Military veterans on death row deserve special consideration Purple Heart

On this commemorative national holiday, I share a report that comes at Veterans Day via a different angle—an analysis of those veterans who sit on death row in the United States.

The topic may be an uncomfortable one, but those who work in specialty courts dedicated to veterans caught up in the justice system may find it evocative. I’d appreciate know what they—or anyone—thinks of the report. Write to me at

I recommend to you an article in The Guardian that discusses numerous cases of those who served who now face the severest penalty. Among those is James Davis, “one of hundreds former service members condemned to death at the hands of a government they risked their lives to protect and serve, according to a report, ‘Battle Scars: Military Veterans and the Death Penalty,’ published by the Death Penalty Information Center on Tuesday.”

As the report’s executive summary opens:

“In many respects, veterans in the United States are again receiving the respect and gratitude they deserve for having risked their lives and served their country. Wounded soldiers are welcomed home, and their courage in starting a new and difficult journey in civilian life is rightly applauded. But some veterans with debilitating scars from their time in combat have received a very different reception. They have been judged to be the ‘worst of the worst’ criminals, deprived of mercy, sentenced to death, and executed by the government they served.”

“Veterans with Post-Traumatic Stress Disorder (PTSD) who have committed heinous crimes present hard cases for our system of justice. The violence that occasionally erupts into murder can easily overcome the special respect that is afforded most veterans. However, looking away and ignoring this issue serves neither veterans nor victims.”

Download the full report here.

Just last week, I had a long conversation with a prestigious criminal-defense lawyer. He is concerned about the representation provided to the indigent in the criminal justice system.

“Concerned” may be putting it lightly. Perhaps “alarmed” may be more accurate.

His focus, I should assure you, is not necessarily on the run-of-the-mill criminal matter. His focus is on the problematic situation of death-penalty litigation.

This spring, I hope we will be able to publish a story on the topic. Extensive examination of many case files may reveal that many lawyers come to the representation less prepared and experienced than is ideal. Thus, those who face the possibility of the ultimate penalty may be ill served—which means, of course, society is ill served.

One thing this lawyer mentioned to me more than once stuck in my head: Reading case files reveals that lawyers too rarely take advantage of the opportunity to employ investigators. And as a result, important—perhaps fatal—avenues remain unexplored.

I must point out that this lawyer has the greatest respect for public defenders and the jobs they do with limited resources. Nonetheless, he felt compelled to examine best practices. That examination comprised the work of all defense lawyer, including private-practice lawyers.

That conversation came to mind last Wednesday when I came across a story titled “ACLU Critical of Public Defender System.” It comes from the Hungry Horse News, out of Columbia Falls, Montana, and Coeur d’Alene, Idaho.

(You may follow the Hungry Horse News on Facebook. Why would you do that? Well, I’ve begun doing it myself, for perhaps the best reason I can imagine: They proudly announce, “It remains one of the few newspapers in America published in a log building.” Unverified, but cool nonetheless.)

In any case, the story indicates that the ACLU shares some of the same concerns that the lawyer communicated to me.

What do you think? Does capital defense lack anything? What improvements should be made? And what effect could changes have on the outcome of such cases?

As November ends, it would be a mistake not to note a unique and helpful story in Arizona Attorney Magazine this month. It examines a capital case crisis that gripped a county, and that was addressed in a strategic way.

The article, by two Superior Court Judges and one Commissioner, follows on a previous story that raised alarms about a huge backlog in capital cases. While carefully avoiding the debate over the propriety of the death penalty, the authors faced the question of how the justice system can render justice when so many cases are in the pipeline that may result in the ultimate penalty.

Pretty well, they conclude this month. As the article opens:

“In April and May 2009, Arizona Attorney Magazine published, in two parts, ‘The Capital Case Crisis in Maricopa County: What (Little) We Can Do About It.’ Our goal in that piece was to explain the complexities of the preparation and trial of such cases, the steps required, and the participants involved, as a way to explain why capital cases take so long to try. We also discussed how they eventually resolve at the end of a long state and federal appellate and post-conviction relief process. On average, the length of time from arrest until execution of the sentence is 20 years

“As of Aug. 31, 2008, the time frame used in the article, the capital caseload in Maricopa County Superior Court appeared dire, with few apparent options to reduce capital cases awaiting trial.

“As of July 1, 2011, almost three years later, the situation has changed drastically. This follow-up article sets forth the reasons for this turnaround and the continuing steps the court has adopted to deal with the problem of too many capital cases to try with an insufficient number of judicial officers, courtrooms, experienced lawyers and mitigation specialists. We believe that what we describe may be used as a model for other jurisdictions faced with a similar problem, now or in the future.”

The previous story (in two parts) is available online here and here.

It is hard to describe the amount of work that the authors put into these articles. Five, 10, 20 years from now, I expect that readers will turn back to these stories to view a snapshot in time—and to revisit how a court solved what appeared to be an insoluble problem.

Thank you to all the authors: Judge Bob Gottsfield, Marianne Alcorn (now deceased), Judge Douglas Rayes and Commissioner Patti Starr.

Death row inmates in Texas’s Ellis I Unit, with Perry Mason on the television, 1994; photograph by Ken Light from his 1995 book Texas Death Row

Today, 25 years of hard work is recognized, as the American Bar Association marks the anniversary of its Death Penalty Representation Project. As part of the event, the ABA will honor three law firms for their commitment to justice and an even-handed system that metes out the ultimate punishment.

Among other portions of the event, the ABA will honor U.S. Supreme Court Associate Justice John Paul Stevens (ret.) for his “lifetime of work and unwavering dedication to the principle of equal justice for all.”

More information on the event is here.

(Last December, Justice Stevens penned a book review for the New York Review of Books. In it, he analyzed David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition . Whatever your bent on the subject of capital punishment, Justice Stevens’ review is worth reading.)

Even in a nation that can be partisan and appears divided on many—OK, most—things, I like to think that the Project’s mission—finding competent attorneys for the accused—would be accepted widely.

As the organization describes itself:

“At the Death Penalty Representation Project, we believe that all persons facing a possible death sentence should have the assistance of competent, effective lawyers at every stage of the proceedings against them. Good lawyers are essential to justice, especially in death penalty cases. Over the past 24 years, thousands of our volunteers have contributed their skills, time, and substantial resources to this cause and saved the lives of countless men and women.

“The American Bar Association created the Death Penalty Representation Project in 1986. Our goals are to raise awareness about the lack of representation available to Death Row prisoners, to address this urgent need by recruiting competent volunteer attorneys, and to offer these volunteers training and assistance. We also work for systemic changes in the criminal justice system that would assure those individuals facing death are represented at all stages of the proceedings from trial through clemency by qualified, adequately compensated counsel.”

As odd as it may sound to issue congratulations on such a sobering 25-year accomplishment, that is what I’ll do. Well done, to the ABA, to the three honored law firms, and to any lawyer who has taken on a capital case.

Here is the complete new release:

ABA Death Penalty Representation Project Marks 25 Years of Service

Anniversary Program Features Justice John Paul Stevens (Ret.), Death Row Exoneree and Pro Bono Lawyers

WASHINGTON, Sept. 13, 2011 — The American Bar Association Death Penalty Representation Project, created in 1986 to help ensure fair trials and quality legal representation for those facing a possible death sentence, is recognizing its 25th anniversary Sept. 14, with a program featuring retired U.S. Supreme Court Justice John Paul Stevens and death row exoneree Anthony Graves. Exceptional Service Awards will also be presented to Arnold & Porter LLP, Dorsey & Whitney LLP and Fredrikson & Byron, PA, for the pro bono work their lawyers have provided in representing death-sentenced prisoners.

The project is honoring Stevens for his lifetime of work and unwavering dedication to equal justice.  After many years of support for capital punishment, Stevens publicly declared his opposition to the death penalty for juvenile offenders just two years before his retirement from the Court. Later, he joined three other justices in concluding that capital punishment is unconstitutional under the Eighth Amendment.

Also making remarks at the program is death row exoneree Anthony Graves, who spent 18 years in prison in Texas for a crime he did not commit.  Graves was exonerated and released late last year, becoming the12th person to be exonerated from the state’s death row since 1973 and the 139th such person in the country.

Three law firms will be honored for their commitment to death penalty representation and the pro bono work of their lawyers:

  • Arnold & Porter LLP has made death penalty representation a priority in the past four decades.  Firm lawyers have participated in several individual high-profile cases that have overturned death penalty convictions.
  • Dorsey & Whitney LLP has a 20-year history of providing pro bono legal services to death row prisoners, primarily in Louisiana, Alabama and Texas.  Dorsey is currently handling death penalty cases for three prisoners.
  • Fredrikson & Byron, PA has provided lawyers to assist death row prisoners in Louisiana, including the case of Dobie Gillis Williams, whose case was highlighted in the book, The Death of Innocents: An Eyewitness Account of Wrongful Executions.

For the past 25 years, the project’s work has focused on the crisis of counsel in the death penalty system. As one of its primary goals, the project seeks to expand the pool of lawyers willing to serve as pro bono counsel for death row inmates in post-conviction proceedings by recruiting volunteer attorneys to handle capital cases and providing them with training and assistance. The project also educates the public and bar about the crisis of counsel and works toward reform of the systems that provide counsel to indigent defendants through its systemic litigation project.

Learn more about the history of the ABA Death Penalty Representation Project here.  Additional information about firms that provide pro bono service for death row prisoners is available here. For information about representing a death row prisoner, click here.    

On this Change of Venue Friday, I’d recommend a few articles that look at the criminal justice system.

First, surf over to the New Yorker. That’s where Jeffrey Toobin examines what’s happening to the death penalty in Texas. Once the nation’s leader in capital punishment, it is now talking a decidedly different tack. There may be a few reasons for that, but one of them may be the more sophisticated use of mitigation by defense lawyers. And Toobin adds that changes in prosecutors’ offices have played an important role too.

Jeffrey Toobin

So good is Toobin’s article that I am linking to it despite the fact that much of it is behind a paywall. Like many print publications, the New Yorker offers some content for free but really wants you to subscribe to get the rest. I read the whole thing, but the free abstract they provide is long, substantive and worth your time. And who knows: You may like it so much you’ll head over to a newsstand to pick up a copy.

The second article I’d recommend is E.J. Montini’s Arizona Republic column today on the law case surrounding the 1991 Buddhist Temple Murders.

E.J. Montini

We reported yesterday that the Ninth Circuit once again ruled to overturn the conviction of Johnathan Doody, based on the length and nature of the interrogation of the then-young defendant. (We also ran a book review of “Innocent Until Interrogated” by Gary Stuart, which examined the case. A portion of Gary’s book was a winner in the Arizona Attorney Creative Arts Competition in 2008.)

Montini spoke with a juror from the trial, who continues to aver that Doody was guilty. He says that the jury based their verdict on more than just the confession.

We might expect a juror to hold to that position. But the man’s comments are thoughtful and provide valuable insight into the process. Whether the State of Arizona decides to appeal again or prosecute again, insight into the system of interrogation and confession is always welcome.

Have a great weekend.

How do you talk about important issues without being rude and boorish?

That was the challenge a lawyers group sought to overcome, and its initial effort was on display last night, Thursday, April 28. And for this visitor, it was a qualified success.

The St. Thomas More Society launched its Civil Discourse Series with a heady and controversial topic titled “The Death Penalty: Is It Moral? Is It Antiquated?”

The first notice I received in late March about the event looked to be in a debate format. It appeared to be two lawyers on one side of the topic “vs.” two others on the other side.

Last night’s program, though, merely referred to them as “panelists.”

That may have been more accurate, as the event was characterized more by mini-speeches than by sharp, concise, back-and-forth. That is not a critique, merely a recognition that the Society is feeling its way toward the ideal format for this original idea.

Those mini-speeches ranged from well stated and clear to meandering and obscure, which is par for the course for any educational panel. But more than once, audience members may have wondered about the Series’ underlying premise: Do members of the public really want to hear from lawyers—on any topic—for two hours? Wisely, organizers did not put that question to a vote.

Given the preparation and effort involved, organizers had to be disappointed in the modest turnout. The venue was the Phoenix auditorium of Xavier College Preparatory. That is a beautiful and stunning room.  But it’s also a very large room, which was only dotted with attendees. Certainly, marketing and communication will be a stronger focus for Volume 2 of the Series (which will be on immigration, co-chair Denise Blommel revealed).

Moderator Ernie Calderón, April 28, 2011

These are just quibbles. In a state that is only 110 days beyond a horrific assassination attempt in Tucson, praise must be given to the St. Thomas More Society, which is addressing head-on a coarsening of the national debate that dismays most everyone (though not everyone). Unlike the rest of us, though, the Society is doing something about it.

The evening’s moderator was Ernest Calderón. His resume is long, but the short form is that he is a Regent on the Arizona Board of Regents, a former President of the State Bar of Arizona, and a practicing lawyer.

Ernie was a good choice for the role. He is capable of a great amount of gravitas when it’s called for. But he graciously set that aside last night, as he sought to cajole, persuade, kid and prod panelists into uttering real and compelling statements on a difficult topic. Clearly, he came prepared to herd the speakers away from the raft of arguments on both sides that the public has heard for years, and toward some out-of-the-box analyses.

He was moderately successful. The panelists were cautiously open to addressing Ernie’s deliberately provocative hypotheticals. That was when the evening soared.

But there were more times when panelists got lawyerly, challenged the assumptions underlying a question, and negotiated terms to lower a question’s stakes. Unfortunately, that led to less illumination than would have been ideal.

Nonetheless, it is still invigorating to see smart people bat contrary ideas back and forth. Attendees were probably unsurprised by the arguments: retired Judge Rudy Gerber on one side reminding us that our use of the death penalty puts the United States in the company of China, Iran, Iraq, Saudi Arabia and Yemen; and Tom Horne on the other side reading at (overly sufficient) length from the trial record of horrific details that occurred in notorious torture–homicides. Although the two positions may not be new, they were gripping nonetheless.

A moment of pointed debate occurred when panelist Alan Tavassoli challenged Tom Horne’s repeated statement that Horne was on the side of justice for victims, which equaled capital punishment as a solution. The AG had reiterated the “Justice = Death Penalty” trope throughout the evening, and Tavassoli finally observed that all the panelists were on the side of justice, which he believed life without the possibility of parole may provide. His question to Tom Horne could have led to an interesting exchange. Unfortunately, that was just moments before the event ended.

Here’s a photo of the distinguished panel (click it for a larger version):

L to R: Alan Tavassoli, Hon. Rudy Gerber (ret.), Ernie Calderón, Bill Montgomery, Attorney General Tom Horne

Congratulations to Ernie Calderón for keeping things moving and even light. (One of those light moments occurred when the moderator asked the prosecutor–panelists whether a prosecutor’s office would use its time better to focus on the costs of justice rather than, say, indicting judges. Without missing a beat, Maricopa County Attorney Bill Montgomery smiled and replied, “I can tell you that in my first five months in office I have indicted zero judges!” The other panelists—and the audience—roared with laughter.)

Congratulations also to the panelists:

More photos of the event are at the Arizona Attorney Magazine Facebook page.

I’ll provide more detail on the fall version of the Series as it comes available.

On Friday, I explained how we sometimes are presented with new ways of viewing the same old things we’ve seen 100 times before. That opportunity came when I attended a conference online regarding virtual worlds. Trippy, but grounded. 

That same afternoon, I attended a seminar (in person) presented by a California lawyer. The talk was titled “Capitally Speaking: Language Shapes the Proceeding From Start to Finish.”

(The presentation was part of the Colloquium Speakers Series of ASU Applied Linguistics, a partnership between the College of Education and the College of Liberal Arts & Sciences.)

Mel Greenlee, an attorney with the California Appellate Project, walked the audience through a capital trial—from jury selection to the sentencing phase. And she explained how the language and diction used at every phase conveys a message to jurors. That diction is sometimes accidental—as in mis-translations—or planned—as in cross-examinations and closing arguments.

That overly simplistic summary would not be news to anyone who’s ever stepped in a courtroom. For as we all know, words are ideally selected to convey a message.

What was new was Greenlee’s detailed use of court transcripts to illustrate the messages. She examined 20 years’ worth of trials and appeals. As she said with a laugh, from her point of view, the most important person in the courtroom is the stenographer.

Bill Murray's Suntory moment

For example, she began with startling instances of translations gone awry, in which virtually all meaning was stripped out of the speaker’s words. The jury in those cases was poorly served, as was the justice system.

She even showed a clip from Lost in Translation, where Bill Murray’s character receives mediated direction, from Japanese to English, which is inaccurate and unhelpful. (After watching Murray’s character struggle with the liquor commercial, we got to read an accurate translation of the scene. To watch the hilarious scene, with subtitles, click here.)

Even more striking were the side-by-side comparisons of prosecution closing arguments given to largely white juries and those given to largely black juries. The goal—conviction and/or execution—was identical in each case. But the diction and strategy varied in each.

Greenlee also provided instances of judges and lawyers agreeing that non-mainstream hair styles, or a juror’s stern look, or an accent, were all indicative of a juror who was unwilling to apply the law. The result, in all those cases, was a jury that was pretty homogenous.

She argued, of course, that that is not society’s goal. Some photos from the event follow: