Life in the Balance

Keynote speech at the "Life in the Balance" training conference for capital case lawyers and investigators

By Barbara Bergman, law professor, University of New Mexico

I am honored to be with you this morning. In a sense it feels like being home -- with people who devote their energy, their minds and their hearts to save the lives of those human beings who are the most hated in our society. It is rejuvenating to be together with people who care and who treasure the sanctity of life. It is so good to look around and see the heroes that I tell my students about.

As I look around the room I see people with vast amounts of death penalty experience and some who are new to the work. But what we all know is that each one of these cases is unique and different and causes us to redefine ourselves in relationship to the work -- and that's why we come together to learn from each other how to be more effective. Unfortunately what we know too is that the environment we work in is toxic. The demands and the pressure take a toll on each of us that no one can measure. As a result, the need to connect with others who know the costs is also why we come together.

I would like to talk to you about one of the most unique experiences in my life so far and that is to be part of the team that represents Terry Nichols in the fight for his life in Oklahoma.

I've taken leave from UNM and moved to Oklahoma while the case is pending. And in the process, I've learned about the death penalty, about Oklahoma, about myself, and about the responsibility of trying to save someone's life. In my work there I've met Bob Macy, the District Attorney of Oklahoma County. He is a man who

-- takes pride in the fact that he has put over 50 people on death row;

-- has no regrets that the first person he put on death row was only 16 years old when he committed the crime for which the State of Oklahoma killed him;


--has been personally disqualified by Judge Ray Dean Linder from prosecuting Terry Nichols because of his blatant violations of the Oklahoma ethical rules and a gag order.

I've also met some people who are exceptional in their humanity and forgiveness. The same state that Bob Macy calls home also is home for Bud Welch, whose daughter Julie was killed in the bombing of the Murrah Building. It is Bud --

who will tell you stories about the daughter he loved so much and how special she was

who sought out Bill McVeigh to share the pain that both of them feel from the loss of a child; and

who has now dedicated his life to ending the death penalty anywhere it exists.

It's the anomaly of the death penalty that causes these polar positions -- these wide disparities in attitudes and beliefs. For example, Oklahoma is in a race to break its record of killing more people per capita than any other state. Last year in Oklahoma 11 people were executed. Two days ago, with the execution of Robert William Clayton, Oklahoma executed its ninth person of 2001 - and we are barely into the third month of the year.

Yet on that same day as Mr. Clayton's death, for the first time in almost 40 years, the Oklahoma Pardon and Parole Board recommended clemency for a death row inmate, Phillip Dewitt Smith. [By the way, Amnesty International and the Oklahoma Coalition to Abolish the Death Penalty have asked everyone to send telegrams, faxes, calls, whatever you can, to Governor Keating supporting clemency for Phillip Smith. And I join in that request.]

Cases like Terry Nichols' take the spotlight and they take the headlines, but the in-the-trenches work in the fight against the death penalty that you people are involved in are what the headlines should really reflect. And we have great leaders in the fight -- who have caused for the first time in my lifetime, a serious discussion about the efficacy of the death penalty in this country.

We can all thank Speedy Rice who with the Benetton Corporation put faces on the people on death row and sparked not only a national debate but an international one as well.

And Lis Semel who begs, cajoles and guilt trips any corporate firm she can find to take on pro bono death penalty cases.

People like Steve Bright, George Kendall, Judy Clarke, Jim Liebman, David Bruck, Jill Miller, John Blume, Scharlette Holdman, Bryan Stephenson, Sister Helen Prejean, Jim Ellis . . . The problem when you start acknowledging people's work is that you always leave someone out. And I don't mean to do that. But the point is that everyone who does this work deserves equal credit for getting this country to focus on the death penalty in a way it never has before.

People like Steve Aarons, Kari Converse and Ray Twohig here in New Mexico who kept on aggressively representing their clients in the Torreon Cabin case and who finally convinced the prosecutors that their clients were innocent. People like John Holdridge. Who Denny LeBoeuf has described as a "one man band" working without a secretary or a salary, taking appointed capital cases in Mississippi and Louisiana and struggling to get by on what the courts in those two states grudgingly give him. Jack kept doing this work after the closing of the Resource Centers, while Louisiana's Row got bigger and the pool of experienced capital litigators shrank.

Jack was the leader of a team of lawyers - Nick Trenticosta and Michele Fournet in Louisiana and the Minneapolis civil lawyers - Steve Pincus and Chick Lloyd, who were responsible for getting Michael Graham and Albert Ronnie Burrell released from Louisiana's death row.

Ronnie and Michael are free because of post-conviction lawyering and investigating, led by the brilliant and sustained efforts of John Holdridge, who investigated the witnesses, wrote the pleadings and conducted the hearing in Michael Graham's case, won the judgment from the district court, and then negotiated with the state for another agonizing eight months, while the new prosecutors decided how to look good while admitting that these two men were completely innocent and should never have been tried for the crimes in the first place.

This was a prosecutorial and police misconduct case. Faced with the daunting task of convicting and sentencing two men to death without a shred of physical evidence or an eyewitness to the crime, the state lied and hid favorable evidence. The state also sponsored the testimony of a jailhouse snitch whose nickname was "Lying Wayne" and who was demonstrably mentally ill, had been convicted 7 times of various offenses, and who perjured himself on the stand with the prosecutor's knowledge.

Finally, a fact that was missing from virtually every news story on the case was that Ronnie Burrell has mental retardation. Ronnie is a gentle, bewildered soul with no ability to comprehend what happened to him. He was, worse still, incapable of helping himself when this nightmare began, of dealing with the police or the prosecutor or his own trial lawyer. He does not read or write, he cannot remember his numbers, and when asked to explain proverbs he fails because he cannot think abstractly, not even a little bit. ("What does `Don't cry over spilt milk' mean, Ronnie?" "It's a rule," he said. "Like, `Don't run too fast.' ") Asked to explain concepts like legal rights, evidence, and proof, he falls silent, sorry to be disappointing his hearer. Then he says one or both of the two sentences he repeated every day for 14 years. "They got the wrong man, you know. I didn't kill those two old people."

For years Ronnie didn't know he was on Death Row, although he always knew he was innocent. The other inmates on his tier even wrote Nick Trenticosta a letter years ago, to say that they all believed he was innocent. A couple of them called in a panic the day that Ronnie was finally released, because the guards had threatened to give him a bus ticket and his $10 check and let him out before his lawyers arrived. ( "Ronnie can't handle that" one inmate said. "Somebody gotta help him with his stuff, you know.") Ronnie's innocence, and his mental retardation, illustrate how brutal and wrong it is to try to make a system designed for an adult fit a person with the understanding of a child. Our mentally retarded clients are vulnerable at every stage of the proceedings, but instead of protecting them, as the law requires in other situations, the government takes advantage of their vulnerability, particularly in capital cases.

When we are talking about the issues in Johnny Paul Penry's case currently pending in the Supreme Court, we should be pointing to Ronnie Burrell, who came within 17 days of being executed for a crime he did not commit. As these stories become known and as the state and federal government become exposed for their manipulation of the process, each and every jury we face becomes more willing to listen to and suspect that this sort of deception is going on behind the scenes. And every case you try adds to the public's awareness of what the death penalty really means.

In my experience, how you see the world depends on where you sit. And if you sit in the chair that says we still have the death penalty and it's not going away, it's a pretty bleak world; but if you sit in the chair and see the year 2000 as a momentous time for us, it's a very different and much better view. This was a year in which the public opinion in this country about the death penalty changed. Former supporters of the death penalty joined long-time critics in raising concerns about the accuracy and fairness of capital punishment in America. Even conservative voices such as those of Rev. Pat Robertson, Oliver North, and George Will voiced strong criticism of the death penalty.

In January of 2000, in Illinois, Governor Ryan announced a moratorium on executions prompted by the 13th exoneration of a death row inmate during the same period that the state had executed 12 people.

In February, 2000, the Gallup Poll revealed that public support for the death penalty had dropped to its lowest level in 19 years. Other polls throughout the year found that 64% of Americans support a moratorium on executions until issues of fairness in capital punishment can be resolved.

A CNN/USA Today/Gallup Poll shows that only a slim majority (51%) of American believe the death penalty is applied fairly. 80% believe an innocent person has been executed in the US in the past five years and 46% believe that an innocent person was executed in Texas during George W. Bush's tenure as governor.

In March, the New Hampshire House of Representatives passed a bill to abolish the death penalty. In May, the Senate also passed the bill. But then it was vetoed by Democratic Governor Jeanne Shaheen.

Last June, researchers at Columbia University Law School, led by Professor Jim Liebman, Professor Jeffrey Fagan and Valerie West, published the most comprehensive review of modern death sentencing. They studied every completed death penalty appeal over a 23 year period (1973-1995). And what they found was shocking to many -- although I suspect not a surprise to many of you:

In 68% of all completed cases, a reviewing court found serious error requiring the death sentence or underlying conviction to be overturned, necessitating a re-trial. In other words, courts found serious reversible error in nearly 7 out of 10 capital cases that were fully reviewed during the study period.

After state courts threw out 47% of death sentences due to serious flaws, a later federal review found "serious error" (error undermining the reliability of the outcome) in 40% of the remaining sentences.

From a sample of cases that were retried after correcting for the errors, the death penalty was widely repudiated: 82% of the defendants did not receive the death penalty and 7% were completely exonerated.

In July, the ABA's new president, Martha Barnett, urged the legal profession to support a moratorium on executions.

In September, a review of the federal death penalty by the US Dept. of Justice found racial and geographic disparities. It showed that 80% of the cases submitted by federal prosecutors for death penalty review in the past five years have involved racial minorities as defendants. In more than half of those cases, the defendants were African-American.

In response to the release of that report, Senator Russ Feingold introduced the Federal Death Penalty Moratorium Act of 2000.

In October Earl Washington was granted an absolute pardon by Virginia Governor Jim Gilmore after DNA tests confirmed his innocence after 17 years in prison, including 9 years on death row.

William Nieves was freed from death row in Pennsylvania when a jury acquitted him of a 1992 murder after the Penn. Supreme Court had granted him a new trial.

In November just hours before his execution on November 22nd, North Carolina death row inmate Marcus Carter had his sentence commuted to life in prison without parole by Governor Jim Hunt who cited questions that had been raised about the fairness of his trial.

Finally, in December, Frank Lee Smith was exonerated after DNA testing. Unfortunately, Mr. Smith, who had spent 14 years on death row, had died of cancer before he was cleared.

More recently, in Massachusetts, FBI documents revealed that four men were erroneously convicted and sentenced to death in 1965 -- thirty-three years ago. All had been sentenced to die in Massachusetts' electric chair for the murder of Edward Deegan. They were spared in 1974 when Massachusetts abolished the death penalty and their sentences were commuted to life in prison. One was released in 1997 when the governor commuted his sentence. Two died in prison and the fourth just had his conviction overturned and the case officially dropped when FBI documents revealed that the main witness against the four men at trial, a hit man cooperating with the prosecutors, later admitted he had fabricated much of his testimony. Those recently revealed documents show that informants had told the FBI before the murder that Deegan would soon be killed and by whom, and a memorandum after the crime listed the men involved. Neither list included the four men who were convicted and sentenced to death. The Suffolk County District Attorney acknowledged in what was still a bit of an understatement that "a great wrong was committed."

There is international pressure as well to remove the death penalty as a political gambit. In a recent op-ed piece in the Washington Post, Felix G. Rohatyn, the former U.S. Ambassador to France from 1997 to 2000, expressed his concern about America's use of the death penalty:

During my nearly four years in France, no single issue evoked as much passion and as much protest as executions in the United States. Repeated protests in front of the embassy in Paris, protests at our consulates and, just recently, a petition signed by 500,000 French men and women delivered to our embassy in Paris were part of a constant refrain. My colleague in Germany, Ambassador John Kornblum, had indicated to me that he was challenged as frequently in Germany on this issue as I was in France.

. . . The United States is seen as executing people who have not had appropriate legal assistance, people who may be innocent, people who are mentally retarded as well as minors. We are viewed as executing disproportionate numbers of minorities and poor people, and there is no compelling statistical evidence that the death penalty is a greater deterrent to potential criminals than other forms of punishment. . . .

Some 300 million of our closest allies think capital punishment is cruel and unusual and it might be worthwhile to give it some further thought. A few weeks ago, the Supreme Court of Canada in a 9-0 decision refused to permit the extradition of Glen Sebastian Burns and Atif Ahmad Rafay to the United States without assurances that the State of Washington would not seek the death penalty. In its opinion, the Court noted the moratorium imposed in Illinois, the exoneration of people on death row, Professor Liebman's study, and the growing debate in this country about the fairness of capital punishment.

Make no mistake about it, during the Bush administration there will be a concerted effort to negate and ignore what is a mounting consensus among people that the death penalty doesn't work.

But they cannot address the fact that the process itself is flawed. DNA evidence has provided concrete evidence that innocent people are convicted and sent to death row and the possibility of executing an innocent person has become very real to people. We are indebted to this scientific process for getting people to focus. But the security of scientific evidence has created two classes within the death row population. The public is focused on innocent people, but as we all know many on death row would not be helped by DNA. The unspoken suggestion is that we commit our efforts and resources, including legal assistance, only to the innocent.

When it comes to innocent people who were wrongfully convicted of capital murder, DNA has been responsible for a small percentage of the exonerations. Less than 10 percent of the 95 death penalty exonerations since 1983 were the result of DNA testing. Professor Liebman's national study confirms what the 13 Illinois cases taught us: the causes of most miscarriages of justice in capital cases are -

-- unconscionably poor representation,

-- unconstitutional and unethical practices by police and prosecutors, --- and some related factors such as bad science, unreliable eyewitness testimony and reliance on jailhouse informants.

The causes of wrongful convictions are embedded in our criminal justice system, especially the system that ensnares poor people accused of capital crimes. And, of course, with very, very few exceptions, only the indigent face the death penalty. These deficiencies, which Governor Ryan referred to as "flaws," are profound and pervasive, and make it extremely difficult to identify the innocent.

More important, the current fascination with innocence has obscured the ugliest and most important truth about the capital punishment system: while too many innocent men and women are on death row, a much larger number are there because there is no adversarial system of justice for the majority of people who face the death penalty who are all poor and who, overwhelmingly have been convicted of killing a white person and a majority of whom are men and women of color. This is the reality of the work capital defenders do everyday.

So, first, the challenge for the defense in our cases, and at every opportunity we have to speak publicly, is to move the long-overdue debate from innocence to process; to understand that what makes death verdicts unreliable is the process itself; to enable Americans to face the ultimate facts: that the administration of capital punishment is inherently biased against the poor and people of color; that it sanctions and even promotes dishonest police and prosecutors. And this process is intolerable.

And we know it's intolerable. Without being aware of it, the system causes us to become hardened, causes us to take out on ourselves and our clients the frustrations we feel from being beaten down by judges and unethical prosecutors -- as we face men and women who believe it is okay to cheat if you think you are right. When these people are caught and a conviction is overturned, they smugly say, there is a safety net and the system does work. (However, someone spending 16 years on death row for a crime they didn't commit is not an example of the system working.) Yet many prosecutors and politicians are doing everything they can to limit the availability of habeas relief, to shorten the time in which such petitions must be brought, and to leave men and women on death row without lawyers.

These battles take their toll on us. And when we begin to list all the ways the system has evolved to dehumanize the indigent and the despised, we can head down a path that looks gloomy, dark and overwhelming. However, what we cannot forget and what we must learn to look at clearly is that what brings us together at programs like this is our belief in the sanctity of life. What makes our work different and unique is that we plan, strategize -- and conspire, if you will -- to use compassion, mercy and forgiveness to stop the machinery of death.

And so, I hope that we can take everything we can from our time together to fashion the tools we need to continue our work creatively and to take from our colleagues the strength and assurance that we are not alone.

Reprinted from the Abolish list.