Death Penalty Lawyers, Washington Lawyer
By Sean Groom
Photographs by Patrice Gilbert

Trying the case of just one of the more than 3,500 prisoners currently on death row can take a toll on a lawyer's life.

Paul Khoury paced the floor in room 509 of the Holiday Inn in Greensville, Virginia, as he waited for the phone to ring. It was not a large room, and Khoury could only walk three or four steps in any one direction. Still, he continued to pace. His client, Joseph Payne, was scheduled to be strapped onto a gurney that night, November 7, 1996, and injected with a lethal three-part chemical. If the execution was carried out, Khoury believed that Payne would be put to death by the state of Virginia for a crime he did not commit.
     Shortly before 1 p.m. the phone rang. Khoury grabbed the receiver and his eyes teared when he was told the U.S. Supreme Court had declined to hear Payne’s case. Khoury wasn’t surprised by the decision, but that didn’t make the conversation any easier. Although Khoury felt there were some constitutional issues involved in the case, Payne didn’t want to raise them because of the implication of guilt.
     “I didn’t do this crime,” Payne insisted. “If people think I did it, arguing that I should get the death penalty for it doesn’t make a whole lot of sense.”
    Once the Supreme Court refused to grant certiorari, Payne had exhausted his appeals within the judicial system. His only outstanding hope was that Governor George Allen would grant clemency.
    Khoury wasn’t at all sure what the governor intended to do. Allen was a death penalty proponent, and he had never intervened to stop an execution. Since he took office, 10 inmates had been put to death.
     For nine years Khoury had argued Payne’s case in the appellate courts, and over and over again the courts had told him: “You’re claiming actual innocence? That’s not for the courts to decide; that’s for the governor in a clemency appeal.” Now Allen had eight hours in which he could intervene to stop the execution.
    The clemency process is a strange, political game. Success or failure is just as likely to come from shifting political winds beyond the lawyer’s control as it is from the strength of the lawyer’s argument. Khoury knew this. He crafted his petition to appeal to Allen’s pro–death penalty views.
    “My whole pitch to Governor Allen was different from what he was used to seeing because there was not an anti–death penalty feel to it,” says Khoury. “I didn’t want letters from anti–death penalty groups. What I said was: ‘Governor Allen, you favor the death penalty and you want it to be a strong part of the arsenal of the criminal justice system of Virginia. Well, there’s one problem with the death penalty that liberals raise periodically that has some merit: sometimes you can get through this whole process and an innocent guy may be convicted. If in the rare circumstance where somebody can slide through this whole process and really there are grave doubts as to whether or not he did it, you can say to the people, “I will be a fail-safe and ensure that that person doesn’t get executed,” you are strengthening the death penalty.’ ”
    Khoury wasn’t sure the argument would work. He had met with Allen’s staff for the first time three days earlier. They clearly had read the petition thoroughly but gave no indication they found it persuasive. In fact, they had chewed him out for tracking down and presenting his new evidence to the original jurors. Khoury had included in the petition affidavits from four jurors stating that if they had seen this evidence they would not have convicted Payne. The governor’s staff accused Khoury of jury tampering.
     “They were rabid about how wrong it was that we had talked to the jurors,” he says. “In fact, after we met with them, Governor Allen issued a press release saying that it was inappropriate. I left the meeting with the feeling that these people could very easily execute him. But I also got the sense that they were taking a good hard look at it, which is what we wanted.”
     A few minutes before 5 Khoury entered the prison to visit Payne. He talked with Khoury a bit, but there wasn’t much to do, as Payne was talking with a priest, so Khoury left the death house. An hour later word started to spread among the reporters outside the prison that Allen had stayed the execution. Khoury was asked to call the governor’s counsel. On hold for nearly 10 minutes, he waited to learn Payne’s fate—life without the possibility of parole. Payne’s life had been saved.
     Today more than 3,500 prisoners sit on death row in the United States. Both prosecutors and defense attorneys in death penalty cases claim that these are the most trying, emotionally draining cases they’ve worked on. The pressure can be enormous: The cases involve heinous crimes with victims both living and dead, and the state proposes taking the life of the accused. For some the process takes it toll and they move on to other types of cases, but for others it galvanizes their convictions and they commit themselves to capital cases. In either event, attorneys say these cases are the most rewarding they’ve done.

Different Callings
Attorneys get involved in capital cases for a variety of reasons. For William M. Sullivan Jr. it was his job: as an assistant U.S. attorney in the District of Columbia, he sought the death penalty against a southeast D.C. drug lord. Other attorneys volunteer to handle an inmate’s appeal. Like Khoury, Douglas G. Robinson, a partner at Skadden, Arps, Slate, Meagher & Flom LLP, is a litigator interested in pro bono work. (Both men oversee the pro bono programs at their respective firms.) Robinson’s practice focuses on the energy industry, but he has done a handful of death penalty cases including two currently under way. Kathleen A. “Kitty” Behan, a partner at Arnold & Porter, became interested in death penalty cases in law school and has taken up defense appeals around the country ever since.
     Because the District of Columbia doesn’t have the death penalty, most D.C. attorneys who have done defense work for clients in capita l cases handle the appeals process in other states. However, there have been three federal capital cases in the District over the last few years: the 1997 Starbucks murders, the murders by Tommy Edelin’s One-Five Crew, and the ongoing trial of Kevin Gray and Rodney Moore, a duo dubbed Murder Inc. by the press. In these cases court-appointed attorneys like Francis D. Carter, a solo practitioner in the District, represent the accused. Carter represented Carl Cooper in the Starbucks case, and one of his current clients is Gray.
     Paul F. Khoury’s introduction to representing a death row inmate was not unusual. A first-year associate at Wiley Rein & Fielding LLP in 1986, he was working in a government contracts practice but had an interest in criminal law. “I had actually thought about going to work for the Public Defender Service here in D.C., but had decided to go this route instead. However, I wanted to keep involved in criminal law.”
     Now a partner at Wiley Rein, Khoury saw an American Bar Association (ABA) advertisement looking for lawyers at large law firms to take on death row cases. “I was interested. I got another first-year associate here at the firm interested, and we talked to Bert Rein, who had been a Supreme Court clerk. He agreed, after we did a course with the ABA, that we could take the case.”
     Robinson was also drawn into death penalty work by a call for lawyers in the ABA Journal. It was at a point when “I decided that I really needed to do something in the pro bono area of a challenging nature,” he says. “I thought it would certainly be challenging. I had no background in the area, but the death penalty was something I was interested in as an intellectual matter. I made some inquiries, responded to the call, and the next thing I knew I had a case in Texas.”
     Death penalty cases are difficult to try, time-consuming, and emotionally charged for both defense attorneys and prosecutors. It’s no wonder, therefore, that not many lawyers are willing to take them on.
     Robinson has been involved with efforts to recruit lawyers to represent death penalty clients. “It gets harder and harder as the years go on because getting repeat business is really hard. Due to the time commitment, there are a lot of people in this town who have done a case and feel like they can’t make the commitment to do another. To do just a habeas case in the death penalty area and to do it right is a commitment of a thousand hours, perhaps more than a thousand hours. That’s a lot of commitment. That’s six months of a lawyer’s time.”
     Khoury agrees. He spent nine years on Payne’s case. At the end he said he’d never do another one. Today he’s not so sure. “I’m sure I would be willing to be a supervisor where people could come to me but where I wouldn’t necessarily be taking the laboring part. I spent thousands of hours on this case—thousands. And it was immensely rewarding, but for nine years immensely frustrating. I mean we had one success in this case, and it was in the ninth year in the bottom of the ninth inning.”
     Asked how he handled the emotional strain of those last few days, Khoury says, “When you are that involved in what’s going on and there is so much going on, you have to focus. You get into a zone where you’re just dealing with what you can handle. The real emotion didn’t come through for me until after this was over.”
     The emotion hit him the day after Payne left the death house. “I was driving back [to Washington], talking to reporters on the phone. Just past Richmond, on Friday night, I called my voice mail to check in and I had 51 messages from people congratulating me, and I just started crying. Bawling. I was driving by myself and it was the first time I’d been alone, because I’ve had reporters and everybody else with me. All of sudden it just swept over me. What I’d been up to and how much emotion had been bottled up for so long.
     “But at the same time, it’s a wonderful experience to know that I accomplished something for this guy. Very few people get the opportunity to be in that situation. I just can’t tell you how grateful I am for the opportunity to have done that.”
     Doug Robinson, who has handled appeals for several men on death row, has had the same feeling. Describing the emotional reward, he says, “I once saw a TV show where they were profiling a trust and estates lawyer in Omaha, Nebraska. He had been appointed to represent a guy on death row, and they were showing him during the last few hours before the client was to be executed. He was running around filing papers in several courts and clemency petitions with the governor and so on. He was literally running down hallways when somebody stuck a microphone in his face and asked the trite question, ‘How do you feel?’ His answer was, ‘For the first time in my life I feel like a lawyer.’ That’s sort of stuck with me. I’ve had those moments myself.”
     One of those moments came at the end of his first case. The ABA’s death penalty project had assigned Robinson the appeal case of Federico Martinez-Macias in Texas. Macias was convicted and sentenced to death for the killing of an elderly couple in El Paso whom he had worked for as a handyman and gardener. He was convicted largely on the testimony of an alleged accomplice who had admittedly perjured himself in grand jury testimony.
     According to Robinson, “Macias was represented at trial by a local lawyer in El Paso who is actually reputed to be a very good trial lawyer, but he had previously been a prosecutor. He tried the case the same way he used to try cases as a prosecutor, which is to say that he relied on the police reports and essentially did no investigation of his own.”
     One reason the defense did so little investigation was that legislation capped payments to state-appointed investigators in Texas at $500, amounting to only 10 hours of investigation.
     After the jury returned a guilty verdict for Macias, the defense attorney, on the trial record, asked the judge for an extra 45 minutes at lunch to prepare for the sentencing phase of the trial because he hadn’t yet done any preparation for it. Robinson seemed dumbfounded. “This is a capital case and literally his entire preparation was an hour and 45 minutes!”
     Robinson successfully argued ineffective assistance of counsel before the Fifth Circuit, which remanded the case to the state courts and gave the state 180 days either to retry Macias or to release him. During the hearing before the federal magistrate, Robinson was able to demonstrate that the accomplice’s story was entirely fabricated. The alleged accomplice claimed that he met Macias while cashing a check, and Robinson and his team proved that no check ever existed to be cashed. They also produced alibi witnesses placing Macias miles away from the crime scene and corroborating eyewitnesses who stated that Macias was not one of the men they saw fleeing the crime scene. The judge ruled only on the ineffective-assistance-of-counsel claim. But on return to the state courts, Robinson’s argument that a new indictment was required because the original one had been obtained on perjured testimony was successful.
     Presented with the evidence, a new grand jury refused to indict Macias and he was released from prison after spending nine years on death row. In his office Robinson keeps several pictures of Macias and his legal team celebrating the day Macias was released.
     Not all cases have the made-for-Hollywood outcome of the Macias case. Often an attorney represents a client with little or no chance of getting off and is just trying to keep the client off death row. After Francis Carter considered the government’s case accusing Carl Cooper of executing three Starbucks employees in Georgetown during a failed 1997 robbery, his goal became preventing Cooper from dying by lethal injection.
     Often in a death penalty case “you have to redefine success,” says Carter. “It’s difficult because as an attorney you want to do what’s best for your client, but as an individual you want to [gain] acquittal or dismissal.”
     With the government’s extensive resources investigating and preparing the case, the evidence against the defendant can seem overwhelming, especially to a court-appointed attorney with limited resources. Carter and his co-counsel, Steven R. Kiersh, wanted Cooper to pursue a plea bargain, but before they attempted to convince the prosecutor and the judge that Cooper deserved to live, they had to convince Cooper that a life in jail was worth living.
     “It took us a while to demonstrate to Mr. Cooper that there were things he could do with his life in a federal penitentiary,” says Carter. “We were trying to help him find meaning for his life. At first he felt he’d be locked up and rot away.”
     It took several daylong visits to Northern Neck Regional Jail in Warsaw, Virginia, for Carter and Kiersh to win Cooper’s confidence. They were eventually able to convince Cooper that behind bars he could develop a relationship with his young son that would aid Cooper’s wife in raising the child.
     In 1999, on the day of jury selection, Cooper admitted to the Starbucks killings in exchange for a life sentence without parole. In the plea agreement, Carter requested that Cooper serve his sentence in a federal penitentiary close to Washington. Cooper is now incarcerated in Lewisburg, Pennsylvania, less than 200 miles away.

Reinvestigation Raises the Bar
Robinson and Khoury both had “actual innocence” cases for their first case. Actual innocence is a term for defendants who have consistently and repeatedly proclaimed their innocence since they were charged. These clients are appealing their conviction rather than narrow trial issues or their sentence. Although these cases probably don’t involve the majority of the people on death row, they certainly command the bulk of media attention and place the greatest emotional strain on the attorneys.
     An actual innocence case requires significant reinvestigation by the appeal team—an expensive proposition. For the inmate it is prohibitively expensive, entailing thousands of hours of the lead lawyers’ time plus that of assisting associates, paralegals, investigators, expert witnesses, and, if petitioning for clemency, perhaps a media consultant. Payne hit the jackpot when the ABA assigned his case to the young lawyers at Wiley Rein. Khoury estimates that Payne’s appeal would have cost more than $1.5 million.
      After the initial direct appeal process, Khoury settled in for the long haul and began the state habeas corpus process arguing ineffective assistance of counsel. Almost every habeas argument in death penalty cases alleges ineffective assistance of counsel. Because death penalty states like Virginia, Texas, Georgia, and Florida that frequently pursue capital charges do not have a learned counsel requirement, it is not unusual for this argument to have merit. In cases with court-appointed counsel, like the Macias case that Robinson took up, the defense attorney may be hobbled by limited funding for the defense and inexperience with capital cases, but gross incompetence also abounds.
     Robinson relates horror stories of ineffective counsel from his experience in Texas. In a case Robinson is currently working on, he describes how the prosecution was allowed to read a heavily edited version of his client’s confession: “In this case the defendant gave a partial confession. He confessed he was present at the time the murder occurred and, in part, was involved in trying to rob the guy. But in his confession he said that there was another fellow who actually stabbed the victim in the neck with a knife and shot him twice in the head with a pistol. The prosecution was allowed at the trial to read my client’s statement to the jury in a redacted form, and they redacted all of the words that indicated that it was somebody else doing these things.
     “For example, this guy had said, ‘I saw him [the accomplice] reach over the back seat and stab the taxi driver twice in the neck.’ It was read to the jury as ‘I…reach over the back seat and stab the taxi driver twice in the neck.’ And there were several other instances like that, talking about the shooting, for example.”
     There are also the well-publicized cases of defense attorneys sleeping through the testimony of the prosecution’s star witness. That these convictions are not often overturned shows how difficult it is to argue successfully ineffective assistance of counsel, so attorneys develop as many avenues as possible to throw the conviction into doubt.
     Reinvestigation poses a stumbling block in these cases because a significant passage of time dulls witnesses’ memories, and it’s not in the interest of many people, who the lawyer needs to interview, to provide more information about the crime. Some lawyers are better at soliciting information than others. When Kitty Behan was reinvestigating her client’s case in Buchanan County, Virginia, she says, it was important to immerse herself in the community. It was helpful that she had grown up in Georgia and was sensitive to the culture and the sensibilities of a small southern coal-mining town.
     Khoury was also able to draw on earlier experiences not common to a big-city government contracts lawyer. In 1981, while he was a college student, Khoury spent a semester working as a paid investigator for the D.C. Public Defender Service. Investigating murders and rapes in southeast Washington and spending nights loitering on street corners hoping to talk with a drug dealer were not skills that he learned in the classrooms of Saint Albans School and Dartmouth, but they served him well now.
     “I just was fascinated by how willing people are to talk to you, tell you their story, and tell you what happened,” he says. “It really opened up a vista to me as to what was going on in our city, and actually I ended up meeting a lot of people that I really enjoyed interacting with. It sparked my interest in becoming a lawyer and continuing to pursue criminal law in one way or another.”
     In Payne’s case Khoury began the reinvestigation by reading the trial transcript and interviewing witnesses and potential witnesses to the murder. The crime occurred in 1985 when someone chained and padlocked David Dunford’s cell door before tossing a can of paint thinner over him followed by a lighted book of matches. Dunford was engulfed in flames and died nine days later without naming his attacker. Dunford was not the first Virginia prisoner attacked in this manner, and prison officials wanted to send a message to the inmates that they wouldn’t tolerate it. Accordingly, prison officials demanded that the prosecutor charge with a capital crime whoever was indicted. They wanted to make an example of someone, and the prosecution settled on Payne.
     The government’s primary witness against Payne, Robert Smith, a man known as “Dirty Smitty,” was also a suspect in the case. Khoury drove out to a western Virginia jail and interviewed Smith himself. During the interview Smith recanted his testimony. Khoury says that one of the things Smith confessed to during their conversation was “I lied when I said your client did it. He was in the shower with me when it occurred.” Smith continued with a tale that would make any defense attorney sit up and take notice.
     The picture that emerged from the interview was that Smith had gotten about 15 years of undisclosed time cuts in exchange for his testimony, that he claimed he had been coerced into testifying, and that he had written to the prosecutor suggesting that he be allowed to coach the other witnesses. After Payne received a death sentence, Smith claimed he told the prosecutor that his story wasn’t true and that he wanted to recant; however, a visit by state investigators convinced him not to recant.
     Khoury was excited by these revelations, so on the spot and by hand he wrote out an affidavit. Smith made and initialed some corrections and then signed the document.
     Khoury wasn’t ready just to take him at his word, though. “[Smith] was described by the investigators who relied on him as a ‘manipulative con man.’ Nobody trusted this guy. This was a guy who, even among inmates, stood out for his lack of credibility.” So he investigated further.
     Many of the claims that Smith made were documented by Khoury and his team. They verified that Smith’s sentence was indeed reduced beyond the time cuts acknowledged at the trial, and they turned up letters Smith wrote to the prosecutor suggesting that he be allowed to coach other witnesses and that he wished to recant his testimony. Finally, there were records of a visit by state investigators after the letter about recanting and a subsequent written statement by Smith to the prosecutor claiming that he never intended to recant.
     Khoury then found three witnesses who claimed they saw Smith commit the crime, another who saw him just before and just after the explosion, and several others who said Smith had admitted to the crime and also to perjury at the trial when he said he would “testify against my grandmother for the deal I’m getting.”
    With this collection of evidence, Khoury began the state habeas corpus process by returning to the trial judge and arguing that the conviction was based on perjured testimony, that it may well have been knowing use of perjured testimony with the use of undisclosed inducements, and that there were ineffective-assistance-of-counsel issues. Things didn’t go very well for Khoury and Payne at this stage. Arguing before the same judge who heard the original trial, Khoury didn’t find a receptive audience.
     Describing the hearing, Khoury says, “Here I am, some young, punk K Street lawyer walking into the Powhatan County Circuit Court and saying, ‘Judge, this prosecutor that you’ve been working with for years bought himself some perjury, and the defense counsel who took this case as a favor to you was ineffective. By the way, Judge, you made some unconstitutional decisions as well. And finally, let me show you all the evidence that your buddy didn’t present and could have presented that demonstrates the innocence of my client.’ ”
     With a few exceptions, the judge allowed Khoury to present his evidence to the court. The judge, however, expressed doubts about the testimony of the witnesses Khoury called, asking how he could be expected to believe the statements of inmates. At the hearing Smith, true to character, recanted the affidavit that he had sworn to with Khoury and the judge wouldn’t allow the affidavit to be entered as evidence. In response to the supporting testimony that Payne was not the assailant and that cast doubt on Smith’s credibility during the original trial, the judge replied, “The jury believed Smith.”
     For the judge, the operative issue was the fact that the jury convicted Payne on the basis of Smith’s testimony. This, in Khoury’s mind, was to miss the point entirely.
     “Our whole point was the jury never saw the evidence we’re presenting,” says Khoury. “The whole point of our proceeding [was] to present [the judge] evidence that the jury never saw and should have.”
The judge went on to issue a finding that was particularly damaging to Payne’s case. “The judge put us in the worst position possible,” says Khoury, “because he actually considered and allowed most of the evidence and then made a credibility finding that’s entitled to great deference when you look at it upon appeal.”
     When Khoury then argued in federal court, the issue wasn’t a matter of guilt or innocence; the federal courts only examined whether Payne’s trial had any constitutional violations. When the opinion came down from the Fourth Circuit Court of Appeals, the statement of fact appeared to indicate that Khoury’s arguments had carried the day.
     Khoury says, “If you were just to read the facts, you would say, ‘Wow, they get it. We are about to win.’ They said Joe Payne’s conviction was based solely on the testimony of a ‘known and appalling provocateur,’ and they go on to describe the facts much the way I would describe them. However, the finding went on to say, ‘But the judge made some findings and we have to defer to him.’ ”
     That pretty much closed the door on the appeals process for Payne.

Clemency as Fail-Safe?
Over time the appeals process in death penalty cases has been considerably narrowed and is now largely governed by procedure rather than merits. In Herrera v. Collins (1993) the Supreme Court ruled that innocence wasn’t necessarily grounds for appeal if there were no constitutional issues in the defendant’s trial. The Supreme Court held, “Federal habeas courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution.” Essentially the Court ruled that a wrongful conviction does not violate a defendant’s constitutional rights—as long as the defendant was accorded due process.
     For those cases involving claims of innocence, the courts say petitioners have to look outside the justice system. The majority opinion in Herrera stated, “History shows that executive clemency is the traditional ‘fail-safe’ remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion.”
     The decision rose in part from what the courts saw as an overzealous use of the appeals process in meritless cases to delay and postpone executions. States responded to this practice by limiting the time period after conviction in which inmates could appeal their conviction based on the introduction of new evidence. For example, both Texas and Virginia limit to 30 days or less the time after conviction during which claims of innocence based on new evidence may be raised. After this period new evidence cannot be the basis of an appeal before the court. These state rules and the Supreme Court’s ruling are designed to ensure that the trial, appeal, and imposition of the sentence proceed in an orderly manner that completes the entire process without undue delay and provides a sense of finality.
     When lawyers and their clients petition for clemency, they can leave the procedural rules of the justice system behind. A governor’s clemency decision is made in the court of public opinion where attorneys can once again focus on the merits of their case and the public’s sentiment about the case.
     Strategies used to prepare a clemency petition vary depending on the client and nature of the case, but it is the tensest part of the lawyer’s job. Khoury’s approach worked, but far more often the governor is unmoved by the petition.
     Kitty Behan made the trip from Washington to the governor’s office in Richmond to present a clemency petition on behalf of a client, Roger Coleman, whom she firmly believed to be innocent. Coleman seemed to have a great deal of support for his claim of innocence. The day before the execution was scheduled Governor Douglas Wilder had received 6,146 messages related to the scheduled execution and 95 percent of them favored clemency, but the governor wasn’t swayed.
     Behan spent the first year out of law school contesting Freedom of Information Act denials by government agencies for the American Civil Liberties Union. The following summer, in 1990, she moved on to join Arnold & Porter where, a few weeks after beginning work, she was invited to join an ongoing pro bono case at the firm.
     Roger Coleman had been convicted of the 1981 rape and murder of his sister-in-law in the southwestern Virginia town of Grundy. Nearly five years before Behan joined the Arnold & Porter team working on Coleman’s appeal, the lawyers had filed a petition in the district court claiming ineffective assistance of counsel. The hearing judge ruled for the state, and the plaintiffs had 30 days to file a notice of appeal with the court of appeals. The visiting hearing judge had written his finding order on September 4, 1986, but had mailed it to the Grundy courthouse, where it was received and entered by the clerk of the court on September 9. This discrepancy between the date on the order and the date the order was entered would become pivotal in the fate of Coleman and dramatically affect Behan’s life.
     Under Virginia law counsel has 30 days to file the notice of appeal. Arnold & Porter’s notice of appeal was recorded as entered by the clerk on October 7—31 days after the ruling if one considers September 4 to be the operative date. The courts took this view when the Fourth Circuit ruled that Coleman had lost the right to federal habeas corpus hearing because his lawyers had missed the deadline to file a state habeas appeal. The Supreme Court upheld the decision, writing that “it is a case about federalism” and the federal courts must respect the states’ rules and procedures.
     Effectively blocked from the state and federal habeas process, Behan and her team focused on reinvestigating the crime some nine years after it occurred. Coleman had been convicted on circumstantial evidence, and Behan hoped that they could either find the actual killer or find enough new evidence to persuade the courts or the governor that Coleman was innocent. Convinced that Coleman did not commit the crime, she devoted herself to the investigation. She also worked to generate as much publicity for the case as possible. These efforts got Coleman airtime on CNN’s Larry King Live and a sympathetic cover story in Time magazine, but failed to prevent his execution.
     Coleman’s case took a heavy toll on Behan. For several years she wouldn’t take actual innocence cases. “These cases are very time-consuming and emotionally and physically draining,” she says, “because of the tremendous resources and work required to reinvestigate and the fact that the situation has changed from trying to save a man’s life to trying to save an innocent man’s life.”
     During this period she became interested in cases in which the defendant’s mental capacity was an issue, and took a case questioning the execution of paranoid schizophrenic prisoner with mild retardation. She has, however, taken up actual innocence cases again and is currently representing a client in Philadelphia, Jimmy Dennis, who maintains his innocence. At this point she generally works on two death penalty cases, one that involves reinvestigation and one for which she files amicus briefs.
     Behan sought this case for its jurisdiction. “Usually my cases are in the state courts within the Fourth Circuit or the Eleventh Circuit. One of the reasons I took a case in Pennsylvania is that I wanted to move to a court where we had a fighting chance.”
     Dennis was convicted of the daylight murder of a teenage girl at a Philadelphia subway station while stealing a pair of earrings. Behan and her team have raised three major issues on appeal: Brady issues, which involve the state’s failure to turn over exculpatory evidence; ineffective assistance of counsel; and prosecutorial misconduct. The judge has granted open discovery in the case because the homicide file has been lost, the victim’s clothes have been lost, and Dennis’s clothes, seized under a search warrant, have disappeared as well.
     Behan spent a lot of time talking and visiting with Dennis before she decided to take the case. “These types of cases require a tremendous amount of the firm’s resources, and I try to be responsible with them,” she says. “You try and pick the cases where you can be successful and make a difference with all the money and time that is invested.” Her goal now is to exonerate her client.
     She says in these types of cases it can be important to talk to the original jurors to find out what they latched on to during the trial in order to make their decision. “Often you read the transcript of the trial and it seems pretty dry, and the evidence appears to be such that any reasonable person would have a reasonable doubt and be unable to convict, yet they surprise you with a conviction.”
     This can be the result of community rage or a prosecutor with excellent rhetorical skills. By all accounts the prosecutor in the Dennis case fits into the latter category.
     Behan is ardently opposed to the death penalty for several reasons, among which is that the system can never be absolutely certain that innocent people are not executed. She says death penalty cases tend to be more controversial, so the arguments and rhetoric take place at a higher volume and cause the process to become more arbitrary. She adds that because the country is not a color- or income-blind society, bias enters into the process. Behan believes states shouldn’t engage in the act of taking human life because it is an invitation to the abuse of power.
     Doug Robinson opposes the death penalty for much the same reasons, but adds that it has the effect of diminishing human life. “It seems to me like all the death penalty satisfies is a very visceral need on the part of politicians and their constituents who seek retribution for what I will readily agree are horrendous, heinous violent crimes.”
     Francis Carter, a former D.C. public defender, agrees. “The death penalty doesn’t seem to be effective or useful. It only achieves revenge.”

Prosecutor’s View
William Sullivan, the prosecutor, suggests that retribution is the one role the death penalty serves well. “Traditionally, in the criminal justice system, the punishment serves four purposes: restraint…, deterrence…, rehabilitation…, and retribution and vengeance.” Sullivan argues that the death penalty is not needed for restraint, fails at deterrence, and does not address rehabilitation. Vengeance, he says, “sounds sort of inhumane or primitive, but having spent time with a lot of victims’ families, on a certain level I can understand an individual’s need for vengeance.
     “In many ways, victims’ families believe that vengeance or retribution validates the life of the victim. If the killer is alive, not living well, but living behind bars, fed, clothed, and able to watch TV, read, and better himself physically and intellectually, that minimizes the victim by way of where the victim is as juxtaposed to where the killer is.”
     Sullivan says he can see both sides of the arguments for and against the death penalty, but adds, “I believe until Congress and the will of the people promote a vote otherwise, I’m obligated to enforce the law . . . and I can’t put my own private interests ahead of the will of the people.”
     Prosecutors arguing a capital case find themselves facing many of the same issues as those sitting at the opposing table. Sullivan has tried 17 murder trials in the District, including the first capital case to go to trial here in nearly 50 years. This type of work can take as heavy a toll as trying to stave off an impending execution.
     “It’s very stressful,” says Sullivan. “You really feel that you’re carrying the weight of the world. I believe it’s the heaviest burden a lawyer can ever carry.
     “I don’t mean to be bold, blustery, or arrogant about it, but when you’re seeking to ensure that the individual on trial is convicted because he’s killed, your thought is, if you fail here he may kill again. And you’re going to have to live with that, so you work very hard.”
     Doing multiple cases of this nature, says Sullivan, can wear one down. “You see a lot and you come in contact with the worst side of human nature, and often the defenses that are propounded are desperate and many times, in my view, deceitful because the stakes are so high.”
     The investigation of the death penalty case Sullivan helped argue against Tommy Edelin began in 1997. In a number of criminal investigations and a drug conspiracy case Edelin’s name kept popping up. Staff at the U.S. attorney’s office began investigating and trying to put together the information they were accumulating. From a host of suspects the investigation team slowly built a picture of a large, ongoing drug distribution network that had operated for 15 years. One distributor who had been swept up off the streets and found to have ties to Edelin was put back in place by the FBI with 11 kilos of narcotics to facilitate a reversal. The agents were able to record a series of meetings between the distributor and Edelin in which Edelin outlined his organization and made arrangements to purchase the drugs. In August 1999, after nearly two and a half years of investigation, Tommy Edelin was indicted and the charges included capital murder.
     Edelin was charged with a RICO (Racketeering Influenced and Corrupt Organizations Act) narcotics conspiracy. “We charged continuing criminal enterprise,” says Sullivan, “because it was clear to us that these murders were committed in the course of furtherance of the narcotics conspiracy with a view toward enhancing the profit and continuing the enterprise, and murders came along with it, particularly the murders of witnesses and innocents.”
     Sullivan was responsible for arguing the part of the trial relating to the murders of Maurice Doleman and Rodney and Velonte Smith. The Smiths were teenagers Edelin ordered killed in a case of mistaken identity. Because of the car Rodney Smith was driving, believed by Edelin to be that of a rival, Edelin ordered the occupants shot. Instead of a drug dealer, the driver was Rodney Smith, home from college, with his 14-year-old sister and two of her friends as passengers on their way to a Christmas party.
     “I know Wilma Lewis [U.S. attorney for the District of Columbia during the Clinton administration] thought long and hard about the death penalty, particularly with regard to the unique composition of D.C. and the opposition to the death penalty. But I think the motivating factor for her was [the killings of] Rodney and Velonte Smith,” says Sullivan.
     In federal capital cases like the one that Sullivan worked on, the decision to seek the death penalty is out of the trial attorney’s hands. If the U.S. attorney indicts for capital murder, a death penalty review committee at the Department of Justice examines the case whether or not the attorney has decided to pursue the death penalty at trial. Despite the review by the committee, in federal cases the attorney general maintains final say over the decision to seek the death penalty at trial.
     “Ultimately the attorney general decides,” says Sullivan, “and that decision is based on uniformity throughout the country. The attorney general doesn’t want to be in the position where a lot of death penalty cases are coming out of Florida and Texas and no death penalty cases are coming out of Connecticut or the Southern District of New York.”
     There are ways, however, for the U.S. attorney to ensure that the death penalty is not sought. “The key is how you indict the case,” says Sullivan. “If you are a U.S. attorney who’s got a political agenda that negates, or opposes, the death penalty, one way that you could avoid the entire process is not to indict death penalty counts. You can indict murder counts but not those counts that carry the death penalty, and you never put yourself in front of the review committee. It’s very rare that the capital case committee at [the Department of Justice] is going to go back and look at your indictment with scrutiny and say you should have indicted these particular counts.”
     Sullivan emphasizes that the rules and procedures governing federal death penalty cases differ in important ways from state capital cases. In addition to case review by the Department of Justice committee, defendants are provided with learned counsel and greater resources for their defense.
     “In the federal system,” says Sullivan, “the death-penalty-eligible defendants are appointed learned counsel—individuals with death penalty experience. These are usually very, very able, well-known practitioners. Tommy Edelin had three lawyers, each paid by the taxpayer at $150 an hour for a trial that lasted seven months and preparation that lasted far more…. There are far more safeguards in the federal system, and those safeguards are important.”
     In the Edelin case, Sullivan argued the death penalty phase of the trial. After the defendant has been convicted of the crime, a separate penalty phase occurs to determine the sentence. In this phase the prosecution will argue that certain aggravating factors exist that warrant the death penalty, and the defense presents mitigating evidence that would indicate the party should be spared a death sentence.
     Jurors can be difficult to convince that death is the appropriate punishment, says Sullivan. “Juries are going to be compelled to render that type of sanction [lethal injection] if the evidence is very strong. I think jurors need a little bit more to get over the hurdle of a death penalty in terms of finding guilt on those counts. That’s pretty much the nature of individuals. If they are going to be asked to pursue the most severe punishment, they are going to want the strongest case.”
     Sullivan’s argument focused primarily on the evidence presented at trial, and he tried to convince the jury that it was a small step from the conviction to the sentence, since they had already found the evidence convincing. The operative aggravating factors for this case were that Edelin paid for the murder and that it was the result of substantial planning.
     Sullivan’s opening statement presented an overview of his argument: “Ladies and gentlemen, you’ve already made a determination beyond a reasonable doubt that he was responsible for this. Now I simply ask you to find that this was a function of his payment [there was evidence in the case that there was payment] and that he planned it [and there was evidence in the case that he planned it]. You didn’t have to make those findings in the guilt phase. All you had to do was make the finding that he ordered it and was responsible for it—you found that beyond a reasonable doubt. It’s a very small step to take now to also find that he procured it by payment and that he spent time planning and thinking about it.”
     After each side presented its evidence and the jury deliberated, the jury recommended a sentence of life in prison without parole.
     “I thought the jury evaluated the evidence fairly and carefully,” says Sullivan, “and they made a number of determinations. I think their primary focus was that Tommy had a very disadvantaged background and childhood, that he had some degree of rehabilitative potential, and that he was instrumental in the development of his younger sisters, which showed some human emotion and care, but he just became an utterly ruthless businessman.”
     Sullivan came to Washington 10 years ago because he wanted to be a litigator, and he decided that the U.S. attorney’s office was the place to do that. “It simply affords you more opportunities to learn how to become a trial lawyer,” he says. “I preferred being a prosecutor because you have the burden of proof. I thought that was more of a challenge. I mean, you had to persuade 12 people beyond a reasonable doubt. A simple majority wouldn’t do.”
     Since the Edelin trial, Sullivan has left the U.S. attorney’s office to build a practice at Coudert Brothers. He says the emotional toll of prosecuting murders factored into his decision. “In addition to the 12 or 13 murders I did in the homicide unit, I did another four in the Edelin case. It takes its toll, but you always want to believe that in some small way you made a contribution.
     “If I had just spent my time as a civil lawyer when I retire, I might have been able to say I never did anything but save people a bunch of money or obtain money for other people. However, I have letters that I’ve put on the walls of my office from victims’ families that mean so much to me, that I’ll always have and cherish. I’ll always feel that I did something for the community by taking the most serious crime that could be committed and making sure that justice is served the best we can under the law and the system we have.”