President's Column: Death Row Defense

Death Row Defense Edward A. Mallett President's Column August/September 2000 7 sara

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I have a client on Texas' Death Row. Ron Scott Shamburger attended Texas A & M for four years, was an Eagle Scout, and is a devout Baptist. On the night of the murder, afterwards, he called his pastor, and together they went to the police station, where he poured the bullets from his gun onto the floor before a detective would take his confession.

His crime, one shot to the head with a hand-gun, to a girl he knew, was horrible and regrettable, and causes him great remorse. Now, he waits for final adjudication and, ultimately, execution. He is locked down 23 hours a day. Steel and concrete. No windows. No TV. Food tray passed through a slot - his only opening to the world. His 1 hour of “exercise” is in a cage better suited to hold livestock. This is his life until death separates him from the living. That we treat guilty people this way while they wait to be “punished” is inhuman. That we hold innocent people like this is almost unthinkable.

The big news this year was the number of innocent people found on Death Row. We were not amazed. Innocent people have always been there: on the gallows, before the firing squad, in the chair, and on the gurney. In cases where DNA evidence does not exist, innocent people will continue to be locked up, and some will be executed.

Death Row lawyers are the bravest among us, to name but a few from the many: Steve Bright, David Bruck, Dick Burr, Judy Clarke, George Kendall, Barry Scheck, and Bryan Stevenson. If we're honest, death penalty defense makes the rest of us a little bit uncomfortable. We can all come up with a list of reasons not to take a death case: they are too time-consuming and eat up our practices; they are too gut-wrenching because we know in the end we'll probably lose and our client will die; the law is too complicated and we don't know it; we're trial lawyers and that bone-stupid appellate judge, per curiam, will lie about the record or say the errors were harmless or that the harmful errors were waived; we have mortgages and car payments and family lives which compete for our attention, and so on.

The truth is that most of the post-conviction death penalty cases are handled not by those attorneys we see on Nightline and Geraldo, but by rank and file, not famous criminal and civil lawyers. The rest of us. Most of the hard work: tracking down lost witnesses, pouring over police reports, searching for tissue sample sizeable enough to subject to DNA testing, locating and interviewing jurors, and then putting it all together into a compelling habeas corpus petition — is done by lawyers who started out with no experience, no special knowledge of the law, who may be reviewing an autopsy report for the first time. Mostly, we lose. But sometimes, sometimes, we win.

Lawyers who have handled death penalty cases will tell you that it gives them a different perspective on their own lives and practices — about what matters and what can be left behind. A real lawyer's highest calling is the battle to save a human life. Will you ever do any work that is more important? Lawyers who have done a death penalty case will tell you no, you won't.

Finish one death penalty case and your life will never be the same. You will never look at the justice system with quite the same eyes. You will come to know your client. You will find the injustice. Your client will not need killing.

Here in Texas, “the death penalty” is about almost 500 (mostly) men who wait in solitary confinement and the lawyers who do their damndest to represent them with integrity, dignity, and compassion. “The death penalty” is also about those inmates across the country who are dying to have a lawyer. Some are innocent.

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Take a death case. If you live in a state without the death penalty, call Lis Semel at the ABA (202) 661-6821 and get one somewhere else. There are more than enough to go around. Call the NACDL Death Penalty Resource Counsel, Tanya Greene, at (404) 688-1202, and tell her you are ready to go to work. If you take one that's in federal court (and some states), you'll even get paid. If you fear that you don't know the law, there are lots of people to help you. The NACDL will help you.

Together, we can be better lawyers. And, better people. 

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