This summer, the ABA Death Penalty Representation Project celebrated a major milestone, with the resentencing of Tennessee death row prisoner Andrew Thomas marking 100 capital cases now finalized with a sentence less than death following assistance by the Project and its pro bono partners.
Since 1986, the Project has worked to address the counsel crisis facing death row prisoners. Three years after the Project’s founding, in 1989, the U.S. Supreme Court declared that the Sixth Amendment provides no guarantee of counsel to capital prisoners in post-conviction or habeas proceedings. This left many prisoners on death row without meaningful access to the courts to raise significant constitutional claims about errors with their conviction or sentence, such as problems with representation, jury selection, or prosecutorial misconduct. Not having state or federally mandated offices or attorneys equipped to handle these vital appeals—especially since many death penalty states routinely underfunded trial counsel systems, as well—meant that countless death row prisoners were being executed unaided by the zealous representation that is crucial to fairness, accuracy, and reliability in death penalty prosecutions.
For more than thirty years, the Project’s volunteers have stepped in to fill this critical need, donating their time, skills, and resources to ensuring that every person facing a death sentence has a committed advocate to fight on his behalf. The Project’s case placement records, which start in 1998, show that today, 100 capital prisoners represented by Project volunteers have won relief from their death sentences. The majority of those have been resentenced to life or a term of years, after lawyers proved that a death sentence would be unconstitutional; five death sentences were commuted to life terms after grants of executive clemency; and 15 of those 100 prisoners were released from prison altogether after their attorneys demonstrated that they were wrongfully convicted of crimes they did not commit. Not one of these victories came easily, in a system that is designed to leave death sentences in place even in the face of overwhelming evidence that execution would be unjust. Every life saved by the Project’s volunteer lawyers is a testament to the dedication, compassion, creativity, and countless hours of work devoted by these skilled advocates.
In total, records show that more than 350 prisoners have been assisted by the Project and its volunteers since 1998, nearly half of which have cases that are still in progress in the courts. The Project counts every case placed with pro bono counsel as a victory, regardless of the eventual outcome. Without the assistance of counsel, a prisoner has no voice in the legal system to tell his story and seek help from the courts. In the absence of a constitutional guarantee of counsel, volunteer attorneys represent access to justice for their clients and integrity in the criminal justice system.
This is true whatever the outcome of the case. Whether because of the underlying facts, or inherited procedural obstacles, or other systemic barriers, some cases will almost inevitably end with an execution no matter how extraordinary the efforts of counsel might be. But this does not lessen the value of what these volunteers have contributed to their clients and to the legal system. These remarkable lawyers give their clients the chance to tell their stories and the knowledge that they have advocates fighting to protect their rights and dignity to the very end, while also setting the building blocks for eventual change by exposing flaws in the system and the need for reform.
While even the most skilled post-conviction attorneys will have cases that ultimately cannot be won, there would be no hope at all without their efforts. Without the assistance of pro bono counsel and other dedicated advocates, it is virtually guaranteed that these 100 individuals would have been wrongfully executed. The fact that their lawyers were able to defy all odds and overcome monumental legal and procedural hurdles to save their clients’ lives is a remarkable example of the power of pro bono representation.
We offer our deepest gratitude and appreciation to the scores of volunteer attorneys who have, and continue to, bring dignity, humanity, and justice to the men and women on death row.
The following are just a few examples of individuals whose lives have been forever changed by our volunteer attorneys over the years.
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In 2000, Dorsey & Whitney volunteered to represent Joe Lee Guy, a prisoner on Texas’s death row, during his federal habeas proceedings. Counsel quickly uncovered numerous issues with his representation, including the fact that Mr. Guy’s trial attorney had a severe substance abuse problem and had been disciplined by the state bar more than a dozen times. In addition, this attorney hired an unlicensed investigator who ultimately befriended the victim’s mother and coached her through her testimony against Mr. Guy. Dorsey & Whitney worked diligently to investigate and present Mr. Guy’s defense, locating more than 50 witnesses who were willing to testify to mitigating factors that his defense investigator never discovered such as his abusive childhood and low IQ. In 2004, a district court vacated Mr. Guy’s death sentence, finding that he received ineffective assistance of counsel and noting that his investigator “transitioned from defense investigator to mercenary” over the course of trial preparation. Later that year, Mr. Guy was resentenced to life without parole following a plea agreement with state prosecutors. Dorsey & Whitney went on to receive the Project’s Exceptional Service Award in 2011 for their outstanding defense of Mr. Guy and other capital defendants.
In 2004, volunteer attorneys from Jenner & Block successfully negotiated a plea agreement for their client, Maryland death row prisoner Kevin Wiggins, that allowed him to leave death row and go to a state mental health and rehabilitation facility where he could immediately apply for parole. Two-time Exceptional Service Award winner Jenner & Block represented Mr. Wiggins for twelve years before he finally won relief. The agreement followed a significant U.S. Supreme Court victory the previous year in which the high court held that Mr. Wiggins received ineffective assistance of counsel at his original trial when his attorneys failed to find and present powerful mitigating evidence of childhood neglect and abuse. Writing on behalf of the court, Justice Sandra Day O’Connor stated: “Had it been able to place his excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance.” The Court’s opinion helped far more prisoners than just Mr. Wiggins, having since been cited in more than 5,000 other court opinions.
In 2014, the Georgia Board of Pardons and Paroles granted clemency to Tommy Lee Waldrip, commuting his sentence to life without parole after he served more than two decades on death row. Attorneys from Drinker Biddle & Reath served as counsel for Mr. Waldrip for 17 years, arguing that Waldrip’s mental illness made him more susceptible to false confessions, and that the state had suppressed evidence in violation of Brady v. Maryland, including evidence that the police had violated Mr. Waldrip’s Miranda rights. However, after the U.S. Supreme Court declined to review the denial of federal habeas relief, Mr. Waldrip’s counsel had no other avenue but to turn to the Georgia Board of Pardons and Paroles, the only entity in the state with the power to grant clemency. Counsel pointed out that Mr. Waldrip’s death sentence was disproportionate to his co-defendants, his brother and son, who both received life sentences. They also pointed out that Mr. Waldrip was likely to have exaggerated his role in the murder to protect his son. Although the Board did not publicize its reasons for granting clemency, it chose to commute Mr. Waldrip’s sentence only a day before he was set to be executed.
In 2017, Jimmy Dennis was released from prison after two decades on death row for a crime he maintains he did not commit. Dennis was convicted and sentenced to death in Pennsylvania in 1992 based on three weak eyewitness identifications; testimony from a man who had his felony charges dropped in exchange for his cooperation; and a description of Mr. Dennis’s clothing that was lost by the police before the trial. In 2000, former Exceptional Service Award-winning firm Arnold & Porter agreed to represent Mr. Dennis in his post-conviction proceedings. Whereas Mr. Dennis’s trial counsel had failed to take basic steps to investigate the case and prepare for trial, Arnold & Porter conducted a years-long investigation that revealed three pieces of evidence withheld from defense counsel that would have helped Jimmy prove his innocence at trial. This evidence included a statement implicating two high school boys in the attack for which Mr. Dennis was convicted; a statement from a prisoner giving a detailed description of a phone call he had with people purporting to be the actual assailants, in which they admitted to committing the crime; and a receipt from an alibi witness that helped support Mr. Dennis’s claim that he was on a bus elsewhere in the state at the time of the attack. In 2013, the U.S. District Court for the Eastern District of Pennsylvania granted habeas relief to Mr. Dennis and vacated his conviction after finding that these omissions amounted to violations of Brady v. Maryland, stating that Mr. Dennis “was wrongly convicted of murder and sentenced to die for a crime in all probability he did not commit.” The state district attorney originally refused to accept the new evidence of Mr. Dennis’s innocence and threatened to initiate new proceedings, but ultimately offered him an Alford plea that allowed for his immediate release on time served but prevented him from seeking compensation for the time he was wrongly incarcerated. Speaking on behalf of the Arnold & Porter pro bono team, attorney Rebecca Gordon said, “It was one of the most incredible, meaningful experiences of our professional and personal lives.”