Gaining Death Penalty Expertise Means Learning on the Job

Attorney Joanne Descher was practicing securities law when she first learned she had been appointed to represent a Missouri death row inmate in his federal appeals of two first-degree murder convictions.

She had no experience in the highly specialized body of law and procedure surrounding habeas corpus petitions, the crux of her client Marlin Gray’s federal appeal. But she dived into the case in April 1995, found mentors and speed-learned the law.

“I realized the magnitude of the appointment, that it was a life and death situation,” she said. “I had to try the best I could.”

Few lawyers are well-versed in habeas corpus petitions, an odd hybrid of civil and criminal law, which are complex, time-consuming and not at all lucrative.

Judges understand they’re not likely to get an expert from the pool of 6,000 lawyers admitted to practice in federal court in the Eastern District of Missouri. Only 100 of them have any experience with habeas corpus petitions, where federal courts are asked to examine state court proceedings for constitutional problems. Of that number, 40 are routinely tapped for federal death penalty defense cases.

“It’s an expertise that’s hard to come by,” said James Woodward, federal court clerk for the Eastern District in St. Louis, which assigned Descher the case. But most federal judges in St. Louis are impressed by civil attorneys’ vigorous representation of their clients, he said.

Descher represented Gray because she had agreed to take some pro bono cases as a condition of being admitted to the federal court bar here. Although she felt under-qualified, she later had a co-counsel to lean on.

Few lawyers volunteer for defense in death penalty trials or appeals because they are economically and emotionally demanding, and not financially rewarding, said Sean O’Brien, who heads the nonprofit Public Interest Litigation Clinic and has handled such cases since 1983.

O’Brien says it’s a “horrible idea” for civil law practitioners to be thrown into habeas corpus petitions, a specialty he says is fraught with procedural land mines that trip up even skilled lawyers and may cause a client to lose a case. And, they’re up against seasoned specialists in the attorney general’s office.

“There are a thousand ways to accidentally lose a case,” said O’Brien, a visiting professor at the University of Missouri-Kansas City law school.

Ronald J. Tabak, pro bono coordinator for the firm of Skadden in New York, said civil attorneys should argue habeas corpus petitions in capital cases “only if” they are extensively trained and mentored by experts in criminal and capital law.

Legal experts in Missouri and across the U.S. say prisoners have even fewer avenues for habeas corpus relief after a 1996 federal law was enacted in response to calls to speed up the death penalty process, which averages eight to 10 years.

The Anti-Terrorism and Effective Death Penalty Act of 1996 severely restricted the legal basis for arguing that lower court proceedings should be reviewed for constitutional errors. It shortened deadlines and limited what federal courts could consider in an appeal.

And many cases are hampered by incompetent trial attorneys, said David Elbaum, a New York civil lawyer appealing the murder conviction and death sentence of Reginald Clemons, Gray’s co-defendant in the 1991 killings of two sisters at an abandoned Mississippi River Bridge in St. Louis.

“Arguments are not made, leads are not followed through, objections are left out,” he said.

During the appeals process, Woodward added, “It’s not just a matter of finding mistakes at trial, but isolating the claims that can be redressed by the federal court.”

Gray exhausted his appeals after 10 years and was executed on Oct. 26.

Clemons’ attorneys, including a former federal prosecutor, are continuing his appeals.