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Justice at 50 cents an hour

Defending death row case drove lawyer into bankruptcy

Last of five parts

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

The state paid Bob French about 50 cents an hour to try to save Judith Ann Neelley's life.

French said he worked thousands of hours preparing the defense for the 1983 capital murder trial. He argued that Neelley was a battered wife, that her husband had forced her to inject a 13-year-old girl with drain cleaner then shoot her in the back in DeKalb County. Neelley was indigent, so French was appointed to handle the case.
 
 
Special to the Post-Herald
Bob French worked thousands of hours preparing to defend Judith Ann Neelley in a 1983 capital murder trial. The state paid him between $500 and $1,000 for his work.
He doesn't remember exactly, but he said the state paid him between $500 and $1,000 for his work. By French's estimate, he and his Fort Payne office sank $340,000 into the case. It pushed him into bankruptcy.

"I don't want any more capital murder cases," he said.

The Neelley case is an extreme example of what death penalty lawyers faced for more than two decades in Alabama. The state wouldn't pay a lawyer more than $2,000, plus overhead expenses, for work on a capital case. When the legislature lifted those limits last October, both prosecutors and defense lawyers praised the move, saying it allowed for better defenses.

But almost everyone on Death Row was convicted under the old limits. They deserved a good defense, too, some observers say, and it seems they will not get it.

"The representation at trial level has been poor because funding has been poor," said Elisabeth Semel, who heads a death penalty representation project in California. "It puts an enormous amount of weight on the post-conviction level as a safety net."

The American Bar Association says a capital defense lawyer normally should work 500 hours or more on a case. Under the old Alabama standards for indigent defense, that meant a lawyer would be paid about $5 an hour. Top defense lawyers in the state demand $200 or more per hour
from clients who can afford to pay them.

French said the old payment levels left lawyers with two options: Put hundreds of hours into a case and spend their own money, or restrict themselves to using state money and put little time in a case.

That made for a system where defendants didn't always get good defenses, Semel said. But not all agree. While funding was low, defense was still adequate, said Tom Sorrells, executive director of the Alabama District Attorneys Association. If defense work was incompetent, appeals courts would order a new trial for the defendant, he said.

"I'm not saying there aren't people who don't get effective assistance," Sorrells said. "I'm saying it's not nearly as bad as people say it is. ... These cases are getting super scrutiny."

Sorells and others say that the problem was largely solved last October. Lawyers who represent indigent clients in capital cases now make $40 an hour for out-of-court work, $60 for in-court work, and they are still paid for overhead expenses (the amount differs for every case).

In the Neelley case, jurors convicted her, but recommended that she serve life in prison without parole. The judge rejected the recommendation, sentencing her to death. Former Gov. Fob James commuted her sentence in 1999.

Some face death without attorney

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

Everyone accused of a crime has a right to an attorney.

But in Alabama, that right disappears at some point during the appeals process, leaving about 40 of 185 death row inmates without representation.

Alabama is the only state that doesn't guarantee a lawyer or fund an office to help death row inmates find lawyers. And since the state pays so little to handle an appeal of a capital case, few attorneys vie for the privilege.
 
 
Bob Farley/Post-Herald
Wilson Myers is among the few Alabama attorneys willing to take on death row appeals, which pay very little. "The problem is you really don't get paid for doing it," Myers said.
These inmates had attorneys at their original trials and through the initial round of appeals, but most other death-penalty states provide an attorney automatically for other appeals.

States that don't, such as Georgia and Louisiana, fund offices that give legal aid to death row inmates.

Alabama death row inmates Thomas Arthur and Christopher Barbour had executions delayed this summer because courts were uncomfortable with lengthy periods they had gone without lawyers.

State officials contend the appeals system in Alabama is adequate. Critics call that contention absurd.

"The consensus is that Alabama is the worst," said Robin Maher, director of the American Bar Association's Death Representation Project.

The most any lawyer can make working on an appeal, from a drunken driving offense to capital murder, is $2,000, said Brenda Layton with the state comptroller's office. Appointed lawyers also receive office overhead expenses.

Since a lawyer could work hundreds of hours on a death penalty appeal, that means he or she could receive less per hour than a first-day cook at McDonald's. For years, the same $2,000 limitation on pay existed for defending capital cases at trial, but the state recently made trial payments much more generous.

"The problem (with appeals work) is you really don't get paid for doing it," said Wilson Myers, a Birmingham defense lawyer.

Myers is representing two death row inmates, partly because an Army pension provides him with the financial stability to do so.
 
 
Special to the Post-Herald
Court of Criminal Appeals, from left, Greg Shaw, Sue Bell Cobb, Presiding Judge H.W. "Bucky" McMillan, Pamela Willis Baschab and Kelli Wise. Some death row inmates go without an attorney after a first round of appeals is done.
Despite all of the problems, most inmates awaiting execution in Alabama do have lawyers, some of them prominent out-of-state attorneys.

"What we see in this office is that a death row inmate is represented by a resource center or by a large out-of-state firm that has more resources than we do," said Clay Crenshaw, who oversees capital cases in the state attorney general's office.

The main resource center is the Equal Justice Initiative in Montgomery, with a five-lawyer staff that is working on the appeals of about 100 of the 185 death row inmates in Alabama.

The Equal Justice Initiative is funded entirely by private donations and by money that the lawyers working there earn for speeches, teaching and consulting.

The group also has recruited lawyers for about 40 other cases, almost all of them from outside Alabama. But that still leaves about 40 inmates without representation.

"We have gotten to the point where we say we cannot represent any more people," said Bryan Stevenson, head of the group. "People are missing deadlines. More and more people are at risk for injustice."

Stevenson said that his group has helped at least 40 people escape death row, most to life sentences, after proving errors in the initial trial.

The allegation that inmates without lawyers are being cheated out of justice in Alabama is without merit, Crenshaw said. He noted that inmates receive a trial before jury and then receive an automatic appeal.

More appeals are often used as delay tactics, he said.

The case of Bo Cochran, however, at least makes plain that the second round of appeals can be the difference between life and death. Cochran, accused of killing a Homewood grocery store employee in 1976, was given a new trial during the second round of appeals because prosecutors were striking blacks from the jury for no other reason than race.

A subsequent jury set him free.

Law enforcement officials contend that the Cochran case illustrates the problems endless appeals can cause, such as the fading memories of witnesseses who helped convict the accused during the first trial.

Time can cheat electric chair

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

In the summer of 2001, cancer finally did what the state of Alabama never could to Clyde Cade. It took his life.

In 1978, Cade was convicted in the shooting death of Geneva County Sheriff L.D. Sizemore the year before and sent to Death Row. In 1981, his case was reversed and he was convicted again. He applied for appeal after appeal from there, and died in a prison bed at the age of 73.

Cade's long wait isn't unusual. Five other men have been on Death Row since the 1970s. Sixty-seven people have been on death row more than 10 years. Some say the lengthy wait from conviction to execution is the worst feature of Alabama's death penalty system.

"Even if everything is working smoothly, you're talking 10 years," said Clay Crenshaw, the assistant attorney general who heads the state's capital division. "And things don't run smoothly in the justice system."

After the verdict is rendered, the first court to review the case is the Alabama Criminal Court of Appeals, which looks at all testimony, all witness statements and all evidence. At the quickest, that court takes one year to review a case, Crenshaw said.

The second court is the Alabama Supreme Court. The third court is the U.S. Supreme Court, which the inmate can petition to review the case.

But if the U.S. Supreme Court upholds the sentence, that signals only the end of the first round of appeals.

The inmate can then begin a second level of appeals, with arguments often focusing on ineffectiveness of counsel at the trial, new exculpatory evidence or constitutional issues.

Then the inmate may go to the third tier of appeals, handled in federal courts. There, the inmate can argue again that the trial violated constitutional rights.

That makes 10 courts in all that an inmate can petition for help. If at any time, one of those courts decides that the inmate should have a new trial, and the inmate is re-convicted, the process starts over.

Opponents of the death penalty and others say Alabama needs all of those levels because it pays defense lawyers poorly.

But Crenshaw said even if there were problems at the trial level, there are so many appeals that every mistake would be caught.

In a 1998 article published by the Washington Legal Foundation, state Attorney General Bill Pryor wrote that a new trial for an old case could harm justice because evidence is lost and memories fade and that the weight of the penalty diminishes since it takes so long to finalize.

Crenshaw said other states handle appeals more quickly: Some combine various appeal issues or have fewer state courts to navigate.

Pryor recommended the removal of the state court of criminal appeals from the process. The Alabama Supreme Court does exactly what the criminal appeals court does, he argued.

'Where was your God?'

Speaking for the victims

David Sprott's mother-in-law, Irma Gray, was killed by Larry Eugene Hutherson during a robbery on June 24, 1992. Hutherson was sentenced to death and is in Holman Correctional Facility in Atmore. Birmingham Post-Herald reporter Taylor Bright asked Sprott about the case and the fairness of the death penalty in Alabama. Here is what he had to say.

"While she was out of the house shortly before dark, he broke in.

It took him three efforts. He tried to get in the bathroom window and was unsuccessful. He tried to get in the front door and couldn't make it. And he got in the window in the living room and cut himself, so he left blood on the furniture and blood in the carpet.

He was in the process of ransacking the house when Mrs. Gray came home from visiting a neighbor.

... She was able to walk in the house and surprised him in the act. He grabbed her. By his own statement, she ordered him out of the house and he wouldn't leave. When he made up his mind he wasn't going to leave, then she was going to leave and he prevented her departure.
 
 
Christine Jacobs/Post-Herald
David Sprott holds a photograph of his mother-in-law Irma Gray, who was raped and murdered in her own home. "You have 20 years between the crime and carrying out of the sentence," Sprott said. "When you have 20 years lapse, what does that prove to people?".
He had forcibly slung her down and he got one of the kitchen knives and he stabbed her. He nearly cut her throat in two, she was nearly decapitated. At some point in there, and we want to believe it was after she was dead, she was sexually assaulted - an act of sodomy, which is difficult for us to comprehend that a 20-year-old male could do something like this. Mrs. Gray was 89.

... The following day, two policemen came over, a lieutenant and the assistant investigator, and they came over to inform us of all they knew at this point. And that's when they told us about the sodomy.

And, of course, I have my wife (Fran) my daughter, and I don't know how many other female family members here in the room, and these guys come in and drop that on us. It was tough. Tough.

And the minister was here. Fran turned around and screamed at him, 'Ellis, where was your God?' He hasn't answered to this day.

... The appellate court upheld the conviction and the Supreme Court sent it back to retrial because the DNA instructions were not to their liking. I think the proper instructions were not given by the judge to the jury. Or something was said in front of the jury which should not have been within the jury's earshot.

... It took nearly a year where we were all back in the courtroom and the results were the same.

... Now, (on the appeal) these lawyers really come out with their shotguns. The first appellate hearing ... they run these things through a computer and say, 'what all can be done wrong in a trial?' and the computer prints them up 150 items and the lawyer goes with it. There are 150 things wrong with this trial and he argues this before the appellate court.

... We were all for the death penalty, even Mrs. Gray. I spent 20 years in the Marine Corps ... and in the Marine Corps, we did not tolerate thieves, but justice was swift. That was one of the things about it. You didn't dilly-dally with meting out punishment. It was done quickly and showed others what would happen.

And that's what we've lost here in the criminal justice here in the United States. You have 20 years between the crime and the carrying out of the sentence. When you have 20 years lapse, what does that prove to people? That's a terrible set of circumstances when you have the right people.

... We've been robbed of what would be her final years and we've been robbed of the good times.

... (On death row) probably 1 percent of all the murderers are there. We're talking about the worst of the murderers. The worst 1 percent of all the murders are sitting up there on death row.

We're not going to get into too much biblical stuff, but the Bible does allow for he who ever shall smite a man so that he dies shall certainly be put to death and that's right in that area of 'Thou shall not kill.'"

Proposals could bring fairness to system

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

Elizabeth Semel, the former director of the American Bar Association's Death Penalty Representation Project, says Alabama has the worst capital punishment system in the country.

"It's at the top of the list," she said. Semel said that inmates here don't get the protection they need, because the state doesn't provide enough money and resources for indigent defense.

Not everyone agrees. But among those that do, here are some of the remedies that are being discussed:
 
 

 
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