The Champion
November 1996

Death Penalty Debate
Stephen Bright & John Zwerling, Moderator: Steven Hawkins

During the NACDL Annual Meeting in Santa Monica, August 3, there was a debate on what course of action NACDL members should pursue to best counter the death penalty in America. Steven Hawkins, Executive Director of the National Coalition to Abolish the Death Penalty, served as moderator for debaters Stephen Bright, Executive Director of the Southern Center for Human Rights in Atlanta, and John Zwerling, a former board member and private practitioner in Alexandria, VA.

Steven Hawkins: Today, we have a debate on how the NACDL should respond to the country's penchant for the death penalty. On the one hand, we have with us Steve Bright, Director of the SCHR. Steve believes that NACDL's best response is to find attorneys to represent clients in death penalty cases. On the other hand, we have John Zwerling, a current member of the Board of NACDL. John believes that the NACDL should use its resources to find ways to change public opinion about capital punishment. We will start with Steve, followed by John. There will then be a short rebuttal and closing remarks by me.

Stephen Bright: We are all for the abolition of capital punishment. And we agree that there are different approaches to obtaining that objective besides defending citizens in the courts. We can organize communities, seek abolition or limits on capital punishment in the legislatures, join in efforts with the religious community, and appeal to our fellow citizens on moral and ethical grounds. We can and should be a part of these out-of-court efforts. Clarence Darrow was involved in one of the first organizations which sought to bring about abolition of the death penalty.

However, it is being suggested that lawyers should no longer defend those facing the death penalty. It is argued that the system is so corrupt, so unfair, that we should not even be a part of it. This argument would seem to apply to defending anyone accused of any sort of crime; the unfairness in our criminal justice system is hardly limited to capital cases. Nevertheless, it is argued that, much like conscientious objectors in a war, we should abstain from representing those facing execution.

I strongly disagree. The machinery of death will grind on whether we participate or not. The experiences of the last 20 years demonstrate that there is an endless supply of uncaring lawyers who will take capital cases and help whisk their clients along to the executioner. The courts have made it clear that death sentences will be carried out even if those lawyers were asleep or drunk.

If abstaining from the fight would stop the death penalty, the system would have ground to a halt already. There are over a million lawyers in the United States. There are only 3000 men, women and children under death sentence. If only three-tenths of 1 percent of all the lawyers in the country would come forward, every condemned person would be represented. Yet there are scores of people languishing on death rows all across the country who are without lawyers.

There have been crises after crises in legal representation in capital cases, well documented and well publicized, but the state and federal governments continue to adopt new death penalty laws, expand old ones, and cut back on the process of review. Congress even removed funding for the capital resource centers to take away lawyers and make it even easier for the states to carry out executions.

The overwhelming majority of lawyers in the United States are not a part of this fight, but the nation's best defense lawyers, members of NACDL, cannot walk away. Our services are needed as never before.

We cannot turn our backs on people like Calvin Burdine, who was sentenced to death in Texas at a trial during which his lawyer slept. Other people in Houston have been represented by the same lawyer who represented Burdine. That lawyer has more people under death sentence than any other lawyer in Houston. Some of them have been executed.

We cannot turn our backs on the fact that a woman in Alabama was represented at her capital trial by a lawyer who was so intoxicated that the trial was stopped for a day and the lawyer sent to jail to sober up.

We cannot ignore people like George Dungee and three other African-Americans in Georgia who were referred to with the racial slur, "nigger," by their own defense lawyers during the trials at which they were sentenced to death.

Surely we as defense lawyers are not going to say that the poorest and least powerful people in our society can be left defenseless with this type of legal representation.

Representing those facing the death penalty is the most effective way to oppose capital punishment. After all, it is in the courts that people are sentenced to death and it must be in the courts that we erect our first line of defense.

Despite the enormous public support for capital punishment, death sentences have been stopped over and over again in the courts. Some states that have had capital punishment statutes for 20 years or more have yet to carry out a single execution. In other states, like Colorado, aggressive defense of capital cases has kept all but a few people from even being sentenced to death.

Even in states where executions have been carried out, only a fraction of those sentenced to death have been executed. In Georgia, for example, over 300 people have been sentenced to death since 1973, but only 20 people have been executed. Less than 100 remain under death sentence. That means that two-thirds of those sentenced to death escaped execution due to the work of lawyers like Millard Farmer, Jack Boger, George Kendall and others. And many more were not even sentenced to death in the first place because of lawyers who obtained life sentences through plea negotiations prior to trial or at trial.

We cannot sacrifice people in some sort of larger theoretical battle to stop the death penalty. We cannot sacrifice children like William Knotts, who was sentenced to death by an Alabama judge who overrode a jury's sentence of life imprisonment. We cannot abandon the mentally retarded, like Michael Sockwell, who also was sentenced to death when an Alabama judge overrode a jury's sentence of life imprisonment.

William Knotts, Michael Sockwell and many others like them do not have lawyers. The new federal statute of limitations is running on people who are in desperate need of lawyers to represent them in post-conviction proceedings. The states will kill them whether they have lawyers or not.

We cannot leave those people unrepresented. We can be delivering these people to safe passage, one at a time, just like the Underground Railroad in the fight against slavery.

Of course, no lawyer wins every case. Defending capital cases in harder than most cases. But even when we are not successful in stopping the death penalty for a particular client, we can bear witness to injustices which otherwise would go completely undetected.

When the Olympic Games came to Georgia this summer, several highly respected human rights organizations pointed out the racism, the unfairness and the arbitrariness of the death penalty in Georgia. Because of our defense of capital cases in that state, we were able to provide information to Amnesty International and the International Commission of Jurists, which issued reports. We wrote a chapter on the death penalty for a report issued by Human Rights Watch.

The information we provided, based on first-hand experience, refuted many misunderstandings that people have about how the death penalty works in practice. For example, many people, in the United States and around the world, believe that in this nation we do not execute the mentally ill. We tell them about our client, Varnell Weeks, who was executed last year in Alabama even though the prison records showed that he often stood naked in his cell, his body covered with feces, talking to people that nobody else heard or saw. No one would know about Varnell Weeks if some lawyer had not represented him in his final round of appeals.

Not long ago, Terry Kindlon and I were discussing some recent developments in capital punishment law -- New York's adoption of the death penalty, the 50 new federal capital crimes and the cutbacks in habeas corpus. Finally, after we had canvassed just how discouraging and frustrating these developments were, Terry said, "We've got to represent the clients."

That is what we as defense lawyers can and must do. Of course, it is not the only thing we should do. We may not be able to stop the Congress or the state legislatures from passing new laws or change public opinion just yet, but we can represent clients. We must fight this in the court because that is what we do best -- representing people in their cases.

Many people are fighting this battle in different ways. Albert Camus made the moral points far more eloquently and persuasively than most of us can. Sister Helen Prejean spreads the word from her perspective as a nun and spiritual adviser to those on death row. There are philosophers, theologians, social scientists, community organizers, and others who are opposing state-sanctioned killing in various ways in our nation. Many of those people are frustrated because they cannot do what we can do -- get into the courts and save lives.

Our primary role was defined long ago, in even more difficult times, by two great lawyers, Clarence Darrow and Thurgood Marshall. They opposed capital punishment and they believed that no one should face the executioner alone. And they acted on those beliefs by standing with countless men, women and children whose lives were sought by the states.

There are people desperately in need of legal representation today, and I hope that this association will be a part of seeing that none of those people face the executioner alone.

John Zwerling: I have the greatest admiration for individual attorneys who fight death penalty cases at all levels. I mean that. Some of my greatest heroes earn my respect doing that. But over the last 25 years that I have practiced, I've watched the death penalty go out and come back in. I've seen the way it's been tinkered with; I've seen how the rules have changed as advocates succeed in an area. They just take away the tools that we need to fight the fight. As an organization, and even as individuals, we have to ask: "Can there come a time when the process involved in the ritualistic homicide of capital punishment becomes so unfair, so one-sided, that it is unacceptable to participate in it?"

By that I am really talking about participation at the trial level.They cannot execute a human being because their rituals require that the accused have a defense attorney, and when we're not there, they cannot do it. Now of course, the argument is that if we're not there, then somebody else is going to be there. That's probably true. But that's the same argument that has allowed people to go along with atrocities throughout the ages, by saying, "If I don't do this, I'll be shot myself, and someone else will come in and do it and it's not going to help those other people anyway." You've got to be true to your own conscience.

Now, in theory, we probably all would agree that due process can fall so low that we cannot participate. The question is: Have we reached that point yet? And that's a very personal decision for people to make, but it's also a decision that this organization and organizations like ours need to discuss. The American Bar Association had a resolution calling for a moratorium on death penalty cases because it felt, at least the Individual Rights Section felt, that due process has fallen too low. The Individual Rights Section pointed out some things that the ABA has demanded in the last seven years. Such as, the appointment of two experienced counsel at each stage -- appointments, not by judges, but by a special authority who has the assignment of making sure that individuals facing the death penalty have attorneys who are qualified and trained in death penalty work, reasonsably compensated and have the resources to make the fight. To date, the ABA has concluded that there is not a single state that has complied.

So, how do you get the attention of the public? The fact that the ABA is discussing this in a serious manner and we have not, I think, is not something of which we can be proud. The ABA needs somebody on its left on this issue and on similar issues.

Now, in discussing the fast track that we have put death penalty cases on, even the proponents of fast track will acknowledge that they are not in favor of executing innocent people. And yet the process that we are developing, that we have developed, already does that, and it's going to get even worse. For every four people executed in the last 20 years, one person has been taken off death row after exoneration. I'm not just talking about a technicality. I'm talking about exoneration. These people have proven their innocence but never before they've spent seven-eight years on death row. In fact it usually it takes them 10-15 to establish their innocence. These people are going to be executed now within three and four years. They're going to be dead, these innocent people, if we keep on doing business in the same old way.

Death penalty cases distort our already badly out of kilter criminal justice system. If there weren't the pressure from the public to try somebody for the crime, even if it's not the right person, you wouldn't have the distortions that allow 45 to 48 percent of these cases to be overturned eventually on habeas. Remember all of these cases are high publicity. They wouldn't be seeking the death penalty otherwise. Besides putting our effort into the defense of people charged with murder and facing execution, we can speak out against these cases.

We need to focus on alternatives. We can have people observe and critique what the hell's going on. If there's a drunken lawyer in there, we can be on the nightly news, in the papers or somewhere else screaming about it. We can refocus the debate. The issue is not that we put to death monsters like John Wayne Gacy, Richard Speck and Ted Bundy. Our concern is for the innocent, for juveniles, for the mentally retarded, for those people for whom there are real mitigating circumstances.

We must choose our cases carefully. We must make the best use of our limited resources. In medicine, triage is cruel to the few, but it helps the many. Using placebos in research is cruel to the few, but it is beneficial to the many. Sometimes we might need to do things to the disadvantage of some people to help most of the people in the long run.

How the hell can you defend somebody on trial for his or her life if you don't even have the right to find out what somebody is going to say about your client? What happens if we can get a poison pill into legislation that gives us the kind of discovery the state would give a litigant with $10,000 at stake? Suppose we refuse to participate if we don't get that discovery? Suppose we refuse to participate if we're not given adequate resources, access to witnesses and the right to compel witnesses to talk to us?

There are other organizations that are better prepared to assist lawyers defend death penalty cases at the trial level than we are. There are other organizations to train lawyers how best to work within that system. But who is training the attorneys to set about destroying the death penalty apparatus as it exists today? All indications are that there is going to be a huge increase in the number of death row inmates. These people are going to need representation after conviction. We can't even conceive of what resources are going to be needed then. I urge this organization to think about how we as an organization can best accomplish the task. I don't think it's by going into every case willy-nilly. I don't think the answer is finding decent lawyers to throw in the pit so that death penalty proponents can say the system works because we win one out of five cases. I think we hurt the many by helping the few.

Stephen Bright: People should be true to their conscience. For a variety of reasons, some people do not want to represent people in capital cases, and I respect that. There are many injustices and many different, important battles to fight in the courts. I want to address the concerns of those who are willing to take on a capital case, but are unsure as to whether it is an effective way to fight the death penalty. As I have said, it has been the most effective way to keep the state from killing people.

In addition, to the extent we have been successful in bringing injustices to the public's attention, it has been because we have been involved in the cases. Time magazine had an article about the woman who was represented by the drunk lawyer because we took her case on appeal and we read the transcript. If we had not been involved, only a few people in Talladega, Alabama would have known about it.

During a debate in the U.S. Senate, several Senators discussed a capital case from Chambers County, Alabama, where the prosecutor had used 26 jury strikes to strike 26 African-Americans from the jury. The prosecutor had arranged the jury list in four lists: one marked "strong," one marked "medium," one marked "weak" and one list marked "black." The first three lists were all of white prospective jurors and the last one had only black people on it.

Again, no one would have ever known about this undeniable case of racial discrimination, it would have never been discussed in the Senate of the United States, it would never have been written about in national publications, if lawyers representing Albert Jefferson had not gone through the files at the courthouse and uncovered the lists.

The same is true for the people who have been exonerated. Walter McMillan is a free man today because Bryan Stevenson represented him for years and found that he was innocent. Bryan found the courts were unresponsive to his evidence, so he took it to Ed Bradley and the case was featured on 60 Minutes. Then the Alabama courts freed Walter McMillan.

Walter McMillan was freed because Bryan and his colleagues did what we as defense lawyers do so well -- meeting with our clients, investigating their cases, developing the facts and then bringing them to the light of day. Had it not been for those efforts, Walter McMillan would have been executed and no one would have known he was innocent.

Last summer, one of my clients, Tony Amadeo called me. We won Tony's case at the U.S. Supreme Court in 1988 by proving that the prosecutor had sent the jury commission a memorandum directing it to under-represent black people in the juries. Tony was calling to tell me he was graduating from college.

A few days later, I watched Tony, who had been condemned to die when he was 18 years old, graduate summa cum laude from Mercer University. No one will ever convince me that somehow not representing Tony Amadeo, not saving his life, would have somehow served some higher purpose of bringing about the end of capital punishment.

There are a lot of people like Walter McMillan and Tony Amadeo who need our skills. We must be there for them.

John Zwerling: Allow me to be perfectly clear: I am not talking about withholding representation from people who have been sentenced to die. From that point on, the ritual doesn't require us to be there. We can do everything we can to expose the shortcomings and the racism and the unfairness of what occurred down below. I'm talking about serving as society's representatives at the trial level. Without us, they cannot sentence someone to death. Let's pretend we are the Little League Champions of a town of 1000 playing against the Little League Champions of a city of 8 million. The fact that all the players are 8-12 years old does nothing to assure a fair game. We'd be better off stealing the ball and getting the hell out of there and preventing the game from ever taking place. We would not be doing anybody any favor by taking the field under those circumstances.

Justice Blackmun, when he departed the bench, said, "I will no longer tinker with the machinery of death. I feel morally and intellectually obliged to concede that the death penalty experiment has failed."

Justice Powell, when it was too late to help people, when he left the bench, said, "I have come to think that capital punishment should be abolished because it brings discredit to the whole system."

I believe that when due process is eviscerated from the trial level, it brings discredit to the whole profession. For lawyers to go in there and try to make the best out of a bad situation may do more harm than good. Our representation may be just good enough to leave the appeal lawyers little to work with.

As an organization we sometimes have to act differently than we might as individuals. There's not a single person in NACDL who doesn't represent the underdog, who doesn't thrive on beating the bastards at their own game. We all do -- that is our instinct, that is what we love, that is what we do. If we were out to make money, this is not the profession we would have chosen.

At some point, there comes a time when you have to stake out a principle and abandon your instincts. We need to discuss whether we're there yet or we must wait to see the ramifications of the Effective Death Penalty Act of 1996.

Steven Hawkins: In some ways I serve best as a moderator because I have bridged both worlds. I've bridged the world that Steve Bright eloquently talked about. For years, as an attorney with the NAACP Legal Defense Fund, I represented clients facing the death penalty. Yet, as Director of the National Coalition to Abolish the Death Penalty, I've bridged the world that John Zwerling has talked eloquently about -- the need for us to think of much broader strategies, the need for us to realize that death row is 3000 people today and 6000 tomorrow. What will we do to put in place strategic plans to end the death penalty in the United States?

We must, I think, do both. We must realize right now that there is a crisis in the representation of clients on death row. There are innocent people sitting on death row today. There are many more who are juveniles, mentally retarded or for a host of mitigating circumstances do not deserve to be on death row. We must be there for these people. But how are we going to work as a national association? I believe that our understanding of our role has to be broader than simply representing individual persons.

The great civil rights attorney Charles Hamilton Houston said that a lawyer is either a social engineer or a parasite. What Houston meant is that we cannot be content with the status quo. And how will we be social engineers? How will we help to end the death penalty? Clarence Darrow, the brilliant criminal defense lawyer that he was, defended Loeb and Leopold 72 years ago. The following year, in 1925, Darrow founded the American League to Abolish the Death Penalty. Darrow saw his role as a lawyer as broader than just representing individual clients. He saw his role as a social engineer -- to bring about the end of the death penalty by changing public attitudes and the law itself.

I think that NACDL is at the forefront of recognizing this dual role. There is no other organization where I hear discussions that go to both representation of individual clients and strategies to bring about the abolition of capital punishment. The death penalty can be abolished in our lifetime, but we need the same tactics that Thurgood Marshall used to bring about school desegregation in Brown v. Board of Education. Justice Marshall created a strategy where small victories built upon each other, ultimately leading to Brown. He dismantled apartheid within public education one block at a time -- over a 20-year struggle, through such building block cases as Oklahoma v. McClarin and Sweat v. Painter. To end the death penalty, we will need similar victories that build upon each other.

For example, we can start by convincing society that it is wrong to impose the death penalty on people for crimes they committed as children, below the age of 18. Once we get society to realize that it is wrong to kill a 16-year-old kid, then our next building block is to get society to see that killing someone with the mental age of a 12-year-old is equally wrong. We can stop the use of capital punishment against children and the mentally retarded -- building blocks toward the ultimate abolition of the death penalty.

So the great challenge before us is to continue helping in the representation of persons facing the death penalty, while also working on strategies to end the death penalty itself. We must commit our resources to our dual purpose.

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