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Luring Pro Bono Lawyers For Death Row's Forgotten

One of the three Preston Gates lawyers listening shuddered.

"We've never, to my knowledge, done a death penalty case here," Susan Jones said. "We're not criminal lawyers."


At the U.S. Courthouse in the District, Robin Maher tries to persuade lawyers to take on death penalty appeals. The American Bar Association and other groups estimate that hundreds of inmates lack representation. (Katherine Frey -- The Washington Post)

"Neither was I," Maher stressed.

"I can hear in our executive committee, 'What are the hard-dollar costs?' " Jones said.

"They're all over the place," Maher answered. Still, no case comes cheaply.

As for the most challenging cost:

"There's so much riding on it," Jones began.

Maher understood immediately. "Of course, it's possible," she said, possible that a volunteer lawyer could have to walk a client to execution. "The only thing I can tell you," she continued, "is that you're giving [them] some hope and advocating for them."

When the ABA began its project nearly two decades ago, most state courts or laws afforded little assistance to death row prisoners once their initial appeal was concluded. Few gave them the right, or the public money, for a lawyer.

Congress decided in 1988 that a capital inmate was entitled to representation during a federal appeal, and it created a series of centers staffed with highly specialized defense lawyers to provide for that. Supporters praised their work as essential to the system's integrity, but critics decried them as obstructionists bent on destroying capital punishment from within.

After seven years, opponents successfully terminated funding; most of the centers closed soon after. Simultaneously, Congress passed sweeping changes to the death penalty, collapsing the time period an inmate has to appeal into the federal courts and requiring those judges to defer far more to their state counterparts' rulings on constitutional issues.

Advocates have seen progress since then, but it has been scattershot.

The Mississippi Supreme Court decided in 1998 that it "no longer could sit idly by" and allow a flawed system to continue. From interviewing old witnesses to uncovering new evidence to filing a habeas corpus petition claiming errors in conviction and sentence, "indigent death row inmates are simply not able, on their own, to competently engage in this type of litigation."

Virginia was shamed into legislative action in part by the case of Earl Washington Jr. The mentally retarded farmworker was just a couple of weeks away from execution when a cellmate persuaded a lawyer visiting their prison to intervene. With a New York firm's aid, Washington ultimately was cleared through DNA evidence.


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