On September 20, 2018, the ABA Death Penalty Representation Project held its annual Volunteer Recognition & Awards Dinner. Approximately 100 pro bono attorneys, capital defenders, and criminal justice reform advocates joined the Project in Washington, DC, for an evening celebrating the work of volunteer death penalty attorneys. Each year at the dinner, the Project presents awards to volunteer law firms and attorneys in recognition of their extraordinary contributions. This year, the Project was proud to recognize Orrick, Herrington & Sutcliffe LLP and Crowell & Moring LLP with the Exceptional Service Award, and pro bono lawyer Gwendolyn Payton with the John Paul Stevens Guiding Hand of Counsel Award.
The Project was honored to welcome former Virginia death row prisoner Joseph Giarratano to provide keynote remarks during the Awards Dinner. After being convicted and sentenced to death in 1979, Mr. Giarratano spent more than 40 years in prison, including 12 years on death row. In the mid-1980s, while still on death row, Mr. Giarratano filed a pro se Section 1983 civil rights class action on behalf of death-sentenced prisoners in Virginia who did not have representation for their state post-conviction proceedings, arguing that meaningful access to the court requires the appointment of counsel. Mr. Giarratano’s §1983 action saved the life of an innocent man, fellow death row prisoner Earl Washington who was facing imminent execution and had no lawyer to assist him, and it also shaped the very law concerning access to representation in post-conviction proceedings.
In 1991, former Virginia Governor Douglas Wilder commuted Mr. Giarratano’s sentence to life with the possibility of parole, based on a clemency petition that raised issues of actual innocence. In 2017—in an almost unheard-of turn for a former death row prisoner—Mr. Giarratano was granted parole. Since being released on parole, Mr. Giarratano has settled in Charlottesville, Virginia and has begun working with the University of Virginia’s Innocence Project, where he researches and evaluates other cases in need of help, continuing his extraordinary commitment to helping those in need. We are deeply grateful for his decades of selfless advocacy for the right to counsel, and for his steadfast dedication to helping ensure fairness and due process for the most marginalized members of our society.
Exceptional Service Award Winner: Crowell & Moring LLP
Crowell & Moring has taken on five capital cases from the Project since 1994, including Anthony Apanovitch, a man convicted of murder and rape in Ohio. By the time Crowell joined the case, Mr. Apanovitch had completed the regular appeals process, near the end of which it was revealed that the State had withheld exculpatory DNA evidence. Crowell persuaded the trial court to hold an evidentiary hearing on Mr. Apanovitch’s petition for post-conviction relief based on new DNA evidence, while also skillfully navigating the complex procedural and factual history of the case. After the hearing, the judge ruled that the new DNA evidence excluded Mr. Apanovitch as the perpetrator of the rape and acquitted him on that charge, while also ruling that he was entitled to a new trial on the other charges.
Crowell pro bono attorneys have also shown extraordinary commitment through their representation of Crosley Green, a Florida man sentenced to death in 1990 for a murder he has consistently maintained that he did not commit [read our Fall 2018 update], and through systemic matters, including challenging Oklahoma’s lethal injection protocol in federal court and drafting an amicus brief on behalf of a group of pharmacologists in Glossip v. Gross, the last case raising method-of-execution issues to reach the U.S. Supreme Court.
Exceptional Service Award Winner: Orrick, Herrington & Sutcliffe
Since 2003, Orrick has represented Kevin Cooper, an African-American man convicted of four high-profile murders and sentenced to death in the early 1980s. In 2004, less than four hours before his scheduled execution, Orrick was able to convince the Ninth Circuit Court of Appeals to grant Mr. Cooper a stay based on the large amount of evidence the firm had amassed pointing to his innocence and casting significant doubt on the fairness of his trial. Orrick further petitioned the Inter-American Commission on Human Rights on Mr. Cooper’s behalf, which found numerous due process violations and that he had received ineffective assistance of trial counsel and suffered racial discrimination in prosecution. Orrick has spent nearly 30,000 hours in attorney and staff time on Mr. Cooper’s case and continues to represent Mr. Cooper in his clemency efforts to seek DNA testing from Governor Brown.
In addition to its work representing Mr. Cooper, Orrick has volunteered to take on a number of systemic challenges to the death penalty, including a 2016 state constitutional challenge to Proposition 66, a California ballot initiative to expedite death penalty appeals. The challenge was brought just days after the 2016 election, and based on Orrick’s preliminary pleadings, the California Supreme Court stayed implementation of the initiative for nearly a year while the case was under consideration. Although a divided majority of the court ultimately upheld several of the challenged provisions, it also held that the initiative could not impose a mandatory time limit on the consideration of death penalty appeals, a significant victory for opponents of the proposition who feared that a mandatory timeline would severely undermine due process in capital proceedings.
John Paul Stevens Guiding Hand of Counsel Award Winner: Gwendolyn Payton
For nearly two decades, Gwendolyn Payton has been a passionate advocate for pro bono death penalty clients and has helped to inspire countless others to donate their own time and skills to death-sentenced prisoners in need of counsel. In 2003, after attending a recruitment meeting hosted by the Project and learning about the hundreds of prisoners on death row in need of counsel, Ms. Payton enthusiastically volunteered her time and skills to represent Louisiana death-row prisoner Quincy Broaden. Over the years, Ms. Payton and her team have developed numerous arguments for relief and submitted hundreds of pages of briefings and declarations on behalf of Mr. Broaden to the courts. While that case was still pending, Ms. Payton began representing Howard Guidry, a death-sentenced prisoner in Texas, in habeas corpus proceedings. Ms. Payton took on the case even though it was in a precarious procedural posture and there were few obvious pathways to success. Her relentless investigation ultimately revealed crucial evidence that the State failed to disclose, which could have been used at trial to cast doubt on Mr. Guidry’s guilt. Most recently, Ms. Payton agreed to represent Roderick Harris, a death row prisoner in Texas. At the time she took on the case, Mr. Harris had an evidentiary hearing rapidly approaching and a legal team in dire need of assistance. Even though the court refused to grant a continuance when Ms. Payton took over representation, she immediately threw herself into Mr. Harris’s representation, flying down to Texas to begin preparation for the hearing over a long holiday weekend. This incredible dedication to a new pro bono matter – in a situation where many others might have simply walked away – is emblematic of Ms. Payton’s extraordinary commitment to all her pro bono clients.
The Project is proud to host the Awards Event and celebrate the efforts of outstanding individuals and pro bono firms in advancing justice. Congratulations to all our award winners, and thank you to all the incredible members of our community who aid in the representation of indigent death row prisoners.