But the devil is as much in the dollars. In Louisiana, where death row has nearly tripled in the past dozen years, legislators passed a right-to-counsel law but came up short on the funds.
"We tell [inmates], 'It's a bakery, take a number,' " said Denise LeBoeuf of the Capital Post-Conviction Project of Louisiana. Maher is scouting for representation for a LeBoeuf case that has had none for four years.
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)
"It's a damn serious issue," said U.S. District Judge Martin Feldman of Louisiana, who has urged local lawyers to volunteer on inmates' appeals. "I am a supporter of the death penalty, but I'm a very strong believer in as just and fair and good representation as humanly possible of those who face the ultimate punishment."
Of all states, Alabama is one of Maher's top priorities. It has no resource center, no statewide public defender, no requirement that a death row prisoner have an attorney to the end.
Jack Schafer, a retired partner at Covington & Burling in the District, worked 14 years on a case in the South. Before it ended in 2002, he and colleagues had expended tens of thousands of hours and the firm paid for countless experts and investigators.
"I tried like hell to find some Alabama lawyer to help us," the soft-spoken Schafer explained. "I had a feeling none . . . wanted to take on the establishment."
In some people's minds, most capital appeals are intentionally dilatory and frivolous. They have fought proposed federal grants to bolster post-conviction defense within states -- money that would go "to anti-death penalty groups for the defense of murderers and terrorists," Sen. Jeff Sessions (R-Ala.) declared.
His state's attorney general's office disputes that any condemned prisoners there lack lawyers. At least half of its roughly 140 appellate cases are defended by firms from beyond its borders, however.
"If the point is that somehow that's wrong, my point is, so what?" said Clay Crenshaw, the attorney general's chief litigator. As he sees it, the incursion stacks the deck in inmates' favor: Out-of-town lawyers arrive with deep pockets. "The state doesn't have the resources to combat that kind of power on the other side," he said.
Schafer never sensed that advantage. He'd gotten involved in Anthony Keith Johnson's appeal to see how the system worked. His client had been the only suspect of four to be tried for a deadly home burglary. Authorities agreed that he was not the killer but sought his death nonetheless. "All I knew, almost from the outset, was that he hadn't had a fair trial, and that was more important to me than whether he was guilty," he recalled.
Johnson asked Schafer not to attend his lethal injection; the lawyer isn't sure he could have handled it anyway: "I just couldn't bear to watch the guy get killed. Maybe out of guilt for having lost the appeal. Maybe like I let him down."
He still chokes at the memory. He still displays the foot-high statue Johnson carved for him from bars of soap mixed with glue. It is an ivory Jesus, arms outstretched.
An 'Admirable' Effort
The Seattle trip proved Maher's most successful recruitment, with Preston Gates and two other practices ultimately accepting four cases. Rejection is far more the rule, which is why she pursues any possibility. In passing, she heard about a small firm in Alaska that might be interested. Anchorage? Maher wondered skeptically. A four-lawyer shop willing to foot the time and expense?
Yes, said Feldman & Orlansky.