowder, according to the prosecution--and discovered that he had later fenced some of the goods stolen that day.
Rising from her chair, Ellis proceeds to illustrate some of the more egregious problems with the state's case. Left-handed Ford, she says, leaning over and pointing her finger like a gun, would have had to shoot toward himself, according to the bullet's trajectory. As for the trace chemicals on his hands, "They could have come from a car battery. They could have come from the goods he handled. They could have come from anyone else who handled a gun."
Thin as the material evidence was, the linchpin of Ford's defense was the question of timing. The hour of the victim's death had been fixed by the testimony of a local coroner and of a friend who had spoken with the man on the phone shortly before finding him dead; witnesses placed Ford across town at the time. When the trial started, the state unveiled a coroner from another county, who claimed the shooting had taken place almost two hours earlier. "The poor defense attorney," says Babcock, "had a chart and everything, showing how his client wasn't anywhere near the place. Had based his entire opening argument on it. He could have asked for a mistrial. I think he realized he could have." But, she says, the case had almost bankrupted his personal practice already, and "in my opinion there was no way he could have afforded a mistrial. He needed to finish the case." Ford was sentenced to death; ironically, his alleged accomplices were released without ever facing trial.
An appeal was filed soon after the conviction. Ellis says it was pathetic. "When I got this case, I got a huge box of transcripts from the clerk of court's office," she says, raising her voice. "It was not just a few little papers. It took a couple months to read. And there was this thin little brief that had been filed. It didn't even cite the insufficiency of the evidence." Ford's case is currently pending.
The Supreme Court has spent the past decade erecting roadblocks to death row appeals. In Teague vs. Lane the court ruled that even when it establishes new standards for review, those standards do not apply to anyone who has already had a trial and direct appeal. In McCleskey vs. Kemp, when a black defendant's attorney offered statistical proof that the killers of white people were more likely to get the death penalty in Georgia, the court replied that it was not enough to prove the system was racist; proof of specific bias would have to be offered in each particular case.
But it was the 1993 Herrera vs. Collins decision that drew the most scrutiny. Leonel Herrera was accused of killing a police officer in a dispute near the Mexican border in 1981; he claimed he could present evidence that it was actually his deceased brother who had shot the cop. All appeals had failed. The Texas courts had turned down his claims. It was 3 in the morning on the day he was to be executed when his attorneys faxed the Supreme Court a stark, simple petition asserting that executing someone who was attempting a show of innocence violated the Constitution's 8th amendment guarantee against cruel and unusual punishment.
Within an hour they had a response: The Supreme Court would hear the merits of the case, but incredibly, hadn't mustered the extra vote needed to save Herrera's life. A sympathetic Texas state judge finally granted a stay just as Herrera was being strapped to a table.
The Court's eventual ruling was that claims of innocence are not a constitutional matter; the opinion made a tiny exception for cases where there are "'extraordinarily high' and 'truly persuasive' demonstrations of 'actual innocence.'" Any broader standard, reasoned the majority, would amount to second-guessing of state courts and cause a disastrous judicial logjam. In a dissenting opinion that he read aloud, Justice Harry Blackmun said the court had missed the point: "The execution of a person who can show that he is innocent comes perilously close to simple murder."
Later Blackmun offered a more encompassing condemnation. "Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved, and the need for regulation eviscerated," he said in 1994, "I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.... The death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.... I believe that the death penalty, as currently administered, is unconstitutional."
Historically, one of the roles of federal courts has been to keep an eye on the state courts, where judges are frequently elected and generally more subject to popular pressure. Now Congress is entertaining proposed revisions to federal habeas corpus standards that would effectively cut off most federal appeals. The provisions appended to the latest House version of the Clinton administration's anti-terrorism bill would narrow the types of claims the federal courts could remedy (it would no longer be enough to claim a state court had erred; appellants would have to demonstrate the court had acted "unreasonably"), reduce the time frame for filing to a year after a state appeal in most cases, and eliminate nearly all subsequent appeals.
"Right now there are eight reasons why the federal courts would have to hold a hearing," explains Babcock. "The new proposal would do away with all of that. The federal court would almost never hold evidentiary hearings. It would require the federal courts to defer to the states' conclusions regarding the facts and the law. The effect is going to be that state court convictions will be insulated from federal court review. State courts traditionally have not been the best enforcers of the Constitution, and it would only get harder for us to uncover state misconduct and other constitutional claims.
"These laws would clear their docket of a lot of cases," she says, waving her hand like a broom. "It's just an abdication of responsibility." If the new proposal had been in effect in 1992, she points out, it's unlikely that a federal court would ever have heard the case of Ricardo Aldape Guerra.
Officer J.D. Harris was patrolling a Latino neighborhood in Houston one hot summer night in 1982 when he came across a stalled car. Harris ordered the passengers--Aldape and a man named Roberto Carrasco Flores--to put their hands on his car. One of them pulled a 9-mm pistol and shot Harris three times in the head. As the two ran from the scene of the crime, one of them killed a bystander with the same gun.
Police caught up with the pair about an hour later. Carrasco fired the 9-mm at another officer before being shot and killed by return fire. When his body was searched, police found the gun in his hand and Harris's .357 in the waistband of his pants. Aldape was discovered hiding under a horse trailer, a .45 pistol lying nearby, wrapped in a bandanna.
The state charged Aldape--an undocumented worker from Mexico with a clean record--with capital murder, despite the fact that none of the ballistics matched the gun found with him. Prosecutors argued that somehow the two had switched guns and that Aldape was the one who had shot Harris and the bystander. They put witnesses on the stand, some of them as young as 14, to point the finger at him. He was convicted and sentenced to death in October 1982. His conviction was affirmed in 1988 and it looked like his case would be rubberstamped into oblivion when Babcock--fresh out of law school and employed by a Texas legal resource center--got involved in 1991. An execution date was looming just months away.
She hired a Spanish-speaking investigator, and the two drove around Houston in his truck looking for the witnesses who had originally testified against Aldape. "It took a lot of time, a couple months," she says, "but it was really fun. We found out that the police had started out their investigation by rounding everyone up in this neighborhood. That they took statements from some of them in English, even had some of them sign prepared statements. One woman signed a statement in English even though she was completely illiterate. She couldn't even speak English."
Other witnesses told Babcock that their first statements had incriminated Carrasco. But when police learned that he was dead, they came back and coerced the same witnesses to incriminate Aldape, telling one woman they would take away her infant daughter if she didn't cooperate. Others were threatened with arrest. Then, when they had assembled a compliant group of witnesses, says Babcock, "they put everybody in a room and paraded my client through in handcuffs before the lineup."
With the pro bono assistance of a prominent Houston firm, Babcock put together a 250-page brief detailing the new evidence and filed it with the Texas Court of Criminal Appeals. The very next day, the judge denied relief. "I'm convinced he didn't read it," says Babcock. "The judge was just worthless. There was no explanation, no findings of fact." A cop was dead; that seemed to be all anyone wanted to know. "Our investigator talked to one officer," she says, "who said it was his opinion that even if my client wasn't the shooter he deserved what he got because he was there and somebody had to pay. He gave no statement."
Finally, in 1992, a federal judge agreed to hold a hearing with the original witnesses. Appalled by what he heard, he reversed Aldape's conviction. In the accompanying opinion, he wrote, "It is clear to this court that the mood and motivation underlying the police officers' conduct arising out of this case was to convict Aldape for the death of officer Harris even if the facts did not warrant that result.... The prosecutors' conduct was equally rank.... The police officers and prosecutors had a duty to accurately record the statements of the witnesses, to fairly investigate the case, and to disclose all exculpatory evidence. Moreover, they had a duty not to prosecute an innocent man. They failed in these duties."
Aldape is still sitting on death row waiting to see whether the state will retry the case. "I'm sure they will," says Babcock. "The chief of police in Houston and the Harris County District Attorney, who is a national spokesperson for the death penalty, wrote to the attorney general's office and asked them to appeal it." Aldape is 34 now and has spent more than 13 years of his life under a death sentence.
"People could say the system worked in this case," says Babcock, but, "so much could have gone wrong." She points out that the Aldapes of the future will likely face an even tougher battle. The resource center that handled his case is closing down. And habeas corpus revisions of the sort Congress is considering might have forestalled the appeal that eventually overturned his conviction. "Right now," she says, "the way the habeas statute is worded, the judge in the Aldape case had to hold a hearing. Under the new statute, he would not have been required to hold a hearing. In fact, he would have been required not to hold a hearing unless we could prove that no reasonable juror could have voted him guilty based on the new evidence. It's quite possible he would have been executed by now."