On September 19th, the Project celebrated the work of its volunteer attorneys and capital defender partners during the 2019 Volunteer Recognition & Awards Dinner.
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>> Click here to check out photos, video and more!
Every fall, the Project celebrates volunteer lawyers at its Volunteer Recognition & Awards Dinner. Pro bono firms are nominated by their colleagues for exceptional service to death row prisoners and honored with the Exceptional Service Award.
This year's Exceptional Service awards were presented to two outstanding volunteer law firms, Skadden and White & Case.
Skadden, Arps, Slate, Meagher & Flom, an international firm with 22 offices in four continents, has repeatedly demonstrated its commitment to pro bono service and death penalty representation. In 2006, the firm was one of the Project’s inaugural Exceptional Service Award winners. Since receiving that award, the firm has been unwavering in its commitment to advocacy on behalf of individuals facing the death penalty. In 2018 and 2019 alone, Skadden lawyers and staff devoted more than 4,000 hours to directly representing death row clients and hundreds of additional hours preparing amicus briefs in support of capital prisoners.
Skadden currently represents six men on death row, including Bobby James Moore, an intellectually disabled Texas prisoner who was convicted and sentenced to death in the early 1980s. When Skadden took on representation of Mr. Moore in 2015, the Texas courts routinely used unscientific stereotypes about persons with intellectual disabilities to determine whether a person was eligible for the death penalty. In analysis of Mr. Moore’s claim, the lower courts relied on this unscientific framework to support a finding that Mr. Moore was not intellectually disabled. Skadden persuaded the U.S. Supreme Court to review the case, and in 2017, the Court struck down the unscientific method of analysis and ordered the Texas courts to reevaluate Mr. Moore’s intellectual disability claim using scientific standards. Mr. Moore’s first victory was short-lived, however; in 2018, the Texas Court of Criminal Appeals (CCA) again denied Mr. Moore’s claim, still relying on unscientific standards to determine he did not meet the criteria for intellectual disability. Skadden again appealed to the Supreme Court, which in 2019 summarily reversed the CCA’s ruling as inconsistent with its prior opinion. This rare repeat success in the Supreme Court also represented a broader victory for all defendants and prisoners with intellectual disability who face the threat of an unconstitutional death sentence.
Together with the Innocence Project, Skadden also represents Texas death-row prisoner Rodney Reed, who is currently scheduled for execution in November 2019. Skadden has worked on numerous state and federal proceedings on behalf of Mr. Reed, including two U.S. Supreme Court petitions for certiorari, multiple state and federal filings, and several evidentiary hearings. When an execution date was set for Mr. Reed in 2015, Skadden was instrumental in supporting DNA litigation and filing habeas applications that resulted in a stay less than two weeks prior to the scheduled execution. Unfortunately, the CCA then found against Mr. Reed’s motion for expanded DNA testing, denying him access to testing of key evidence, including the murder weapon. With an execution date again pending, Skadden continues to fight to prove Mr. Reed’s innocence, most recently filing a § 1983 action seeking the DNA testing that has been denied by the state courts.
In addition to direct representation on individual cases, Skadden’s exceptional death penalty advocacy has extended to nearly every aspect of the judicial process, including preparing and submitting amicus briefs in support of other death row prisoners. In recent years the firm has drafted several pro bono amicus briefs on behalf of the ABA and other prominent organizations. The Project is proud to recognize the firm’s extraordinary and enduring contributions with this year’s Exceptional Service Award.
White & Case, a global law firm with more than 40 offices worldwide, is recognized internationally as a leader for its commitment to pro bono. Over the past six years, the firm has dedicated nearly 15,000 hours to six pro bono death penalty cases, including two cases taken from the ABA Death Penalty Representation Project.
In 2015, White & Case took on the case of Joe Frank Garza from the Project after Mr. Garza’s then-counsel revealed a previously undisclosed conflict of interest. Mr. Garza is a Texas death row prisoner convicted of killing a local preacher in 2000. When White & Case assumed representation, Mr. Garza’s post-conviction appeals were presumed exhausted, and an execution date had been set. The U.S. Supreme Court denied the firm’s request for a stay, so White & Case had only 90 days to investigate new grounds for a legal appeal before the scheduled execution. Through diligent work on a tight timeline, White & Case discovered that none of the evidence relied on by the state implicating Mr. Garza had been subject to DNA testing. Less than a month before Mr. Garza’s execution date, the Texas Court of Criminal Appeals withdrew the date and approved White & Case’s motion for post-conviction DNA testing. White & Case will continue representing Mr. Garza throughout the pendency of his legal appeals.
With Mr. Garza’s case still pending, White & Case again answered the Project’s call for help in 2018, when it agreed to represent Justin Underwood, a black man convicted of murdering a white woman in Mississippi in 1995. Faced with a decades-old case in a precarious procedural posture, the White & Case team dedicated 1,880 pro bono hours in less than a year to conduct a top-to-bottom review of Mr. Underwood’s case. Already more than 20 White & Case lawyers and legal services professionals have joined the fight on Mr. Underwood’s behalf, and they are currently preparing to file a petition for relief with the Mississippi courts.
White & Case’s extraordinary advocacy has also helped win relief for other individuals from their death sentences, including Charles Christopher Williams. Mr. Williams is a dual German-American citizen, and in 2012, the firm began working with Mr. Williams’ counsel to serve as amicus curiae on behalf of the Federal Republic of Germany—a role which it maintained through three levels of appeal. In its amicus briefs,White & Case addressed Mr. Williams’ Partial Fetal Alcohol Syndrome (pFAS), a diagnosis which Mr. Williams’ trial counsel never presented to the jury. White & Case argued that Mr. Williams should be exempt from the death penalty due to his pFAS diagnosis for the same reasons that the Supreme Court has already exempted juveniles and the intellectually disabled from capital punishment. When the case was heard at the U.S. Court of Appeals for the Fourth Circuit, White & Case won rare leave to participate in oral arguments as amici. Witnesses reported that “the momentum in the courtroom changed in favor of Mr. Williams“ when White & Case spoke, and the impact of their groundbreaking arguments was clear in the very favorable decision subsequently issued by the Fourth Circuit, which stayed Mr. Williams’ execution indefinitely. The court also included the amicus party in the caption of the case, which is rarely done.
White & Case’s remarkable representation exemplifies what it means to be a zealous advocate for death penalty clients, and the Project is proud to honor the firm’s commitment to justice in capital cases with this year’s Exceptional Service Award.
The Project also recognizes the extraordinary efforts of individual lawyers with the John Paul Stevens Guiding Hand of Counsel Award, which was first presented to Justice Stevens in 2011.
This year's Guiding Hand of Counsel Award was presented to Kelley J. Henry from the Capital Habeas Unit of the Federal Public Defender's Office for the Middle District of Tennessee.
Kelley Henry, Supervising Assistant Defender at the Federal Public Defender for the Middle District of Tennessee Capital Habeas Unit, has truly embodied the meaning of this award in her twenty-five-year capital defense career. Colleagues describe her not only as a fearsome litigator— one who conducted “the most devastating voir dire of an adverse witness” they had ever seen—but also as an extraordinary person committed on both a personal and a professional level to her clients.
Ms. Henry began her career in capital defense in Missouri and Arizona before joining the Tennessee Federal Public Defender’s Office in 2000. She was selected to lead the office’s capital habeas unit in 2009. Ms. Henry’s effectiveness as an attorney and communicator secured innumerable victories for her clients over the years and helped Tennessee remain in a moratorium for almost a decade. When the state recently decided to resume executions, Ms. Henry was immediately prepared to raise every possible challenge to save her clients’ lives. In July 2018, Ms. Henry represented 33 men on Tennessee’s death row in a challenge to the state's lethal injection protocol that received national attention. Although the three-drug execution protocol has been litigated around the country for years, experts hired by Ms. Henry’s team diligently developed new evidence that the anesthetic drug dissolves lung tissue, causing intense pain. While the lawsuit was ultimately unsuccessful at halting the state’s resumption of executions, the evidence developed in that challenge has already been cited in other federal court rulings, and it will no doubt continue to have an impact on future litigation.
Alongside litigating the lethal injection challenge, Ms. Henry remained actively involved in seeking executive clemency for her clients. Her longtime client and friend, Don Johnson, was scheduled for execution on May 17, 2019. Ms. Henry mounted a massive clemency effort on his behalf—not only organizing Mr. Johnson’s faith community, friends, and the public around his bid for clemency, but also supporting two family members of the victim through their public forgiveness of Mr. Johnson. Even faced with the execution of her clients, Ms. Henry has not ceased in her powerful advocacy. Moments after watching Mr. Johnson be executed, Ms. Henry briefed the public in a live press conference to ensure that the world would know the lethal injection had caused her client torturous pain. In addition, “Kelley made sure [during this address] that Donnie the human being was acknowledged and remembered as well. She explained the reason Mr. Johnson sang hymns in the execution chamber: because spiritual songs comforted him.”
Ms. Henry is currently working alongside the national Innocence Project to represent the estate of Sedley Alley in an effort to prove his innocence. The Tennessee courts denied Mr. Alley’s motion for DNA testing in the days before he was executed in 2006 only to reverse that decision five years later. Ms. Henry is working closely with Mr. Alley’s daughter to bring this challenge, responsible for both litigating the complicated legal issues at play and honoring the interests of a woman who lost her father. In this, as in all her endeavors, she has been described as “a tireless and creative advocate,” who is “always working the case.”
Ms. Henry's courage, compassion and dedication set the example for others to follow. For her decades of tireless advocacy and focus on protecting the rights and dignity of her clients, the ABA Death Penalty Representation Project is proud to present Kelley J. Henry with the 2019 John Paul Stevens Guiding Hand of Counsel Award.
This year the Project presented a special recognition award to Ronald J. Tabak, Special Counsel at Skadden, in honor of his extraordinary leadership and contributions to the work and mission of the Death Penalty Representation Project.
You can make a gift in honor of Ron and his service to the Project and help in our mission to recruit and train pro bono lawyers to ensure due process.
The Project is thrilled to honor its longtime friend and supporter Ron Tabak with the Project Leadership Award in recognition of his decades-long commitment to death penalty advocacy and service to the American Bar Association. Among his numerous responsibilities, Mr. Tabak coordinates Skadden’s pro bono program worldwide as Special Counsel. He has made critical contributions to the ongoing fight for justice in capital cases and is a leading voice in the national conversation on the death penalty.
At Skadden, Mr. Tabak oversees the pro bono activities of more than 1,000 attorneys and serves as a member of the advisory committee for the Skadden Fellowship Program. Mr. Tabak has also taken on numerous pro bono matters himself, including the direct representation of numerous death-row clients and preparation of amicus briefs (including for the ABA) in other cases. In 1985, he successfully argued Francis v. Franklin in the U.S. Supreme Court, which held that a rebuttable presumption regarding intent unconstitutionally shifted to the defense the state’s burden of proving each element of a criminal offense. In 2003, Mr. Tabak played a leading role in securing a life sentence for Georgia prisoner Johnny Gates after 26 years on death row. Mr. Gates’ guilt remains in question, and in 2019 he was granted a new trial based on exculpatory DNA test results.
In addition to direct representation and amicus work, Mr. Tabak has spent much of his pro bono career advocating for death penalty reforms in a variety of roles. In his roles as informal advisor, Member and Special Advisor to the Project’s Steering Committee, Mr. Tabak has helped recruit scores of lawyers to take on capital cases in urgent need of representation and was a crucial part of the drafting team for the revised ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in 2003. Mr. Tabak has also been the chair or co-chair since 1988 of the Death Penalty Committee of the ABA Section of Civil Rights and Social Justice, which originated the ABA‘s 1997 death penalty moratorium resolution. He has been a member of and is now Special Advisor to the ABA Death Penalty Due Process Review Project, which has assessed the extent to which death penalty systems in numerous states door do not comport with fundamental ABA policies. He also chaired a task force that studied capital punishment for individuals with severe mental illness and concluded that under specified circumstances they should be exempted from the death penalty. The task force’s recommendations were unanimously adopted as policy by the ABA, the American Psychiatric Association, and the American Psychological Association.
In addition to his work for the ABA, Mr. Tabak has been a member of the Committee on Capital Punishment of the New York City Bar Association since its inception and a board member of the Death Penalty Information Center for the past fifteen years. Mr. Tabak has also served as the president of New York Lawyers Against the Death Penalty. After New York reintroduced the death penalty in 1995, Mr. Tabak asserted in both the press and on national television that the statute was unconstitutional on the very basis on which it ultimately was held unconstitutional. He then played a key role in organizing testimony for state-wide legislative hearings which resulted in the statute‘s effective demise.
Mr. Tabak is a prolific writer and has published myriad articles on death penalty issues throughout his career. For well over a decade, he has written the capital punishment chapter for the book, The State of Criminal Justice, published annually by the ABA Criminal Justice Section. He has also organized numerous programs that highlight ongoing problems with capital punishment, and last year moderated an ABA panel with Cardinal Blase Cupich of Chicago concerning the evolving understanding that capital punishment as actually implemented is inconsistent with constitutional, and religious, norms.
The Project is honored to have Mr. Tabak as a longtime supporter, friend, and advisor, and we thank him for his immeasurable contributions to the Project's mission and success.
The Project was honored to welcome Philadelphia District Attorney Larry Krasner as keynote speaker for this year's awards dinner.
A long-time champion of criminal justice reform and former defense attorney, Mr. Krasner has already had a significant impact on the Philadelphia criminal justice system during his first year in office. In addition to reviewing several controversial convictions, Mr. Krasner’s office has also brought an historic challenge to the state’s death penalty system. Earlier this year, the office petitioned the state supreme court to strike down the state's death penalty, citing such issues as racial bias and the lack of qualified counsel and adequate funding for indigent defendants.
Pennsylvania’s capital punishment regime may very well reserve death sentences for those who receive the 'worst' (i.e., the most poorly funded and inadequately supported) representation.
We are delighted that Mr. Krasner was able to join us to share his experiences and help us celebrate the extraordinary work of pro bono attorneys and capital defenders.
Sponsorship of this event provides us with critical funding that allows us to continue our work year-round. If you would like to learn more about general sponsorship opportunities, please contact the Project at (202) 662-1738.