Hard Work, Low Pay : Death Row: Few Lawyers for Big Task

When James A. Pierce, an indigent with an IQ of 43, was accused of fatally stabbing an elderly woman in Birmingham, Ala., the state paid only $150 for his constitutionally guaranteed defense.

A young lawyer named Robert R. Bryan borrowed $25,000 so that he could afford the court appointment to represent Pierce.

The jury sentenced Pierce to death, but the Alabama Supreme Court later agreed with Bryan and his expensive forensic psychiatrists that Pierce had never been mentally competent to stand trial. Pierce was placed in a mental hospital.

Few of the nation’s record number of 1,982 Death Row inmates are lucky enough to get a lawyer willing to go into debt to assure that every legitimate appeal is pushed.

A Third Have No Lawyers

And as many as one-third of inmates on “The Row” have no lawyers, Tanya Coke of the NAACP Legal Defense and Educational Fund estimated.

“We are on the cusp of a new era in death-penalty defense work,” Coke said. “Many of the constitutional challenges have passed, and we have to work with individual cases. Now we are in the trenches in hand-to-hand combat.”

The paucity of lawyers to handle individual cases occurs because states pay little for the defense they are required to provide for an indigent’s trial and first appeal to the state’s Supreme Court, and they pay less or nothing for later appeals.

Alabama now pays $600 for the trial and first appeal, rather than the $150 Bryan got, and other states in the South pay comparably low rates. That kind of fee, according to Steve Bright of the Atlanta-based Southern Prisoners Defense Committee, attracts only “totally inexperienced lawyers or old broken-down alcoholics,” and bad trial work means more appeals.

Defenders Are Swamped

With 300 or so new death sentences a year (about 30 annually in California) and about half of the Death Row inmates moving into the unpaid appeal stage, the nation’s two dozen or so civil rights lawyers who work full time on capital cases are swamped.

Those civil rights lawyers, who work for organizations such as the Legal Defense and Education Fund, the American Civil Liberties Union, the Southern Prisoners Defense Committee or Team Defense Project Inc., need help.

So the American Bar Assn., which has about half the nation’s 700,000 attorneys as members, has launched a major drive to recruit volunteers to take the life-or-death cases pro bono, or without charge.

Attorneys are not exactly scrambling to volunteer.

When former U.S. Atty. Gen. Benjamin Civiletti wrote the 52,000 members of the ABA’s litigation section soliciting volunteers last fall, 1,200 responded, most of them requesting more information. Only 350 committed themselves to take a case.

Recruiters say the reluctance is understandable. The cases require an average of 2,000 hours of complex legal work, and cost an average of $13,500 in out-of-pocket expenses, plus several thousand dollars in lost fees for the time spent.

Although the ABA, ACLU and others provide resource help such as sample briefs and videotapes, the appeals require a certain expertise. And the emotional costs to a lawyer who may have to watch his client die if the appeals are lost “border on the inhumane.”

Some public agency lawyers quit rather than take capital case assignments. Most volunteers stick with their cases, but many private lawyers simply decline to volunteer because of the emotional burden.

Nevertheless, ABA project director Esther Lardent plans to recruit and organize pools of volunteers in major cities, including Los Angeles and San Francisco, and to match them with coordinators for capital cases in crisis states within the year.

“The wave is just beginning to crash at post-conviction appeals, and some states that haven’t had a problem are going to very, very soon,” Lardent said.

The appeals are important, Lardent said, resulting in reversals for one-third to one-half of capital cases because of major constitutional errors in trials.

Ninety-six people have been executed since the U.S. Supreme Court sanctioned reinstatement of the death penalty in 1976 and 37 states adopted it, and Coke said that so far none has been put to death without a lawyer.

“But the situation is so chaotic in places like Texas that it could happen any day,” she said. “We are literally looking at people with execution dates and discovering that up to the day before, they have no attorneys.”

The Southern Prisoners Defense Committee’s Bright, a 39-year-old former Washington public defender who works seven days a week for $14,000 a year defending Death Row inmates, believes that some Texas inmates already have acquiesced to death, waiving final appeals only because they lacked lawyers.

The situation is less severe in California, which has the third-largest Death Row population, with 212 inmates at the end of 1987, following Florida with 277 and Texas with 257.

But because the newly conservative state Supreme Court is affirming more death sentences (nine out of 13 capital cases in its first year), and more cases are moving toward federal appeals, problems could be imminent here.

“We do need a surplus of lawyers ready to go,” said Michael G. Millman, a former deputy state public defender who heads the California Appellate Project (CAP), established by the State Bar and the Supreme Court in 1984 to recruit and advise private lawyers who will handle appeals for Death Row inmates.

“If we don’t take the steps now to deal with it, expanding the pool of available attorneys,” he said, “in six months to a year we could have a crisis.”

Because California enacted its new death penalty statute later than Southern “Death Belt” states, only one of the state’s Death Row inmates, Robert Harris, has advanced to federal appeal proceedings, and he has an attorney.

Despite budget cuts under the Deukmejian Administration, California’s 12-year-old state public defender office, according to acting Public Defender Monica Knox, still handles 25% to 30% of the appeals for the state’s Death Row inmates.

Plans to Continue

And Knox said the office plans to continue representing inmates, even if they go into federal appeals.

Millman finds private attorneys to take up the slack, screening them for appointment by the state Supreme Court and payment by the state of $60 an hour, which he is working to increase to $75 hourly next year.

Knox and Millman also believe that state deputies and private lawyers who stick with clients beyond the state Supreme Court stage can qualify for state or federal pay under the national Criminal Justice Act.

Convincing volunteer lawyers to take cases in the crisis states is considered only a stopgap solution. But Lardent and others will continue their recruiting until they persuade states to pay for adequate defense through the last possible appeal and clemency proceedings.

To lure volunteer lawyers, the recruiters must overcome formidable complaints that the life-or-death cases take too much time, money, expertise, emotional toll, and, in the South, can cause loss of business and community standing. The biggest of these deterrents are time and money.

Much Time Required

The recruiters are frank about the time required.

Attorney and researcher Robert Spangenberg of Newton, Mass., said a study he conducted for the ABA in 24 states showed that lawyers averaged about 2,000 hours on post-conviction appeals for each Death Row inmate.

“I have already spent at least 3,000 to 3,500 hours on this case,” said Michael A. Millman (no relation to California’s Millman), a professor of constitutional law at the University of Maryland Law School in Baltimore, who represents Florida Death Row inmate Ernest Fitzpatrick Jr.

“That is 1 1/2 years of billable time, when you consider that a very busy private lawyer bills about 2,000 hours a year,” he said. “And it is conceivable that I have not done one-fourth of the case.”

Millman was asked to take on Fitzpatrick’s appeals by Florida’s state-funded office of the Capital Collateral Representative, which must call on volunteers to handle about half of the 150 post-conviction appeals on the nation’s largest Death Row.

Millman, 43, with supervised help from his clinical law students, won a reversal in the Florida Supreme Court for Fitzpatrick, who he said is mentally ill with an IQ of 57. A Pensacola jury re-sentenced Fitzpatrick to death; the Florida high court again reversed the sentence, and Millman is awaiting another re-sentencing hearing.

“I can do this because I get a salary for teaching,” Millman said. “But it would be virtually impossible for a person in a small firm or solo practice to take on the hours that are in there to be done.”

The cases also cost money.

Spangenberg’s study showed that the volunteer lawyers not only received no pay for their efforts, but also spent an average of $13,500 of their own money for expenses such as hiring expert witnesses or traveling to distant courtrooms.

Although California’s $60 hourly stipend glitters to those who take on post-conviction appeals at no charge, major firms accustomed to billing at $200 to $300 or so an hour still consider a Death Row case a donation of talent.

The lawyer who borrowed money to defend the Birmingham man years ago, Robert Bryan, now lives in San Francisco and represents three of California’s Death Row inmates.

Fee Not Attractive

Bryan, whose bill at $300 an hour or flat fees of $75,000 for paying customers in death cases, said $60 an hour can sound more attractive than it actually is.

“On my last one, I ended up getting paid about half. It’s $60 an hour, but they (the Supreme Court on CAP’s advice) reduced the time I claimed,” he said. “But I would still do these anyway. The quality of justice should not depend on somebody’s bank account.”

The current $60 hourly fee (now rising to $75 in some areas) paid in some federal courts does not motivate lawyers in large firms either.

“We don’t take any of these cases with the idea that we are going to make money or even cover our expenses,” said Jeffrey Coleman, who chairs Illinois’ committee studying solutions to the Death Row attorney problem.

His 250-lawyer Chicago firm, Jenner & Block, now represents seven condemned inmates in Illinois, which has 109 on Death Row, and one in Virginia, which has 36.

Help From His Friends

David Lane, a former New York City public defender who recently set up a solo practice in Denver, said he has been able to handle a Georgia capital appeal only because he can persuade New York forensic psychiatrist friends to testify at no charge and sometimes pay their own travel expenses.

Lane represents Walter Curry and has just lost a post-conviction appeal in state court, which he will now take to the Georgia Supreme Court.

“These cases cost several thousand dollars and the state doesn’t give you a nickel,” said Lane, who is also recruiting other Denver lawyers to represent Texas inmates.

“It is definitely affecting my practice,” he said. “I started when I was a supervisor in the public defender’s office without a full caseload of my own. Now it takes hours and money. The travel expenses alone are a killer for the solo practitioner.”

Although lawyers in Spangenberg’s study recommended that nobody in a firm with fewer than 10 lawyers take a death penalty appeal because of the time and money involved, California’s Millman has relied not only on large firms and the ACLU Death Penalty Projects in Los Angeles and San Francisco but partially on a handful of “cottage industry” solo practitioners.

Busiest Defender

The busiest of these is Mark Cutler, 42, a former state deputy public defender who operates out of his home in Cool, 40 miles northeast of Sacramento, with a personal computer and a stack of file cards detailing California Supreme Court death penalty rulings. He drives or flies to court hearings around the state about three times a year.

Cutler has five capital appeals, works 40 to 50 hours a week on them and earns through CAP roughly what he earned as a state lawyer. (Knox said deputies in her office earn from $35,000 to $60,000, with most in the mid-$50,000 range.)

“I am in a unique situation,” Cutler said. “With no overhead and my background--15 years in criminal defense--I am able to do a decent job and do it efficiently in a way that I can make a comfortable living.”

But even Cutler said he could not afford much unpaid work. He said he would not accept any more California cases until one he now has concludes, and that he has no urge to volunteer his services in the South.

Atlanta’s Bright conceded that few attorneys are willing to do such difficult work for so little money.

More Interested in BMWs

“Most lawyers,” he said tiredly, “are more interested in driving a BMW than in seeing that justice is done.”

Many civil lawyers balk at volunteering for a capital case because they lack criminal expertise, and even criminal experts say they do not know enough about appellate work. Lardent and other recruiters said that is a weak excuse.

“Competency at the trial level is an art that can only be obtained through experience. But the appeals process is quite different. You don’t have to think on your feet. And we provide the resources--handbooks, manuals, videotapes, sample briefs, so that you don’t have to re-invent the wheel,” said Gary Alexion of the Atlanta ACLU office. “And sometimes we pair attorneys, a civil one with a criminal one, because it usually takes two to do it.”

Allan Van Gestel, a civil litigator of Boston’s 225-lawyer Gooden, Proctor & Hoar, and chairman of the city’s new brown-bag lunch group of lawyers working on Death Row appeals, scoffed at the idea that a civil lawyer cannot handle a complex criminal appeal.

“I don’t think it is any more complicated than an environmental case, or an antitrust case, or a hostile takeover,” he said. “It is research, writing and briefs.”

Life-and-Death Matters

“I found it one of the most rewarding things I have ever done as a lawyer,” said Van Gestel, 52. “I had the sense that I was doing what lawyers are supposed to do--working in the system in a matter that was literally life and death.”

Although Massachusetts and New York lawyers, whose states have no death penalty, and other Northern attorneys feel comfortable taking on capital appeals, lawyers in the South are slow to offer their help, Southern civil rights attorneys said, because of the political climate as well as the time, money, and skill involved.

“In the South, lawyers don’t understand why people do this. Their idea of pro bono is to represent the symphony on its tax returns, something totally noncontroversial,” said Bright, who is originally from Kentucky. “Representing people on Death Row has no tangible business benefit.”

Larry Helm Spalding, who was president of the Florida ACLU before the state hired him for its unique Capital Collateral Representative office, agreed. “Lawyers are afraid that there is an economic factor--a real or imagined backlash from paying clients if they take death penalty cases,” he said.

Bumper Sticker Parody

“Down here they parody the seat-belt law with bumper stickers that say, ‘I will buckle up when Bundy does. It’s the law,’ ” said Spalding, referring to Ted Bundy, who has been on Florida’s Death Row for 10 years.

Another major deterrent to would-be volunteer attorneys is the heavy emotional toll the death penalty cases extract.

“I’ve never even met our client, but he populates my dreams,” said Sara-ann Determan, chairman of the ABA project steering committee, whose 260-lawyer Washington firm of Hogan Hartson represents Florida convicted serial killer John Ferguson. “I have practiced law for 20 years and no client ever was in my dreams.”

The full-time Death Row lawyers, such as Robert McGlasson, a 30-year-old Texan who opened the Southern Prisoners Defense Committee outpost at the University of Texas in Austin, consider the work a permanent “roller coaster ride.”

Millard Farmer, who founded Atlanta’s Team Defense Project Inc. and has observed two clients’ executions in Angola, La., considers the personal trauma “fuel in my boiler, making me see more than ever how right it is to fight.”

Challenge Energizing

And San Francisco’s Bryan, who says he runs five miles a day and rows on Sundays to cope with the stress, said the challenge energizes him.

“The kind of work I do is analogous to a surgeon who has a patient on the operating table bleeding to death,” he said. “I am in the business of saving lives, and in the process saving some innocent people.”

But even the professional offices suffer from emotional burnout. Knox’s 65-lawyer state public defender office in California has lost “three or four” deputies who quit rather than take capital cases. Spalding’s 13-lawyer Florida office has had a 100% turnover in its 2 1/2-year existence, and he is considering putting a psychologist on retainer to provide group therapy after an execution.

Emotional Pressure Builds

In California, the emotional pressure is building as the conservative new Supreme Court affirms more convictions, making executions loom near for the first time in 20 years.

“When you are talking about just an appeal, the lawyer is able to keep a detachment. You are working with paper and it’s almost an intellectual approach,” Millman said.

“But if you are talking about setting execution dates and moving the guy into the cell next to the gas chamber, you find yourself dealing with a whole set of emotional demands.”

INMATES ON DEATH ROW WASHINGTON D.C. (no death penalty) States with death row: WASHINGTON -- 8 OREGON -- 5 CALIFORNIA -- 212 IDAHO -- 14 NEVADA -- 39 MONTANA -- 7 UTAH -- 7 ARIZONA -- 64 WYOMING -- 4 COLORADO -- 4 NEW MEXICO -- 1 NEBRASKA -- 13 OKLAHOMA -- 79 TEXAS -- 257 MISSOURI -- 55 ARKANSAS -- 30 LOUISIANA -- 46 ILLINOIS -- 109 MISSISSIPPI -- 43 INDIANA -- 45 KENTUCKY -- 33 TENNESSEE -- 65 ALABAMA -- 91 OHIO -- 75 GEORGIA -- 107 FLORIDA -- 277 PENNSYLVANIA -- 90 VIRGINIA -- 36 NORTH CAROLINA -- 77 SOUTH CAROLINA -- 43 MARYLAND -- 20 DELAWARE -- 6 NEW JERSEY -- 28 CONNECTICUT -- 1 States that have abolished the death penalty: NORTH DAKOTA KANSAS MINNESOTA IOWA WISCONSIN MICHIGAN NEW YORK WEST VIRGINA MAINE RHODE ISLAND MASSACHUSETTS ALASKA HAWAII States with death penalty but no condemned inmates: SOUTH DAKOTA VERMONT NEW HAMPSHIRE INMATES BY RACE

Black-- 814 41%

White-- 1,020 51%

Latino-- 113 6%

Indian-- 26 1%

Asian-- 9 1% INMATES BY GENDER

Male-- 1,962 99%

Female-- 20 1% COMMUTATIONS

Sentences Declared

Unconstitutional-- 558

Reversals Based on Other Grounds-- 1,209 INMATE DISPOSITIONS

Executions-- 93

Suicides-- 21

Natural Causes-- 33

Commutations-- 49

Source: NAACP Legal Defense and Education Fund, December, 1987