December 05, 2013 Articles

Pro Bono Spotlight: Defending the Interests of Death Row Inmates

By Stephen E. Reynolds and Katie J. Marschke

For one busy New York litigator, calling it a day after managing her successful practice in complex, nationwide products liability cases is not an option. Lori B. Leskin of Kaye Scholer LLP spends much of her "free" time defending the interests of death row inmates. Over the course of her career, Leskin has successfully represented several inmates, including, most recently, a Virginia inmate whose death sentence was commuted to life in prison without parole. As recently as August 2013, Leskin led a team in a one-week hearing in support of a habeas corpus petition for a Georgia inmate, arguing that the inmate was deprived of his right to receive effective assistance of counsel during his trial.

Kaye Scholer has a long history of representing defendants in post-conviction proceedings. In the spring of 2012, Leskin spoke to other members of her firm about taking another death penalty case. The case of Darryl Stinski came to Kaye Scholer through the American Bar Association's Death Penalty Representation Project.

In 2007, Stinski was convicted by a jury and sentenced to death for two counts of malice murder, two counts of felony murder, and arson. Significantly, the trial record did not reveal much about Stinski beyond his involvement in the criminal acts. After accepting Stinski's case pro bono, Leskin assembled a team of two additional partners, one counsel, several associates, summer clerks, and legal assistants. Leskin and her team felt that Stinski was deprived of his right to have the jury hear a more complete story, and so they began digging into the depths of Stinski's past. It turned out that Stinski had a very troubled childhood. After his parents divorced, Stinski's mother married a man who was abusive and kicked Stinski out of his house. Stinski then bounced from house to house and eventually became homeless, living off friends' couches for a few days at a time. At the time the crime was committed, Stinski was only 18 years old and, according to Leskin, was largely a victim of being at the wrong place at the wrong time.

Leskin knew that the jury was not informed of the traumatic events of Stinski's strained childhood. Leskin concluded that the court-appointed attorneys involved in Stinski's case were not up to the task and simply did not spend the time or effort that was needed to formulate a cohesive mitigation story that should have been presented to the jury. After realizing that Stinski was not adequately represented in his original trial, Leskin continued her search for further grounds that would help in her fight for Stinski's life.

Leskin took the time to meet with Stinski in Georgia four times in the past year and a half. Other members of her team have also met with Stinski. Throughout these interactions, it became clear that the events of his childhood had a more significant impact on Stinski than was ever investigated. Experts found that Stinski suffers from brain deficits and, as result, even today, 12 years after the crime, has the social functioning of a 16-year-old. In actuality, Stinski is now 30 years old.

Stinski's trial attorneys never presented an argument, let alone an expert, regarding Stinski's mental deficits. Based on her diligence and analysis of Stinski's case, Leskin filed a 34-page amended Writ of Habeas Corpus petition in March 2013. She argued, among other things, that Stinski's inadequate representation of counsel violated his Sixth Amendment right to counsel and that executing him would violate his Eighth Amendment right against cruel and unusual punishment.

After filing the petition, Leskin and her team traveled across the county to develop fact witnesses and experts to testify on Stinski's behalf. At the habeas hearing, Leskin presented 20 witnesses in four days, plus a half-dozen witnesses through affidavits. Leskin anticipates there will be over eight more months of briefing before the court will render a decision.

As of November 2013, Leskin and her team had logged over 4,000 hours of legal work on Stinski's cause. In the end, Leskin hopes the court will vacate the convictions and order a new trial. She hopes that at a minimum, the judge will order a new trial on Stinski's sentencing. She is not asking the court to find Stinski not guilty; rather, she is fighting for Stinski's right to have his whole story told in front of a jury of his peers as provided for by the Constitution.

Leskin is a partner in the New York–based firm Kaye Scholer. With over 20 years of experience in litigation, Leskin is co-head of Kaye Scholer's Product Liability Group and head of the Food and Supply Industry Group. Leskin focuses her practice primarily on complex, nationwide products liability cases, and is the former cochair of the ABA Section of Litigation's Products Liability Committee.

Keywords: litigation, products liability, pro bono, death row, inmates, Darryl Stinski, ABA Death Penalty Representation Project

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