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July 10, 2014

Death Penalty Lawyers, Despite Hardships, Are in It for Life

Cynthia L. Cooper

A bulletin board posting by a California death penalty lawyer in search of a Spanish language translator caught the attention of law student Kathy Chavez (now Moreno) nearly 30 years ago. That was the start of her work on capital cases. Today, the Berkeley, California, lawyer is still at it, preparing post-conviction appeals for death row clients.

Surprisingly, among women lawyers in “the capital community,” as it is called, stories like Moreno’s are not unusual. Many are “lifers” who walked into a single death penalty case and continued on a career path.

In Moreno’s initial foray, the mother of the client traveled to a hearing from a remote, impoverished area of Mexico. “Before leaving, she said, ‘I put my son in your hands,’” Moreno recalls. Now working as independent counsel appointed by the California Supreme Court, Moreno has handled seven death cases and another seven as co-counsel. “There’s a lot of tension in death penalty cases that doesn’t exist in other cases,” she says. “The clients are more stressed. You have to clear every bush—you have to exhaust everything in the state or it’s lost forever in the federal system.”

Sobering Statistics

Preparing a filing can take 1,000 to 1,500 hours, depending on the length of the record. Cases last five to eight years. Although no one has been executed in California since 2006, the state has the largest death row—742 inmates, 400 who are awaiting habeas counsel.

Currently, 29 states have the death penalty. Death rows held 3,010 male and 60 female prisoners in the latest national count by the New York–based NAACP Legal Defense and Educational Fund (LDF) in January 2014. Since 1976, when the U.S. Supreme Court allowed executions to resume after a four-year halt, 1,382 executions have occurred—1,128 in the South; 515 in Texas alone.

Still, 30 states have not held an execution in five years. The District of Columbia and 18 states abolished the death penalty, and three states have official moratoriums, according to the Death Penalty Information Center in Washington, D.C. Interestingly, a June 2014 poll by ABC News/Washington Post found that 52 percent of respondents preferred a life sentence without parole over the death penalty, a new majority.

Capital Case Complexities

After a botched lethal injection in Oklahoma in April 2014, executions across the country were seemingly placed on hold. Then, on two days in mid-June, that illusion crashed. Three states—Georgia, Missouri, and Florida—conducted executions, all by lethal injection.

“Everything is different about a capital case—everything, from choosing a jury and on,” says Ruth E. Friedman, director of the Federal Capital Habeas Project, located outside Washington, D.C. Friedman’s law school interest in poverty and race was stirred by capital cases in a summer job in Georgia 25 years ago. “To me, the death penalty is a direct descendant of lynching,” Friedman says.

Since 1976, a capital charge involves two trials—the first on guilt, followed immediately by a separate trial before the same jury on the death penalty. Here, the defense may present mitigating evidence—physical impairment, mental illness, trauma, family relationships—all of which require research. The deck can be stacked high, too, because only jurors who accept use of the death penalty are seated.

“Everything you do at the first trial has to take into account the potential second trial,” Friedman says. “The most important thing to know about the death penalty is the resource issue.”

Certain legal themes make regular appearances in death penalty cases: ineffective assistance of counsel, racial bias, undisclosed exculpatory evidence, and forensic error, as well as repeated narratives of mental illness, childhood abuse, drugs, alcohol, and guns. Questions of arbitrariness linger. While the death penalty has been applied only to murder since 1976, a mere 2 percent of murders involve capital charges, and the majority trace to a narrow slice of U.S. counties, according to the Death Penalty Information Center.

Strong Women Advocates

Women lawyers are rarer at the trial level than for a case on appeal, observers say, although San Diego’s Judy Clarke is the A-list lawyer for high-profile capital trials, including “Unabomber” Ted Kaczynski and Arizona shooter Jared Loughner. When the federal government signaled it would seek the death penalty for alleged Boston Marathon bomber Dzhokhar Tsarnaev, the court immediately appointed Clarke to the defense team.

Indiana’s Monica Foster switched from post-conviction representation to trial work. “I got tired of looking at a painting that someone else had painted,” says Foster, who has handled 25 death penalty cases, dating back to her first weeks of practice in 1983. Currently, Foster is the chief federal defender in the Indiana federal community defender office.

Two of her capital clients have left prison. One, Paula Cooper, was 15 years old when she was sentenced to death in 1986 for murdering an elderly woman. Foster secured her release in 2013. “You see the power of redemption and reformation,” Foster says.

She has had cases go the other way, too. In 2001, Jim Lowery, a client she had represented for 17 years, asked her to be a witness at his execution. “You’re confronted with the stupidity of it. This was a perfectly healthy human being, and then he was a dead human being. I walked around for days, thinking, ‘Do we all feel safer?’ It was completely awful,” Foster says. “I am against murder. I don’t like when people do it; I don’t like when the government does it.”

Houston lawyer Danalynn Recer has a formidable reputation as a mitigation specialist, representing 80 to 90 death penalty clients as a trial lawyer since 1995. “At the trial level, what you’re trying to do is to get ‘death’ off the table,” Recer says, something she’s managed in 70 cases.

If a guilty verdict is returned on a capital charge, Recer, founder of the Gulf Region Advocacy Center in Houston, delivers mitigation evidence in the penalty trial, which she calls a “failed experiment” that satisfies no one.

“It’s a very subjective decision about the value of human life,” Recer explains. “It’s not really about traditional lawyering—it’s not about proving facts, as such. Study after study continues to show that the only rational way to explain the outcomes of capital trials and sentencing proceedings is race—primarily the race of the victim, but also the race of the defendant.”

Post-Conviction Cases

When systemic racial discrimination emerges as a post-conviction issue, Christina Swarns, director of the Criminal Justice Practice at the NAACP LDF, may get involved. Swarns joined the LDF practice as staff in 2003, but an LDF internship a decade earlier drew her to the field. “A light bulb went off,” she says.

In one Texas case, Rosales v. Quarterman, Swarns used extensive research and interviews to challenge the exclusion of black and Latino jurors. The federal district court overturned the verdict and the client was later sentenced to life. “[Death penalty law] is the most truly byzantine law out there,” Swarns says. “People think it’s ‘guilty’ or ‘not guilty’—there are reams of cases trying to make sense of it.”

Other lawyers also enter the death penalty world on specific cases. White-collar defense lawyer Cynthia Orr, chair of the ABA Criminal Justice Section, works on death penalty matters pro bono with her four-person San Antonio, Texas, law firm. “To have a strong criminal justice system, it must work for everyone,” she notes.

One death case in which Orr became involved was not only post-conviction, but post-execution. Defendant Cameron Todd Willingham was executed in 2004 after being found guilty of setting a fire that killed his three young daughters. The prosecution’s arson testimony was ripped apart by a slew of experts, but too late to spare Willingham. Orr participated in litigation to clear the man’s name. “We can’t allow the government to take people’s lives—because we don’t have a perfect system,” she says.

Questions of Innocence

Death row exonerations have occurred 144 times since 1973. A question of innocence may bring Nina Morrison, senior staff attorney at The Innocence Project in New York, into a case—but only if DNA is relevant. Because blood or bodily fluids are not issues in many capital cases—for example, where gun violence is involved—only one-tenth of Morrison’s cases touch upon the death penalty.

Morrison actually decided not to pursue a career in death penalty litigation after working as an investigator for the Capital Appellate Project in California prior to law school. “I had a client who was executed” she says. “After that, I wasn’t sure I had the stomach to work on capital cases.”

Her role now is as a consulting lawyer. In the case of death row inmate Paul House in Tennessee, DNA testing of evidence a dozen years after the conviction refuted a central prosecution claim that House had raped the victim. House was released from prison in 2008.

“People are more likely to be moved by someone who has a claim of innocence,” Morrison notes. “But it shows all the ways the system is broken.”

These myriad capital concerns are addressed by the Death Penalty Clinic at the University of California’s Berkeley School of Law, which files motions and briefs and conducts investigations, especially assisting lawyers in the South, says Elisabeth A. Semel, director.

“As horrible as the crimes are, the clients are so much more as human beings. We are their lawyers, but we [also] may be the people who become closest to them,” notes Semel, former director of the ABA Death Penalty Representation Project in Washington, D.C. Since the clinic opened in 2001, she has worked with nearly 200 law students—80 to 85 percent women. Most continue in public service work. “Once you see the inequities and the disparities in these cases, you can’t come to any other case in the same way,” Semel says.

Death Penalty Jurisdictions



Official Moratorium

Cynthia L. Cooper

Cynthia L. Cooper is a former practicing lawyer and an independent journalist living in New York City who often writes about human rights and justice issues.