A Cause That’s Lost Its Appeal

Lawyers for death-row inmates form charities to continue work after federal funds are eliminated

From a locked and sterile concrete room on Missouri’s death row, Joe Amrine calmly recalls the crime that landed him here — murdering a man with an ice pick.

As he speaks, he taps his long fingernails on a hard table. He has told this tale many times, and he doubts that telling it once more will help.

But when the subject shifts suddenly to his lawyer, Sean O’Brien, he lights up.

“Let me be honest with you,” he says. “I have been in prison a very long time, and I’m tired. If it weren’t for Sean, I’d be dead by now. My other lawyers just went through the motions. But with Sean, he’s on a crusade.”

Mr. O’Brien runs a non-profit law firm in Kansas City that only represents clients appealing death sentences. His is one of about a dozen such charities that were formed to fill a void created in April 1996 when Congress, as part of a larger effort to reduce federal funds for legal assistance, ended a program that provided lawyers for death-row appeals. In the program’s last year, the government financed 20 so-called death-penalty resource centers at a cost of $20.8-million.

Some states, such as Florida, stepped in to insure that each death-row inmate had a lawyer at all levels of appeal. But many other states did nothing.

As a result, most of the centers, such as the one run by Mr. O’Brien, transformed themselves into non-profit organizations and now seek donations from foundations and individuals. Only a handful of the non-profit law firms that represent death-row inmates have had much success raising money, in large part because of the unpopularity of the cause.

“People don’t like to give money to Ted Bundy,” says George Kendall, head of the capital-punishment program of the NAACP Legal Defense and Educational Fund, referring to the serial killer executed by Florida in 1989. “And foundations aren’t coming in to fill the void here.”

The fledgling death-penalty organizations say they are hopelessly understaffed and underfinanced, overwhelmed by a death-row population and execution rate that continue to rise. About 3,200 people are on America’s death rows, a number that has more than doubled since 1985. And more people — 74 — were executed last year than in any year since 1957.

“The state of things now is a disaster,” says Elizabeth Semel, who monitors the situation for the American Bar Association, which last year called for a moratorium on executions. “It’s a crisis. You pick any extreme noun and it would not be hyperbole.”

Fund raising is a particularly difficult challenge. “The image people have is that these are perverse monsters who should be terminated, not given endless appeals,” says Sister Helen Prejean, author of Dead Man Walking, the best-selling book about death row that inspired the 1995 movie of the same title. “When I go to donors, they are thinking of starving kids and battered women and a million and one other causes before death-row inmates.” Through her non-profit organization, St. Joseph Medaille, Sister Prejean ministers to death-row inmates and their victims’ families.

While the Constitution requires a defendant to have a lawyer at trial, the Supreme Court has said that that guarantee does not extend to appeals. But in 1988, at the urging of federal judges who worried that death-row inmates were not getting adequate representation, Congress created the death-penalty resource centers.

Resource-center lawyers represented inmates in their post-conviction appeals or recruited and advised other lawyers on death-penalty cases. In 1995, the centers provided direct representation in 453 cases and guidance in 953 others.

Supporters say the centers were necessary because many lawyers were unwilling to take such cases without a center’s assistance. Even for experts, the average death-penalty appeal requires 500 to 750 hours of legal research and factual investigation, as well as familiarity with the complex and highly specialized appellate process.

“The stuff is Greek, even to those who practice criminal law,” says Richard Dieter of the non-profit Death Penalty Information Center in Washington, which released a report last July that says that the risk of executing innocent prisoners has risen dramatically since the federal government cut off support to the centers.

Critics, however, say resource-center lawyers abused the system by filing frivolous appeals. “They really slowed down and were superfluous to the process,” says Paul Kamenar of the Washington Legal Foundation.

What’s more, says Marvin White, the assistant attorney general who handles death-row appeals for Mississippi, too many resource-center lawyers appeared to be more interested in politics than justice. “Most of them do it because they don’t believe in the death penalty,” he says. “These suits are about trying to make it too expensive to enforce” the death penalty.

Rep. Bill McCollum, the Florida Republican who chairs the House Judiciary Committee’s Subcommittee on Crime, worked to abolish the federal resource centers. He says the government should not have to pay for endless appeals of death-row inmates.

“That’s a bar-association responsibility, not one for the federal government,” Mr. McCollum says. Besides, he says, the new system “seems to be working pretty well.”

But many lawyers who represent condemned men on appeal would disagree. They say that there are now hundreds of death-row inmates who do not have legal representation.

“Most of the resource centers are a shadow of what they once were,” says Mr. Kendall, the NAACP Legal Defense Fund lawyer. “This is enormously difficult work. Things were bad enough without having to worry about paying the light bills.”

For example, under Mr. O’Brien’s helm, the federally financed Missouri Capital Punishment Re source Center in 1995 had a $1-million budget, seven staff lawyers, three investigators, and two secretaries. Now, Mr. O’Brien’s new operation, the non-profit Public Interest Litigation Clinic, works with a $280,000 budget, three lawyers, and one investigator. It still tries to do the same work, he says.

“There are so few of us doing it now in Missouri that we triage the cases,” he says. “It’s ridiculous.”

Janet Thompson, a public defender who represents death-row inmates in their initial appeals to the Missouri Supreme Court, says that without the resource center, defense lawyers are scrambling to coordinate appeals and find other lawyers to handle cases.

“People are picking up cases here and there, trying to be the little Dutch boy, sticking their fingers in the dike wherever they can,” she says.

The resource center in Georgia, which had received $640,000 a year in federal funds, cut its staff of eight lawyers to two. The South Carolina center, which had received $682,000 annually, lost three of its six lawyers.

In Mississippi, the $735,000-a-

year resource center closed when the government pulled out. “It blind-sided us,” says Jim Craig, the former director who is now in private practice in Jackson. “It just became an impossible situation. We had no money.”

Mr. Craig and his colleagues tried to raise private funds for their death-penalty work but found it hard to attract donations.

Stephen Bright of the Southern Center for Human Rights in Atlanta has faced similar problems. He says major corporation and foundation executives have told him that the cause is not a priority.

“The concept of charity here in Atlanta is that you represent the symphony, get your name in the program, and then you get more business that way,” says Mr. Bright, who helps raise money for his organization by teaching law-school classes at Emory, Harvard, and Yale Universities.

A few non-profit groups that represent death-row inmates have had some success. A South Carolina group, the Center for Capital Litigation, receives several small contributions each year from local law firms. Recently, it received a large gift from Judy Clarke, one of accused Unabomber Theodore Kaczynski’s primary lawyers. Ms. Clarke donated the $70,000 fee she earned from the State of South Carolina for serving as a lawyer for Susan Smith, the woman convicted of drowning her two toddlers.

In Alabama, Bryan Stevenson, a former resource-center lawyer, used a $250,000 MacArthur Foundation “genius” grant to help create the Equal Justice Initiative. The non-profit organization assumes responsibility for finding a lawyer for each of the 152 people on the state’s death row.

“The timing of the MacArthur grant was ideal because the resource center had just closed,” he says. “Suddenly, we became entirely dependent on private support.” Among the organization’s other supporters: the Public Welfare Foundation in Washington, which recently gave $50,000.

For his part, Mr. Amrine, the convicted murderer, says he understands why foundations and individuals are reluctant to donate to the struggling non-profit groups.

“If I was on the streets, I might not give money to help someone like me either,” he says. “But that’s only because people don’t know about death row. They don’t know how death-row inmates get messed around with in the court system. They don’t know how many death-row inmates can’t even get their attorneys to meet with them.”

Some non-profit groups had hoped to tap religious groups as a source of support — and donations. But thus far, most denominations appear to be more comfortable preaching against the death penalty than providing any direct support.

“What we’re starting to do is to educate the people in the pews about how people get on death row in the first place — why they don’t get a good lawyer,” says Frances Jett, a spokeswoman for the United Methodist Church. “I’m not sure the church is ready to pay for lawyers in court, but we’re willing to educate people.”

In the meantime, the executions continue at a record pace. When Missouri executes a condemned man — as it did five times last year — it straps him to a gurney in a special room near the prison hospital and injects him with a lethal three-drug cocktail.

By Mr. O’Brien’s count, his center’s work has saved 23 Missouri men from that fate. Most still remain imprisoned — some sentences were commuted to life and others still linger on appeal — but the men are alive.

One of them, Lloyd Schlup, had exhausted all of his appeals when Mr. O’Brien got his case. But Mr. O’Brien and his colleagues investigated anyway. They found new evidence, took it to the U.S. Supreme Court, and last year won a stay of execution less than eight hours before Mr. Schlup was scheduled to die.

Late last year, the U.S. Court of Appeals for the Eighth Circuit ordered a federal judge to take another look at Mr. Amrine’s case, using the new national standard of evidence that the Supreme Court established in Mr. Schlup’s case. The appeals court, noting that all the eyewitnesses against Mr. Amrine had recanted, said his case appeared to be even stronger than Mr. Schlup’s.

While Mr. O’Brien is opposed to capital punishment, he says that what drives him and many of his colleagues in this tiny fraternity of specialists is foremost the sense that everyone deserves access to a competent lawyer.

“I do this because it has to be done,” says Mr. O’Brien. “It’s not like I’m a corporate lawyer. If I drop dead there are not 50 clones to step in and take my place.”