Experts: Too few 'learned counsel' to handle death penalty cases

~ "A lot of these cases have real problems with proficiency of counsel," said a New York civil lawyer.

ST. LOUIS -- One day in April 1995, attorney Joanne Descher learned she had been appointed to represent a Missouri prisoner in his federal appeals of first-degree murder convictions that carried a death sentence.

Descher, practicing securities law at the time, didn't know anything about the highly specialized body of law and procedure known as habeas corpus, the crux of her client Marlin Gray's federal appeal. Few lawyers know this odd hybrid of civil and criminal law, which is complex, time-consuming, and not at all lucrative.

"It's an expertise that's hard to come by," said James Woodward, federal court clerk for the Eastern District in St. Louis, which assigned Descher the case.

In fact, few lawyers volunteer for defense in death penalty trials or appeals because they are economically and emotionally demanding and not financially rewarding, said Sean O'Brien, one such defender since 1983.

O'Brien heads the not-for-profit Public Interest Litigation Clinic and is a visiting professor at the University of Missouri-Kansas City law school.

O'Brien said it's a "horrible idea" for civil law practitioners to be thrown into habeas corpus, where federal courts examine state court proceedings for constitutional problems. He said it is a complex specialty fraught with procedural land mines that trip up even skilled lawyers and may cause a client to lose a case. And they are up against seasoned specialists in the attorney general's office.

"There are a thousand ways to accidentally lose a case," he said.

Legal experts in Missouri and around the United States say a 1996 federal law left prisoners with even fewer avenues for habeas corpus relief as Congress responded to calls to speed up the death penalty process.

The Anti-Terrorism and Effective Death Penalty Act of 1996 severely restricted the legal basis for arguing that lower court proceedings should be reviewed for constitutional errors.

It shortened deadlines and limited what federal courts could consider for a second look at a case.

"People think there's all these legal loopholes in getting a conviction set aside, but the reality is it is government that has all the loopholes and procedural barriers," said Richard Sindel of St. Louis, one of a small pool of Missouri attorneys considered to be the caliber of "learned counsel" required in a 1988 law for federal death penalty cases.

"You rarely are able to present the issues of the case. The law sets up all these barriers."

The Effective Death Penalty Act of 1996 also permits states to speed the flow of death penalty cases by opting into an expedited litigation schedule -- but only if the states improved the level of defense at capital trials. O'Brien said Missouri has tried to become an "opt-in" state but so far hasn't produced the needed reforms.

"A lot of these cases have real problems with proficiency of counsel. Arguments are not made, leads are not followed through, objections are left out," said David Elbaum, a New York civil lawyer appealing the murder conviction and death sentence of Reginald Clemons, Marlin Gray's co-defendant in the 1991 murder of two young women in St. Louis.

Elbaum and two other attorneys, including a former federal prosecutor, were recruited for Clemons' pro bono defense by the NAACP Legal Defense and Educational Fund.

Ronald Tabak, pro bono coordinator for the Skadden firm of New York, said civil lawyers should do habeas corpus petitions in capital cases "only if" they are extensively trained and mentored by experts in criminal and capital law.

Descher got Marlin Gray's case because she had agreed to take some pro bono cases as a condition of being admitted to the federal court bar here.

Descher said she dove into the Gray case, found mentors and speed-learned the law. She also leaned on co-counsel Kent Gipson in Kansas City, who had experience in federal habeas corpus petitions.

"I realized the magnitude of the appointment, that it was a life and death situation," she said. "I had to try the best I could."

After a 10-year haul, the appeals were unsuccessful, and Gray was executed on Oct. 26.

On Monday, spokesman Scott Holste said the Missouri Attorney General's office was within weeks of asking the Missouri Supreme Court to set an execution date for Clemons. His attorneys said they will continue his appeals.

Descher, who now practices civil, commercial and family law, isn't sure she would accept another death penalty case.

"Professionally it was challenging, but it changed me as a person," she said.

"I got a firsthand look at what the process is of trying to rectify wrongs that occurred at trial and found it so very, very difficult to do, so difficult to achieve justice."

She said so many points were barred from consideration that she found herself less ambivalent and more opposed to the death penalty by the time it was all over.

"I have no confidence in how the death penalty is administered," she said. "There are too many mistakes made, too much room for error."