Category Archives: Death Penalty

Death row cases – my experience and how to get involved

Competition for training contracts and pupillages has never been so fierce. Aspiring solicitors and barristers face cut-throat rivalry, not just from fellow vocational course graduates, but from graduates in previous years, whose qualifications remain valid for up to five years. Hence, with demand for positions at an all-time high, becoming a lawyer for a living requires a demonstrated commitment to the law in practice, as well as in theory.

Legal work experience is the key. In the UK, however, opportunities open to students are, for the most part, restricted to passively observing. Such opportunities are undoubtedly valuable, but can hardly be described as work experience. Therefore, aspirants need to get ‘hands-on’ with real cases. For those who can afford to go, there are opportunities for assisting over-burdened lawyers in the United States.

Death penalty cases

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

One might assume that capital defence work pays handsomely — after all, what could be more demanding than fighting to save the lives of one’s clients?

In reality, though, capital defence lawyers are the poorest paid in the business, earning less, on average, than the UK minimum wage, while resourced by a tiny fraction of the budget that is available to prosecutors. As a result, capital cases tend to attract sub-standard defence lawyers, who know they can get away with shoddy work because society takes the view that their clients are lucky to be represented at all.

There are, however, a small number of dedicated defenders who believe that the law should be faithfully applied, even in cases involving the worst atrocities. These lawyers are the most noble in the US, but with the best will in the world, one lawyer can only be in one place at any one time. Hence, two charities, Amicus and Reprieve, were set up to assist by sending dedicated law students to help. In 2009, I was fortunate to be one of those students.

After attending two training weekends in London, I was sent by Amicus to assist Glenn Swartzfager at the Mississippi Office of Capital Defence Counsel.

Boarding the plane at Heathrow, I expected to be home in three months — the minimum commitment required. Little did I know that, in fact, I had tasted my last cup of Tetley for the next ten months! I funded this time abroad with personal savings and credit. And being a part-time Open University student, I was able to take my legal studies “on the road.”

In a moment, I will discuss three cases that I assisted with. But first, I think it’s important to say a few words about managing expectations.

As a budding practitioner, you may be wondering what an internship would entail for you. The best answer I can give is: it depends. A lot of ground may be skipped by assuming you are a diligent, reliable individual with a knack for legal research and writing. If so, you can improve your odds of getting away from the photocopier occasionally by taking the following three factors into account.

The time of year is important. If you go during the holidays, you may find yourself working alongside other interns — who, like you, will be trying hard to get a taste of real lawyering. As an Open University student, my holiday occurred when most law students are back in class. This made a big difference. Therefore, if possible, I advise going when other students are unable to. A gap year is probably the best way to achieve this.

Execution dates may be relevant. The lawyer I worked for handled post-conviction appeals. I saw how life at an appellate office is quiet until just before a client’s scheduled death… then things become manic. This is when you could be sent to find last-minute witnesses, or asked to conduct research into possible new legal arguments. Texas kills the largest number of inmates per year, but, for this reason, it attracts the largest number of intern applications. Therefore, you may wish to consider a state other than Texas. Of course, if you are placed with a trial lawyer, execution dates will have no bearing on the work you do.

Building trust is essential. The onus is on you to prove that you are reliable. Many prospective interns say the right things to get the placement, but after arriving, a few find their motivation waning unless the lawyer is constantly patting them on the back. Work hard and have faith that your diligence will be noticed.

Lastly, it is worth remembering that even if your whole internship were to be spent at a photocopier, that would still count as ‘paralegal’ work for your CV, not to mention the glowing reference you could expect from a lawyer who had more time to fight for clients because of you.

I was involved in three cases — those of Gerald Holland and Joseph Burns, in which I helped to write clemency petitions (presented to the State Governor after all legal appeals have failed), and the case of Jeffrey Davis, in which I was sent to find mitigation witnesses.

Gerald Holland

Gerald Holland

Gerald Holland

A combination of violent temper, alcoholism and brain damage led Gerald to murder a young girl who stayed at his home. With his execution just weeks away, I was given two issues to investigate.

Firstly, Gerald was pronounced clinically dead at age 13 after falling asleep next to a leaking gas fire. His brain was starved of oxygen for a number of minutes. Tests later found indications of brain dysfunction. The jury was not informed. While brain damage could not excuse what Gerald did, it might have helped the jury to understand why he did it.

Secondly, jurors were overheard making comments which cast a doubt on their ability to decide impartially.

It took two weeks for me and another intern to track-down and interview former jurors, and to research mental deficiency grounds for the clemency petition. The Governor denied it within two hours. Gerald was executed by lethal injection in May 2010.

Joseph Burns

Joseph Burns

Joseph Burns

Joseph was known for being a gentle, compassionate person. Then one day, he was dragged into a bad situation without warning, and his fate was sealed forever.

Joseph stopped at a motel with a friend. The friend proceeded to attack the manager and rob the cash stored in the motel’s money box. The pair fled. Unfortunately, agreeing to accept half of the cash would make Joseph “death eligible” when the manager died from violent injuries, which included stab wounds inflicted by a screwdriver.

Everyone, including the prosecution, accepted that it was the friend’s idea to steal the cash, and everyone agreed that it was the friend who struck the first blow. However, the friend gave evidence against Joseph in return for leniency. After blaming Joseph for most of the violence used, the friend is now enjoying freedom. Joseph was not so fortunate.

The jury that sentenced Joseph to die was given no information about his benevolent past, including that he had three loving daughters who suddenly faced growing up without a dad.

It took two weeks for me and another intern to track-down and interview Joseph’s friends, former lovers and other persons to whom he still mattered greatly (including his three children), and to research/write grounds for the clemency petition. The Governor denied it within two hours. Joseph was executed by lethal injection in July 2010.

Jeffrey Davis

Jeffrey Davis

Jeffrey Davis

When painful events shook his life, Jeffrey resorted to binge drinking and drugs. This tragically culminated in Jeffrey shooting his girlfriend one night, during a drink/drug fuelled argument. Jeffrey fled the scene in her car. The prosecution later argued that this made Jeffrey’s crime a combined murder and robbery, thus making him “death eligible” — even though the car was stolen after the shooting, so the victim’s trauma was made no worse by the theft element.

Within hours, Jeffrey had turned himself in to police. He confessed, claiming to have acted in an altered mental state after injecting cocaine. Jeffrey’s crime shocked the small-town community, who, until then, knew him to be a man of good character.

Twenty years later, I visited his town and was able to gather sworn affidavits from many people who remembered him. A number recalled Jeffrey doing odd jobs for them without pay. Best of all, I found a lady who had worked at the jailhouse where Jeffrey was kept until trial. The lady recalled Jeffrey being allowed out of his cell to wash police cars (which often had guns inside), as well as being trusted to accompany her to the supermarket to help fetch supplies. This proved that Jeffrey could be trusted to serve life in prison, where he would pose no threat to guards or other inmates.

Jeffrey’s death sentence was quashed by the Supreme Court in 2012. He has since accepted an offer of life in prison without possibility of parole.

Want to get involved?

There is information about becoming an intern on the Amicus and Reprieve websites.

Richard Murtagh is an LLM student at the University of Birmingham, he studied his LLB at the Open University.

This article originally appeared in Lawyer2B on 19th August 2014. Available at http://l2b.thelawyer.com/careers/pro-bono/death-row-cases-my-experience-and-how-to-get-involved/3024582.article. It is reproduced with the permission of The Lawyer2B. We are grateful for their support in this.

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Death penalty USA – News from Texas; the Rodrigo Hernandez case

Written by Mike Farrell in collaboration with Juliette Frangos.

This week on Thursday 26th January after 6 p.m. the state of Texas is scheduled to execute Rodrigo Hernandez by lethal injection, the first execution in Texas this year that looks likely to go ahead pending last minute appeal.

Case Background
Hernandez was convicted in 2004 of the 1994 kidnap, rape and murder of Susan Verstegen, an act following which he attempted to conceal the victims body in a 50 gallon drum.

Unfortunately during the original investigation a lack of evidence meant that the case went cold, remaining in limbo for 8 years. However when Hernandez was later imprisoned in Michigan for an unconnected offence, and on release in 2002 legally compelled to give a DNA sample for the national DNA database, his sample was matched with unidentified DNA samples recovered from the Verstegen case also on the database. Hernandez was then arrested and charged with murder.
On questioning he gave a detailed confession to the murder claiming to have been under the influence of drugs and alcohol at the time. He was subsequently found guilty on trial in Bexar County, Texas, and sentenced to death in April 2004, allegedly showing no remorse. He has been on death row since.

In light of the confession, DNA and the absence of any evidence that the trial was flawed, there is nothing suggesting the conviction was unsafe, and it is therefore not in question, Hernandez deserves to be punished. Only the capital sentence is in question here.

Since conviction, Hernandez has made numerous appeals against sentence, including applying for a writ of habeus corpus to the Texas State Criminal Appeals Court and the Supreme Court, all of which have been rejected. Appeals continued this month up until the 23rd January, again without success (A full procedural history is here).

Therefore pending any further appeals or last minute stays between now and Thursday night, sentence is on course to be carried out..

Capital punishment – Texas
Texas is far and away the most prolific proponent of capital punishment in the USA (see also here), averaging more than one execution per month, more than twice the rate of any other state. Texas has also conducted 477 executions since 1976, more than 4 times that of the next most prolific states, Virginia and Oklahoma.

These are extraordinary figures, especially considered against other states such as California which has a much larger death row population, and yet has undertaken only 13 executions since 1976.

The high number of executions in Texas may of course largely be explained by the republican / conservative background of that state, a political outlook which traditionally leans to capital punishment. There may be other reasons some of which can be considered here which relate to the history and constitutional makeup of the state with regard to elected appellate judicial office. Whatever the reason, the figures appear excessive, and regardless of public or political support capital punishment is rightly becoming more unacceptable as indicated by the recent positive moratorium on capital punishment issued by the Governor of The state of Oregon. In addition, Texas is not the only republican state in the USA, so something or someone else may be responsible.

The Governor
In the ten years that he has held office, Rick Perry as Governor of Texas has authorised and overseen the largest number of executions in the history of the USA for a single Governor, more than 230 executions in the last decade, almost half the number of executions that have occurred over the last 35 years in Texas, indicating a marked and certainly questionable acceleration of capital punishment over a decade. He is known for radical views on capital punishment, gun ownership, same sex relationships and religion and has in the past vetoed a ban on the death penalty for mentally retarded inmates.

He recently launched a presidential campaign, but withdrew in January 2012 following widespread criticism of a homophobic video that he released to ‘support’ his campaign.

With regards to capital punishment, Mr Perry claims not to lose much sleep over it, has stated that he has no problem authorising capital sentences to be carried out, and has never worried that Texas may ever have executed any innocent persons. This in itself is quite disturbing given the reported case of Cameron Todd Willingham, executed in 2004 for the alleged murder of his three daughters in what was claimed at the time to have been an act of arson on his own home. Following Willingham’s execution however it was discovered and reported that in fact there was no evidence of arson at all, bringing the entire trial, conviction and sentence sharply into question.

An investigation was carried out, but just prior to it reporting, the chair of the committee undertaking it was replaced by Perry, an act which effectively cancelled the inquest, and swept the entire affair under the carpet.

The question however remains; was an innocent man executed, and if so, wouldn’t this case have raised an irrefutable argument against continuing capital punishment in Texas? The possibility that it may well have been is argument enough to support an end to capital punishment in Texas and elsewhere. Instead however it appears that the Governor would rather bury the case in favour of his own personal political stance.

The Texan method
Texas like many other capital states of the USA currently advocates lethal injection as its preferred method of supposed humane executions of death row inmates. Please see link above for the full procedure, which in brief involves the following:

* Hernandez will be transported from his death row facility to the execution unit at Huntsville.
* He will undergo a strip and cavity search, before being confined in a holding cell.
* He may be allowed family visits during the morning.
* He will be offered a last meal but will have no choice in what is offered.
* After 6 p.m. he will be led to the execution chamber, prepared and secured to a gurney.
* Intravenous catheters shall be inserted into a suitable vein in his arm or elsewhere in his body.
* Witnesses will be brought in including victim witnesses, his own family if attending, and select
media representatives.
* The execution will be authorised to proceed.
* Hernandez will be allowed a brief final statement.
* The drug team will be instructed then to administer the sentence, with drugs being administered in sequence.
* The condemned would be expected to be confirmed as medically dead in about 7 minutes from the beginning of the injections.

This method of execution has long been considered humane by some, however it has generated much controversy, including:

– A scandal throughout the European Union where it was found that capital states having exhausted their own supplies of the death drugs used for capital sentences were illicitly importing large quantities from Europe, a practice the EU is now apparently seeking to prevent. Some companies took it upon themselves not to supply their products while they were being used for capital purposes.

– The fact that medical practitioners are barred from administering the drugs under the Hippocratic oath as well as showing a true hypocrisy regarding the ‘justice’ of the procedure, means that administering the sentence falls into the hands of prison employees. There have been alleged stories of incorrect dosages being used, and other instances where the convict has suffered greatly during the procedure. Consider for example the botched34 minute torture ofAngel Nieves Diaz in Florida, 2006.

– The ongoing search for a more humane form of execution in itself proves that deep down inside, we all know that killing another person is wrong. Someone will always have to have blood on their hands regardless of the method or justification, legal or otherwise.

Written by Mike Farrell in collaboration with Juliette Frango and reproduced here by kind permission of both authors.

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