THROWING SAND IN THE MACHINE

THE LONG, GRITTY STRUGGLE OF LAWYERS WHO FIGHT THE DEATH PENALTY.

By Hudson Sangree

To the anti–death penalty lawyers he’s taught at the Northeastern University School of Law, Dan Givelber is a kind of patron saint in the rarefied world of academia, an advocate for lost souls.

For the past twenty-five years, Givelber, a former dean and veteran faculty member, has served as a lawyer of last resort for condemned inmates while training students in the arcane yet grueling craft of death-row appeals. Former students who have followed in his footsteps often cite Givelber as an inspiration. But like many of them, he didn’t set out to fight capital punishment. The fight found him.

Givelber, who graduated from Harvard Law School in 1964, began his career working as a federal prosecutor, then as a civil litigator at a large New York law firm. He eventually turned to teaching, and was well along in his academic career when, in 1979, he suddenly found himself thrown into the world of murders and executions: A former student asked him to take over her appeals for a condemned Georgia man. Givelber agreed to help.

He didn’t know then he would spend the next ten years working to stop the execution of Billy Moore, an Army private who in 1974 shot and killed a seventy-seven-year-old man during a home-invasion robbery. Though the effort was exhausting, it was among the most rewarding jobs of his career, Givelber says.

“It’s like everything else at Northeastern,” he says. “The idea of co-op is that if you sample enough work, you find something that resonates with you. You find work you can feel good about doing.”

About a dozen Northeastern law graduates, many of them Givelber’s former pupils in his Certiorari/Criminal Appeals Clinic, spend their legal careers trying to spare the lives of some of the country’s worst killers. These lawyers labor, often in Texas or the Deep South, on behalf of men and women who have taken the lives of others in the most cruel or reckless ways imaginable. Most of these clients are unquestionably guilty.

Some critics might call such efforts horrifying or outrageous. Even for people who oppose the death penalty on principle, an intense devotion to saving murderers can be hard to grasp. But the lawyers say they aren’t just defending clients; they’re defending the law and the Constitution, and fighting the terrible wrong of government killings.

“They’re zealots,” says Jack Levin, director of Northeastern’s Brudnick Center for the Study of Conflict and Violence. “They’re against the death penalty on philosophical grounds. It’s not even relevant whether the person is innocent or guilty. They just believe the government shouldn’t be taking human life.”

Some Americans firmly believe in capital punishment. Others just as firmly don’t. But for the greater number of people in the middle, the efforts of the Northeastern lawyers and others like them seem to have already increased doubts about the death penalty, according to recent opinion polls. Is it racially biased? Are innocent people being executed? Should the government, which can’t even be trusted to fill a pothole, be trusted to kill its own citizens?

What’s more, these doubts are apparently starting to seep into the courts, even the U.S. Supreme Court, with its conservative majority.

That’s because the anti–death penalty lawyers have had a “profound effect” on the criminal justice system, says William Bowers, a death-penalty expert at Northeastern’s Center for Criminal Justice Policy Research. “For years, they’ve been fighting and struggling and appealing their cases, and bringing in evidence that shows violations of their clients’ rights.

“These lawyers have been throwing sand in the mechanism of the death penalty for so long that it’s finally starting to slow down the whole process,” Bowers says. “It’s only a matter of time before it finally comes to a halt.”


Changes in the debate

Amid concerns about capital punishment’s cruelty, the U.S. Supreme Court put the death penalty on hold in 1972. It allowed its use again starting in 1976. But only in the last few years has capital punishment again emerged as one of the nation’s most pressing and dramatic issues. Since the mid-1990s, headlines have proclaimed the release of 124 inmates—including 12 who had been sentenced to die—after DNA testing or detective work proved their innocence.

In January, Illinois governor George Ryan emptied his state’s death row, pardoning 4 inmates and commuting the sentences of 167 others to life in prison. Ryan, a Republican, said the system was too irreparably flawed to fix.

Benjamin Weinberg, L’90, was one of the lawyers who helped convince the governor to take his historic action. Northeastern senior research scientist Glenn Pierce also played a part, collaborating on a statistical analysis of death-penalty practices in Illinois (see below).

“Our capital system is haunted by the demon of error—error in determining guilt, and error in determining who among the guilty deserves to die,” Ryan concluded. “Because the Illinois death-penalty system is arbitrary and capricious—and therefore immoral—I no longer shall tinker with the machinery of death.”

During Texas governor George W. Bush’s campaign for the presidency in 2000, the media’s spotlight fell on his state’s virtual assembly line of death, raising questions about its fairness. Last year, the U.S. Supreme Court banned executions of the mentally retarded, calling the practice cruel and unusual punishment and citing a national consensus against it. Also in 2002, Maryland governor Parris Glendening ordered a halt to executions in his state because of alleged racial bias. The American Bar Association has called for a nationwide moratorium on the death penalty.

Much of this anti–death penalty momentum can be attributed to the rise of DNA testing as a powerful forensic tool in our criminal justice system. The science has proven with little doubt what many criminal-defense lawyers have contended for years: Innocent people are often put behind bars because of commonplace errors by police, prosecutors, and eyewitnesses.

“DNA exonerations have changed the entire debate on the death penalty,” says Aliza Kaplan, L’99, deputy director of the New York–based Innocence Project, a group at the forefront of the push to free wrongfully convicted inmates.

Kaplan aside, most of the Northeastern lawyers who fight the death penalty are not involved in the glamorous and arguably noble work of freeing the innocent. Instead, like Givelber, they represent clients who are most certainly guilty of heinous crimes, yet they spend long hours and many years fighting for these clients’ lives.

Members of Northeastern’s anti–capital punishment brigade include Janice Bergmann, L’88, a federal public defender in Fort Lauderdale, Florida; Ellen Berkowitz, L’96, a federal defender in Philadelphia; Phyllis Crocker, L’85, a law professor and death-penalty expert at the Cleveland-Marshall College of Law, in Cleveland, Ohio; and Brian Kammer and Terry Piazza, both L’96, who work at the anti–death penalty Georgia Resource Center, in Atlanta.


In the belly of the beast

Maurie Levin, L’92, is also part of this select group. Levin says that during most of her time at Northeastern she had no intention of doing death-penalty work. But for her final co-op, she worked for the Texas Resource Center, a nonprofit law office that represented death-row inmates. She liked the work so much, and was so impressed with the lawyers doing it, that she returned there after completing a postgraduate clerkship with a judge in her native Vermont.

The Texas Resource Center, along with similar operations in other states, closed down after the federal government withdrew funding in 1996 in an effort to limit death-row appeals and carry out death sentences more efficiently. Levin struck out on her own for a couple of years, then went to the Texas Defender Service, an anti–death penalty law office in Austin. In total, she spent more than eight years doing death-row appeals in Texas.

If you want to do death-penalty work, there’s no place like the Lone Star State. Texas leads the country in executions, with thirty-three in 2002 alone, nearly half of the executions in the entire country that year. More than 150 prisoners were put to death during the six years George W. Bush served as governor.

“There are just so many executions in Texas,” Levin says. “The sheer numbers are flat overwhelming. It’s an incessant daily grind.” The thirty-nine-year-old recently had a baby and moved to Charlottesville, Virginia, where she still works on death-penalty cases. But the pace of executions in Virginia is slower. “I just can’t work eighteen-hour days anymore,” Levin says.

Among her dozens of clients in Texas, Levin represented a man who came within five minutes of being executed before the U.S. Supreme Court granted him a temporary stay. Lesley Gosch, convicted of murdering a San Antonio bank president’s wife during a kidnapping for ransom, survived several close brushes with the death chamber. Despite Levin’s efforts, he was executed in 1998.

Another of Levin’s clients, Ricky McGinn, was convicted of the rape and ax murder of his twelve-year-old stepdaughter. His case drew national media attention during the 2000 presidential election when Governor Bush gave him a rare thirty-day reprieve to prove his innocence through DNA testing. The test confirmed McGinn’s guilt, however, and he, too, was put to death by lethal injection.

A third client, Troy Farris, was convicted of killing a sheriff’s deputy near Forth Worth in 1984 after the deputy interrupted a drug deal. Farris admitted to being at the scene but always denied he’d shot the deputy. Farris was executed in 1999.

Her clients, and her feelings about them, weren’t all the same, Levin says. Some clients were “quite crazy and mentally ill,” while others, such as Farris, she liked. “He was not someone you’d think of on death row,” she says. “He was a real easygoing, regular guy—a kind, intelligent human being.” She had questions about whether Farris was guilty. “Even as their lawyer, you sometimes never know,” she says.

But Levin insists that all her clients were themselves victims in some way. Asked how she could call such killers victims, Levin says, “If you look at people on death row, they are, without exception, from enormously deprived and impoverished backgrounds.” Many, because of their poverty, she says, are represented at trial by lawyers who are inexperienced or unprepared. “These people are ultimately and entirely screwed by the system. I believe they need advocacy, too.”

Jeff Pokorak, L’84, a Suffolk University law professor who also handled Texas death-row cases for years, agrees. “Most people on death row are seriously impaired,” he says. “Mentally impaired. Drug- and alcohol-involved. Some are insane. If they committed a sex crime, you can guarantee there was childhood abuse.

“The challenge of all death-penalty attorneys is to understand the nature of victimization,” Pokorak says. “There’s nothing inconsistent with caring about the plight of the victims and caring deeply about the people you represent.”


Questions of capacity

In addition to being pitiable, the anti–death penalty lawyers argue, many clients are less culpable by virtue of their mental capacity, either because they are mentally retarded or because they were juveniles when they committed their crimes.

Last year, the U.S. Supreme Court ruled that executing the mentally retarded was cruel and unusual punishment banned by the Eighth Amendment. In making their decision in Atkins v. Virginia, six of the court’s nine justices cited a growing national consensus against the practice after eighteen states outlawed executions of the mentally retarded.

Gretchen Engel, L’92, used the retroactive law in one of these states—North Carolina—to save two of her clients from lethal injection. A capital-appeals lawyer at the Center for Death Penalty Litigation, in Durham, Engel represented two men who got life sentences instead of death because she proved they were mentally retarded.

For a time, hopes were high that juveniles would be the next group to win the high court’s protection. Last October, following the Atkins decision, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, in a dissent related to a Kentucky case, said that the court should also prevent states from executing those who were sixteen or seventeen when they committed their crime (younger offenders are already protected from being put to death). Observers predicted that if more states were to join the seventeen that already limit the death penalty to adults, either Sandra Day O’Connor or Anthony Kennedy might be persuaded to vote with the other four justices, as they did in the Atkins case, to end the executions of juvenile offenders.

That scenario suffered a setback last month, when the court voted 5-4 to allow Oklahoma to proceed with the execution of a man who had murdered two people when he was seventeen.

But change could still trickle up from the states. “If four or five more states end the juvenile death penalty, there’s a very good chance the Supreme Court will take up the issue and end it nationally,” says Stephen Harper, L’84, a Miami public defender currently heading the Juvenile Death Penalty Initiative, a nationwide effort to abolish the death penalty for minors.

Harper worked with lawyers representing Napoleon Beazley, to try to save him from the Texas death chamber. When he was seventeen, Beazley shot and killed a man in front of his wife in an attempted carjacking. The victim, John Luttig, was the father of J. Michael Luttig, a conservative judge later appointed to the 4th U.S. Circuit Court of Appeals, in Richmond, Virginia.

Many believe that fact may have influenced Beazley’s fate, says Harper. Despite international protest, Beazley died by lethal injection in May 2002. “He was a remarkable kid,” Harper says. “He acknowledged his guilt and remorse. He tried to help other people in the prison system. He wrote a lot of poetry.”

As he was about to die, Beazley had these final words: “I’m not only saddened but disappointed that a system that is supposed to protect and uphold what is just and right can be so much like me when I made the same shameful mistake.”


Givelber’s crusade

Like Beazley, Billy Moore—Givelber’s client—was certainly guilty. He confessed nearly as soon as he was caught. But there were strong factors that weighed in favor of giving him a life sentence instead of death, Givelber says. For one, Moore never denied his involvement in the crime. For another, he was genuinely remorseful and worked hard to change while in prison.

Finally, the crime itself was not as horrible as many death-penalty murders. A drunken Moore broke into an elderly man’s house, intending to rob him of the large amount of cash he kept there. But the man surprised Moore and fired a shotgun at him. Moore returned fire with his own .38, killing the man with two bullet holes to the chest. “In the world of capital punishment, that’s a midlevel crime,” says Givelber.

Following the pattern of many capital cases, Moore’s case traveled up and down through state and federal courts during more than a decade of litigation. Givelber filed six habeas corpus petitions, each a major undertaking in itself. The case went twice to the 11th U.S. Circuit Court of Appeals and once to the U.S. Supreme Court.

Ultimately, the courts decided the issues Givelber raised on appeal should have been raised earlier in the case. The facts might weigh in Moore’s favor, but proper procedure had not been followed. As far as the courts were concerned, it was simply too late for Billy Moore.

The Georgia Board of Pardons and Paroles was Moore’s last hope. Letters asking that he not be executed came from ministers, from people who knew him when he was in the Army, from elected officials, even from relatives of the man he killed. Nobel Peace Prize–winner Mother Teresa called the parole board from India, asking that Moore’s life be spared.

As the board considered Moore’s case, the Atlanta Constitution published an editorial, which concluded:

To say that Billy Moore has been a model prisoner during his sixteen years on death row is to be guilty of extreme understatement. He was baptized soon after incarceration and has since helped convert others. He is thus not merely an example of the ability of the Georgia prison system to rehabilitate criminals but an agent of the rehabilitation of others. He has corresponded with his victim’s family and won their forgiveness and love. He has managed, at long distance, to be a good father to his son. In the eyes of many, he is a saintly figure. . . .

It is precisely because the legal system can fail to take account of personal situations that American jurisprudence has always allowed for clemency.

The execution of Billy Moore would make this world a poorer place. It would be a mark of shame for the people of Georgia. The Board of Pardons and Paroles must not let it happen.

In 1990, within hours of his scheduled execution, the Georgia parole board commuted Moore’s sentence to life in prison. Two years later, he was paroled after serving the minimum twenty-five years. Since then, Moore has become a minister in Georgia and talks about his death-row experiences on the lecture circuit.

Moore’s turnabout, Givelber says, is one of the best arguments against ending people’s lives. “I see a great deal right about convicting people who are guilty,” says the former prosecutor. “But how you punish them is a different matter.”

Only in rare cases are inmates with life sentences ever paroled, Givelber notes. But in this case, he says, “I guess the parole board was trying to show that people can be redeemed.”

Hudson Sangree, L’00, profiled venture capitalist Steve Walker in the May 2002 issue.