By Russ Bleemer
New Jersey Law Journal
February 12, 1996
John Peoples Jr. says he'd be dead by now if it weren't for William Cagney.
Peoples has spent the past 12 years on death row in a state prison in Atmore, Ala. He was convicted and sentenced to die in 1984 for the brutal murder of three members of a family near Birmingham. He admitted to being at the scene, but he says the state's star witness actually committed the murders. Peoples credits Cagney, a partner in the Edison office of New York's Lane & Mittendorf, with keeping him out of the death chamber so far.
"Down here," said Peoples last week in a telephone interview from prison, " you get 100 percent more respect using an attorney from up north."
The ability of Northern lawyers to command the respect of Southern judges is bringing Bryan Stevenson, the head of the Alabama Equal Justice Initiative, on a recruiting trip to New York and New Jersey next week. "This truly is the third world," says Stevenson. "There are dozens of people who have not been represented effectively for years and are facing execution."
The need is greater now because Congress has cut the funding for death penalty resource centers in 20 states by $21 million last year. So while the day New Jersey executes its first prisoner is still to come, New Jersey lawyers are being asked to step up their efforts on behalf of convicts in other states.
Stevenson expects to speak at bar associations here next week. In the background is the question of whether the well of northern volunteers could soon dry up. The need for help with habeas corpus petitions hasn't reached a crisis stage in New Jersey. At some point, death penalty experts say, northern attorneys who have been inclined to take the cases will have enough business to keep them busy at home. That's what has happened in Pennsylvania already, they say.
Few states have an agency like New Jersey's Office of the Public Defender, which handles nine out of 10 of New Jersey's post-conviction cases. The 29-year-old, 210-attorney state agency provides representation in the cases, including such at the appellate level.
Most southern states don't have any public defender agency, leaving those convicted of homicide to depend on the death penalty resource centers. The centers' funding is expiring under an interim measure Congress passed during the current federal budget fight. An appropriation for the federal judiciary specifically excludes paying for the centers as of next month.
Stevenson's nonprofit Equal Justice Initiative, in Montgomery, Ala., succeeds his defunct Alabama Capital Representation Resource Center. Stevenson, a MacArthur Foundation fellow, used grant money to establish his new center in October.
Stevenson says his staff has shrunk from 13 to nine as his caseload has increased. Last year, Alabama executed two convicts. The state now has 140 on death row, up from 33 in December 1988, according to the NAACP Legal Defense Fund. Stevenson says 240 people are awaiting Alabama capital murder trials.
And there are proposals in Congress linked to anti-terrorism legislation that would restrict habeas corpus actions, which would make capital cases now before federal judges even more critical.
Nationally, 56 convicts were executed last year, the most since the U.S. Supreme Court reinstituted the death penalty in 1976. There now are more than 3,000 death-row convicts in the nation, up from about 2,150 at the end of 1988.
Not Only Megafirms
It's at least a minor miracle that there are law firms still signing on to these battles. But some New Jersey firms have. Currently working on cases with Stevenson's center are Morristown's Riker, Danzig, Scherer, Hyland & Perretti, and Shanley & Fisher, and Roseland's Lowenstein, Sandler, Kohl, Fisher & Boylan.
And William Cagney, a partner in the Edison office of New York's Lane & Mittendorf, has represented Peoples for nearly three years. "When you take something like this on, you think you're taking it on for a deep-seated philosophical reason," he says, "but after you take it on it's clear that you're doing it to serve a client that is in the most critical need of any client you'll ever have."
When he speaks to bar groups next week, Stevenson will have to address firms' biggest fear in the cases -- the cost. Traditionally, the profession perceives pro bono matters as good will only national megafirms can afford.
Stevenson says that impression is not founded. "The expense on all this stuff is sometimes exaggerated," he says, adding that if the rates used to calculate the time are like those for big corporate matters, "then the bills get enormous. But I see this as pro bono work in a classic sense. Sure, they require time. Time is money. But it is not like firms have to make a huge outlay of assets."
Adds Stevenson, "We have had lawyers at very small firms, and even some solos, who, with some [local] support, are very efficient in managing and litigating these cases."
Nevertheless, death penalty defense eats up notorious amounts of billable time, often making the cases extremely expensive. Hiring investigators and traveling to the South adds to the costs. The cases last for years.
There's also little chance of a nice Hollywood ending. For example, last month, a Virginia man convicted of murder and armed robbery in a 1985 holdup exhausted his appeals and was executed by lethal injection. His attorney, David Wadyka, special counsel to Roseland's Hannoch Weisman, strongly urges firms to heed Stevenson's call and get involved in death penalty litigation.
But Wadyka, obviously pained after four years of representation in which he headed a five-lawyer Hannoch Weisman team, said resignedly last week, "Most of these things wind up where we wound up: You're seeing your clients executed."
Stevenson doesn't argue philosophical points against the death penalty in his pitch to get lawyers to take capital cases, and appears to accept that most people favor it. Although he does not back down from criticizing Congress and disagreeing publicly with prosecutors who say extensive appeals make imposing the death penalty too hard, Stevenson instead emphasizes convicts' solitary desperation and appeals for lawyers to help preserve the sanctity of the Constitution.
The Death-Row Railroad
Under Alabama's counsel assignment system, inexperienced attorneys get assigned tough cases in small towns where they know everyone and may even fear reprisal for tough advocacy. Fees cap out at $1,000 for the trial phase of a case. As a result, few issues are preserved for appeal, Stevenson says, and pursuing appeals is difficult.
Stevenson believes that in many cases the Spartan defense system, fueled by partisan judicial elections and racial prejudice, has railroaded the accused to death row without due process. Even out-of-state lawyers who support capital punishment, Stevenson says, work on the cases, because of the grave constitutional issues caused by the elimination of resources. The point of doing so, he says "is to uphold the bill of rights."
Though he didn't work with Stevenson's office in his Virginia case, Hannoch Weisman's Wadyka vindicates the Alabama attorney's view. "I'm not an abolitionist," says Wadyka. "These really are people who are truly in need of quality representation."
Over the years, Stevenson and his staff have beefed up their assistance materials as they have farmed cases out. He says 35 out of the 140 Alabama death row appeals are now being handled by law firms outside the state; most of the assisting firms are in New York, Philadelphia and Boston. The outside firms usually take the cases well along in the state appeals process and do the bulk of their work on the federal appeals. The Equal Justice Initiative summarizes recent U.S. Supreme Court holdings, provides pleadings and reviews documents for the outside firms. "We can cut the time in half," Stevenson says.
New Jersey firms taking the Alabama cases uniformly try to downplay the ideological and expense aspect of the cases. Most attorneys working on the cases are against the death penalty; all say it is crucial, even rewarding, pro bono work.
@ Riker, Danzig partner Benjamin Michel says his firm took the case of one of two men accused of murder and sentenced to death because there "seemed to be a very compelling case for the fact that these two men are innocent of the crime."
Michel said out-of-pocket expenses in the Alabama appeal -- mostly for new witness investigations -- so far have cost the firm about $50,000, and the firm only signed on to the case last year.
@ Shanley & Fisher partner Brian McDonough says his partners approved the firm's death penalty work "without any hesitation." McDonough, based in the firm's New York office, says that since 1991, Shanley & Fisher has spent about 2,000 hours on the case of a Mt. Vernon, Ala., man sentenced to die for his part in a fatal armed robbery. Using a blended rate, he says, the firm's hours tally to about $300,000. The firm has spent "tens of thousands" in disbursements, he says.
@ Lowenstein, Sandler associate Bruce Rosen, who is overseeing the firm's work on an Alabama capital case nearing a federal hearing notes, "People say, 'How can you do that?' ... It's taking a lot on yourself. But what are you going to do, take only insurance coverage cases? This is what you go to law school to do, to be a value to society." He says the firm has strongly backed his work on the case.
@ Lane & Mittendorf's Cagney -- who, like Rosen and McDonough hooked up with Bryan Stevenson after returning a postcard expressing interest in a recruiting program by the American Bar Association's Washington-based Post-Conviction Death Penalty Representation Project -- says his experience proves that a small firm can do the work. Although his firm has nearly 60 attorneys, he says only he, two associates, a paralegal and a secretary in the firm's six-attorney Middlesex County office are working on the case.
Cagney, a former assistant U.S. attorney, speaks about John Peoples' case with almost religious conviction. Peoples, now 39, was arrested several days after a husband and wife and their 10- year old son disappeared from their lake house in St. Clair County, Ala. Peoples eventually led investigators to their bodies. Though he confessed to his presence at the crime scene, he has maintained his innocence and says that the state's chief witness killed the family.
Peoples and Cagney have been waiting for a year for a federal magistrate to decide whether there will be a new evidentiary hearing based on their habeas corpus petition. The delay is in part attributable, Peoples says, to Cagney's presence in the case. "When you got a new attorney from outside the state," says Peoples, "it makes a world of difference."
So far, Cagney says his firm hasn't reached the most difficult part of the case in terms of costs because there haven't been many investigation expenses. "It hasn't hit us yet," he says, adding, "God willing, we will get a hearing." Are his partners prepared? He says simply that "They agreed to it, and they see pro bono work as an important part of our professional responsibilities."
@ Hannoch Weisman's David Wadyka, having witnessed the execution of his client, Richard Townes, on Jan. 23 in Virginia, says that the economic realities can't be avoided. "The first thing I would say to the firms Stevenson is pitching is to make sure that you understand that it is a long process and an expensive process. Don't go into this halfway with the idea that you can bail out and be greeted with success."
Wadyka says Hannoch spent about $1 million in attorney time since 1991, using a team of five attorneys and a paralegal. Looking back, he says, the benefit of the case was the satisfaction that Townes "got the best representation he could possibly have gotten. We could not have done anything more than we did."
(New Jersey Law Journal is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
