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While the U.S. Constitution declares that criminal defendants have a right to counsel at trial, there is no constitutional guarantee that a lawyer will be appointed in state post-conviction proceedings, where mistakes that occurred at trial should be corrected. Hundreds of death-row prisoners do not have access to counsel to challenge their convictions and sentences.
That is where the American Bar Association’s Death Penalty Representation Project comes in. The project, created in 1986, addresses the lack of representation available to death-row prisoners by recruiting volunteer law firms and providing them with training and resources. The project also works on systemic reform of state and federal counsel systems.
“Our legal system is intended to provide a fair trial, and in many cases, it is failing,” said Joanne Hepburn, a trial attorney in the Seattle office of K&L Gates.
“For men and women who have been sentenced to death because they had the bad luck of being up against an unethical prosecutor or they could not afford the defense they needed, volunteer lawyers are their only hope for avoiding execution,” added Hepburn, whose firm has taken on several capital cases at the urging of the Death Penalty Representation Project.
Project Director Robin Maher said the group has always faced the daunting challenges of a large caseload, not enough volunteers and limited resources. But recent events have made things even worse.
The federal government sequester is having a “very serious and detrimental impact” on the justice system, Maher said. Because of significant funding cuts and personnel furloughs, public defenders don’t have the ability to handle all the cases of indigent defendants who need legal representation.
“There’s not enough money for the necessary litigation costs or enough skilled lawyers for the cases, and that means we are getting a lot of requests from lawyers and judges for assistance,” Maher said. “There already was a huge gap between available resources and the need for legal representation — now there’s an even bigger gap.”
More requests for help means a greater need for volunteers.
When the financial crisis struck in 2008, the Death Penalty Representation Project experienced a decline in the number of firms volunteering for cases.
“We had a very difficult time recruiting when law firms were unsure whether they were going to be able to maintain their own staffing levels,” Maher said. “There was so much chaos and uncertainty in the legal community. It was not a good environment for placing pro bono cases of any kind.”
Although the legal community and economy have recovered since then, law firms are still cautious about tackling lengthy pro bono cases. It takes a serious investment of time and energy by project staff to place a single death penalty case. What convinces the best firms, Maher said, is an understanding of the tremendous need and a realization that the experience will benefit the firm in important ways.
“These cases provide terrific opportunities for professional development and team building while also providing legal assistance to an underserved and desperate population,” she said. “It is always a unique and worthwhile experience for volunteer lawyers and law firm staff.”
Steven Schneebaum, chair of the Death Penalty Representation Project, said firms that are educated about the process can overcome fears that these cases can be too expensive, drain resources, require too big a time commitment and take an emotional toll on staff.
“There can be a great deal of initial resistance,” he said. But he added that the experience is a learning opportunity for the whole firm.
Schneebaum, who first got involved in death-row representation in the 1990s, has served as first-chair attorney on three capital cases at the project’s request.
“The biggest thing that everyone who has done these cases comes away with is the feeling of gross inequality,” he said. “It’s just shocking to realize the vast coercive power the state has compared with the hobbled difficulties that any defendant is going to have to fight against.”
Hepburn said that when she first got involved with the Death Penalty Representation Project, she was surprised by the extent of the deficiencies in the justice system. “I had, of course, heard about cases where prosecutors acted inappropriately or defense attorneys were inadequate, but I did not expect it to be as widespread as I discovered it was,” she said.
Schneebaum said that most lawyers feel they ought to give back to the community by doing pro bono work and that this is the area where the need is greatest.
“It’s a tremendously rewarding area in that even trying and failing makes a huge difference. It keeps the system more honest,” he said.
“You are literally employing your skills to save someone’s life, and it may not work,” he added. “All do not live happily ever after.”
Maher and Schneebaum both emphasized that success for law firm volunteers is not only measured by whether the client is exonerated.
“We are careful to talk about what success means in these cases. It doesn’t always mean winning a new trial or securing a new sentence, although many law firms have had that experience,” Maher said. “Good lawyers ensure that our system of justice operates fairly, and no one facing a possible execution should be without an advocate. For the prisoners who we are trying to assist, just having the chance to find some justice in the courts is a kind of success they will not have without a lawyer.”
There is no requirement for law firms to have prior criminal or death penalty experience to handle a case. Post-conviction proceedings are civil in nature, so most law firm lawyers use the skills and experiences they already possess. The project also offers its volunteers specialized training as well as the assistance of an experienced capital defender who will work with the firm on the case.
“We know how to help law firms manage these cases, handle them in a time-efficient and cost-efficient way, and make sure they have a rewarding experience,” Maher said. “That is mostly done by making sure they have the kind of resources and support that we provide.”
One new resource is the Death Penalty Representation Project’s National Capital Standards Database, a secure and confidential repository for historical and current capital defense standards. The website contains standards and guidelines, training materials from conferences, and articles written by capital defenders, some from decades earlier. The documents are in a standardized format, text-searchable, and indexed by author, subject, location and focus, among other things.
“It’s really a one-of-a-kind resource,” Maher said.
Emily Williams, senior staff attorney for the project, said the database is a critical tool for evaluation of ineffective assistance of counsel claims, in which an attorney must show whether the performance of his client’s trial lawyer met the prevailing norms for representation at the time of the trial.
For more recent trials, lawyers and courts can refer to the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, adopted in 1989 and revised in 2003. But because of the lengthy nature of death penalty appeals, some cases involve trials that occurred in the 1980s, and attorneys need older standards for reference.
“We’ve had a fantastic response from the capital defender community,” Williams said. “It really seems to be getting used. The feedback we’ve gotten is very positive.”
She said the database contains about 4,500 documents, with an additional 1,000 in the process of being indexed for posting. The site first posted national materials and is now adding state materials.
“Once the state defenders see our site, they get excited and they send me additional materials,” Williams said. “The more materials we can get, the more useful it will be.”
Despite being a group whose mission deals so intimately with life-or-death cases, the Death Penalty Representation Project struggles with limited funding and a small staff.
“Over the years, our work has expanded as the demand for our assistance grew, but we have not been able to commensurately expand our budget and our staff,” Maher said. “We have to struggle with limited resources and the frustration of not being able to help everyone who needs us.”
She added that the group is constantly seeking new sources of funding. “We’ve learned to do a lot with a little, and we’ve learned to become very, very efficient, but we can always use more help,” she said.
Law firms and lawyers interested in participating in the Death Penalty Representation Project can visit the group’s website to find answers to frequently asked questions, listen to podcasts with advice from volunteer lawyers and read about volunteers’ success stories.