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Copyright (c) 2009 Curators of the University of Missouri
UMKC Law Review
Summer, 2009
UMKC LAW REVIEW
77 UMKC L. Rev. 831
LENGTH: 10686 words
Symposium: Death Penalty Stories: Introduction: Death Penalty Stories: Lessons in Life-Saving Narratives
NAME: Sean D. O'Brien*
BIO:
* Sean D. O'Brien is an associate professor at the University of Missouri-Kansas City School of Law. He has
been defending people facing the death penalty since 1983. Professor O'Brien previously served as the Executive
Director of the Public Interest Litigation Clinic, formerly known as the Missouri Capital Punishment Resource
Center, in Kansas City, Missouri, which represents indigent persons facing the death penalty. He has received
numerous awards for his work on behalf of indigent prisoners, including the Kansas City Metropolitan Bar Association Lifetime Achievement Award in 2005.
LEXISNEXIS SUMMARY:
... Mike's story of Ronald Straight is a good place to begin our symposium, for it illustrates the reason that Professor
Mello and other capital defense lawyers "stopped doing legal claims and started doing claims that tell a true life story.
... Haney argues that "more accurate information about the role of adverse social histories and immediate social contextual influences 'would lead to more informed public debate over the utility of capital punishment.'" ... Haney examines
the prison homicide of corrections officer Don Carter by inmate Carl Burling. ... Haney points out, these "nuanced,
psychologically-sophisticated mitigating counter-narratives" are "more valid," as evidenced by the fact that even in
highly publicized aggravated cases such as Burling's, they move death-qualified jurors to reject the death penalty. ...
As is often the case in capital litigation, Edgar's defense attorney did very little investigation. ... The theme that investigation matters is echoed in the story by Professors John Blume and Sheri Lynn Johnson, Back to a Future: Reversing
Keith Simpson's Death Sentence and Making Peace With the Victim's Family Through Post- Conviction Investigation.
... He asked Professor Meyer what stories came to mind upon reading a synopsis of the Walbey post-conviction narrative; his e-mail response was that the story reminded him of "the twisted version of Dickens' "Great Expectations." ...
Referring to the delicate, painstaking investigation into mitigation, Marc observes, "Capital defense teams are archeologists," digging into the client's remote past, ferreting out clues, gently brushing away the dirt to get a better view, without spoiling the faint images that provide clues to untold trauma.
TEXT:
[*831]
Oh, what'll you do now, my blue-eyed son?
Oh, what'll you do now, my darling young one?
I'm a-goin' back out 'fore the rain starts a-fallin',
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I'll walk to the depths of the deepest black forest,
Where the people are many and their hands are all empty,
Where the pellets of poison are flooding their waters,
Where the home in the valley meets the damp dirty prison,
Where the executioner's face is always well hidden,
Where hunger is ugly, where souls are forgotten,
Where black is the color, where none is the number,
And I'll tell it and think it and speak it and breathe it,
And reflect it from the mountain so all souls can see it,
Then I'll stand on the ocean until I start sinkin',
And I'll know my song well before I start singin' . . . . n1
This UMKC Law Review Symposium focuses on the role of the narrative in the defense of death penalty cases. It is
only natural that a generation reared on Bob Dylan's music would turn to the power of story-telling to appeal to the better side of human nature in the face of the tragic violence and injustice that set capital cases apart from all others.
"[T]elling a powerful and coherent tale of injustice has always been a critical component for a defense attorney seeking
to win a capital case." n2 Defending a death penalty case creates the unique challenge of discovering and presenting a
compelling, life-saving narrative that evokes mercy and understanding sufficient to spare the life of a person accused or
convicted of a heinous killing. Working against skilled and well-funded government lawyers, capital defense litigators
have learned to move decision-makers toward mercy by uncovering and telling stories that that reveal the client's fundamental human dignity, the touchstone of the Eighth Amendment. n3
The authors we have invited to participate in this symposium are seasoned capital litigators, lawyers, experts and
mitigation specialists. They have saved their clients' lives by discovering and communicating the narrative of the clients'
hopes, struggles, and unrealized dreams, creating a vivid picture of such abstract [*832] concepts as decency and
human dignity. The UMKC Law Review is extremely grateful to those who took the time from their demanding schedules to share some of their stories with us. For a person carrying an active caseload of capital clients, time is a valuable
commodity. This point was made abundantly clear by the response we received from Millard Farmer, who has traveled
throughout the South defending capital cases since the 1970s. He explained his refusal to dwell on cases he has put behind him. With his permission, here is his response:
Hi Sean,
Like most people who are accused of something, I must begin by attempting to talk my way out; as lawyers, we call
these communications confessions. Here goes. I am a closet geek and my addiction has worsened since the time that a
lawyer who I was accusing of serious misconduct in representing a client "deleted" his computer hard drive and handed
it to us with a smile. "There, I have no files and my hard drive where I stored my files went bad." Within twenty four
hours we had recreated his entire hard drive. Not only did our client get complete relief, but the judge was so outraged
that he informed the lawyer if he did not surrender his license that he would refer the matter for criminal prosecution.
Eventually, the lawyer took a nolo and lost his license.
So, we now assemble our computers and order parts for other lawyers' computers on a regular basis when their regular tech is not available on the weekend in the middle of a trial.
This leads to the point of this confession. I received 2,400 e-mails this morning, all but around a 100 were trapped
in my junk mail folder. I receive this volume of e-mails because I am on every type of techie list. As I started to go
through my Viagra and other type of spam offers that slipped through the filter before deleting them, I notice O'Brien,
Sean and I laughed to myself and mentally processed that I once knew a real person named Sean O'Brien; this caused
me to look at the subject line. Yes, I do remember Sean.
The UMKC Law Review project is interesting. My problem is that there are two of us left from the old Team Defense Project - everyone else has good jobs - we just have enjoyable jobs. We literally work seven days during most
weeks and have a Robin Hood practice where we do work for the rich to get to do our work. We make groceries every
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week and are far happier than anyone that I know who has a legal education, but we don't have much time to write about
the wonderful experiences that have been our life since 1976. We are still writing in the present tense.
The legal education aspect of the story that our experiences teaches is that our first task is to place the potential listeners of our stories in a position to understand that it is in their best interest to accept and act upon the morals that we
attempt to tell with our stories. We call this process Conflictioneering. Go into our website and take a look at how we
attempt to explain this-you'll think that you are back at one of our meetings.
http://www.goextranet.net/Seminars/Conflictineering/IntroductionAll.htm
Thanks for the wonderful opportunity. I hope you understand the reason that we do not have a rear view mirror on
our vehicle.
Millard
[*833]
Only Millard Farmer would tell a story to explain why he can't take the time to tell us a story. Mr. Farmer's response is certainly well understood, which makes us all the more grateful to the capital litigators who took the time from
their oppressive schedules to share their stories with us. We are honored to collect and present those stories.
Our symposium begins with Professor Michael Mello, a scholar and capital defense attorney who, we are sad to
say, passed away on November 23, 2008, at the age of fifty-one. He was diagnosed with emphysema shortly after he
agreed to submit an article for this symposium, but he persisted in his commitment even after his condition worsened.
He e-mailed me his final instructions about his article on November 23, 2008, and passed away a few hours later. And
that speaks volumes about Professor Mello as a lawyer and a person.
A member of the Vermont Law School faculty, Michael Mello was nationally known for his work on behalf of
death row inmates, which includes such high-profile cases as Theodore Kaczynski, Joseph Robert "Crazy Joe" Spaziano, Theodore Bundy, and Paul Hill. n4 He also published many scholarly and popular books and articles on capital
punishment and other topics. n5 In the foreward to Mike's book, Death Work: Defending the Condemned, n6 Mark Olive provides a glimpse of the type of lawyer that Professor Mello was:
Persons on death row are exactly like you. For example, they like some lawyers and dislike (most) others. Mike's
clients loved Mike, like one loves a sibling or . . . a friend. They loved Mike because Mike loved them, and showed it:
he listened, explained, laughed, cried, and, most important, he showed up, without being hasty. He acted the way lawyers are supposed to act. n7
Professor Mello's own career as a capital defense attorney spanned the early post-Furman v. Georgia n8 era of capital litigation. The Court's decision that the arbitrary infliction of capital punishment violates the Eighth Amendment
spawned legal issues about what procedures are necessary to the constitutional imposition of the death penalty.
Like the rest of the capital defense community, Professor Mello's early work focused on those legal issues created
by each state's rush to resume [*834] executions. Professor Mello defended clients from within the Florida Office of
the Capital Collateral Representative ("CCR") at its inception in the mid-1980s, and has borne witness to the arbitrariness inherent in the Florida death machine. He hated capital punishment, and was morally and professionally conflicted
about his role in the process. Florida funded CCR because it realized that executions would not go forward unless death
row inmates were represented by counsel; it was unseemly to kill a prisoner who was unrepresented by counsel. In
What Came Before We Killed Him: Deconstructing Execution #58, n9 Professor Mello retells the legal battles preceding Florida's electrocution of Ronald Straight. He cogently demonstrates a common occurrence in Florida and every
other capital punishment jurisdiction: the execution of a prisoner with a callous disregard for whether his sentence was
imposed in violation of the Constitution.
Professor Mello highlights one of the key frustrations of death penalty litigation: that for whatever reason-ideology,
political pressure, or carelessness- courts will commonly misstate the law, the facts or the historical record to avoid
granting a remedy for the violation of a death row inmate's constitutional rights. Ronald Straight's jury was barred
from considering any mitigating evidence that did not fit within a narrow statutory list of mitigating factors, a practice
that was later found unconstitutional in Lockett v. Ohio, n10 and explicitly applied to Florida's system in Hitchcock v.
Dugger. n11 To avoid granting relief in several capital cases, including Straight's, "the [Florida Supreme Court] justices
fibbed" about having adopted Lockett's rule prohibiting restriction of mitigation evidence. n12 Professor Mello's client
would live or die by that lie. In fact, eighteen Florida prisoners were executed before the Supreme Court in Hitchcock
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saw through the Florida courts' deception. As Professor Mello wryly points out, "If you had been tried pre-1978, but
you had been executed prior to Hitchcock, you stayed dead, even though your death sentence was as illegal as Jim
Hitchcock's had been." n13 Like everyone who has done death work for any length of time, Professor Mello buried a lot
of clients who had perfectly valid legal claims.
The bitter lesson of Ronald Straight and many others like him is that legal issues alone-no matter how valid-are insufficient to withstand the "hydraulic pressure" n14 of public opinion that drives executions. Capital defense lawyers
know that more important than legal issues are "the stories of life-stories about treachery, ambition, betrayal, greed,
sacrifice, commitment, devotion, love-and in these stories we find a reason, not a fancy argument but a reason, for life."
n15 Mike's story of Ronald Straight is a good place to begin our symposium, for it illustrates the reason that Professor
Mello and other capital defense lawyers [*835] "stopped doing legal claims and started doing claims that tell a true
life story. If you find an injustice in a case, you force sight into the blind eyes and sound into the deaf ears of clerks and
judges." n16 To paraphrase Mark Olive, this symposium, like Professor Mello's writing and his career, "is full of life."
n17
The use of sound narrative technique, both in the investigation and presentation of the defense case, is now a standard of practice for capital defense work. In Wiggins v. Smith, trial lawyers were found constitutionally ineffective for
failing to investigate and present a "powerful mitigating narrative" in Wiggins' defense. n18 The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases n19 likewise recognizes that "it is critically important to construct a persuasive narrative in support of the case for life, rather than to
simply present a catalog of seemingly unrelated mitigating factors." n20 The capital litigation experts who have contributed to this symposium provide significant insight into what it means to discover and present a truly persuasive
life-saving narrative.
Michael Burt is well into his third decade of capital trial work. We asked him to contribute to this symposium because of his wealth of experience and a track record of success, to which his colleagues attribute his mastery of uncovering and presenting his client's story. n21 Mr. Burt's contribution, The Importance of Storytelling at All Stages of a
Capital Case, n22 observes that the reliance on storytelling flows from the fact that all capital prosecutions begin with a
compelling narrative of a tragic loss caused by a terrible crime. Although we are accustomed to believe that the burden
of proof beyond a reasonable doubt rests on the prosecution, in reality the powerful emotions evoked by the prosecution's graphic presentation of a violent crime imposes a heavy burden on the defendant to justify why his or her life
should be spared. Capital defense attorneys have long understood that "if the sentencer returns a guilty verdict, [*836]
defense counsel should presume that death will be the outcome unless he [or she] presents a vigorous affirmative case
for life." n23
The heavy burden on defense counsel to prove why the client should be spared in spite of a heinous crime, or
sometimes even a series of heinous crimes, explains why the defense narratives described in this symposium place such
a high premium on investigation, collateral sources, and painstaking documentation. Mr. Burt makes a vitally important
point about the use of narrative technique: "If the jury ever comes to believe that a lawyer is trying to tell a good yarn,
then the effort is a total failure." n24 The objective is sincerity, not manipulation. Mr. Burt therefore makes the essential
point that integrity is crucial to the defense narrative. "'[L]itigation in death penalty cases . . . is . . . quite different from
character development in film or the novel. It is factual and truthful storytelling, meticulously built upon a record.'" n25
Mr. Burt emphasizes the important role of the mitigation specialist on the capital defense team. Investigation into
the client's life history requires skilled, culturally competent, face-to-face, one-on-one interviews with family and witnesses that facilitate "'recreating illustrative scenes'" in the client's life. n26 He makes the critical point that absent this
investigation, the defense will be unable to empower the jury to achieve its own awareness that "what happens to us as
children helps to shape our thoughts, feelings, and actions as adults." n27
Mr. Burt provides concrete examples of how the compelling narrative of his client's life is woven into the presentation at all stages of the case, not just in the penalty phase of the trial. The mitigation narrative must be presented in
dealings with the prosecutor, selecting and instructing the jury, and the guilt/innocence stage of trial. He gives vivid
examples from a case defended by Kevin McNally, in which the narrative of Alan Quinone's life is vividly demonstrated throughout the record. It is not enough to tell a jury that the defendant was raised in abject poverty, and that he is
mentally impaired. McNally showed the jury documents generated by a social worker visit: in a household with five
children, all the food on hand was some rice and a can of peas. n28 He presented testimony from his client's siblings
that Alan hid pieces of bread for them to eat when the food ran out-revealing both Alan'schildhood poverty and his true
character. Mr. Burt's point: an effective narrative defense tells the story of the client's humanity, stripped of legalese.
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Professor Craig Haney makes the point that a well-investigated defense narrative is crucial because it must be sufficiently persuasive to dislodge the [*837] dominant narrative that is already in place long before the defense enters
the courtroom. A co-author of the Stanford Prison Experiment, Dr. Haney has long been concerned about the dehumanizing effects of capital punishment and incarceration on both inmates and correctional officers. n29 To provide context
for his discussion of the role of the narrative in the defense of life, Dr. Haney discusses a story that many would consider the poster-case for the death penalty: a prisoner serving a life sentence who kills a guard. With so many prisoners
serving life sentences, don't we need the death penalty to give prisoners a disincentive to kill officers? In addressing this
question, Dr. Haney sees a role for the narrative not only in the defense of the individual on trial, but also on the broader
issue of American crime policy, driven by the "tough on crime" rhetoric of party politics in America.
Dr. Haney introduces the concept of the "crime master narrative," the "official story," loaded with inflammatory
rhetoric ("unprovoked, malicious, savage") that public officials feed to the media that sets the stage for a capital trial
that will end in the death penalty. n30 The resulting news stories, which focus on the "individual badness" of the perpetrator and the goodness of the innocent victim, simplistically pit "good" against "evil" and reinforce the misguided notion that society's crime problem is best solved by ferreting out and harshly punishing deviant individuals. n31 Dr.
Haney argues that "more accurate information about the role of adverse social histories and immediate social contextual
influences 'would lead to more informed public debate over the utility of capital punishment.'" n32
To illustrate his point, Dr. Haney examines the prison homicide of corrections officer Don Carter by inmate Carl
Burling. n33 The pretrial publicity painted a one-dimensional picture of Burling that focused only on his criminal record
and the fact that he stabbed Carter fourteen times. On the other hand, the media coverage portrayed Carter as the consummate professional, respected by his peers, loved by his family, and intrinsically a good and decent person. Thus,
even before Burling went to trial, the story that was already established in the minds of prospective jurors was a simplistic fable of good versus evil. Without a complete context, the picture was horribly inaccurate, and the defense faced
a heavy burden of changing the picture.
Dr. Haney illustrates the importance of context to the narrative. Burling's story was set in an understaffed maximum-security prison filled with twice as many prisoners as it was designed to hold. Carter was the only officer present
in a unit of 140 prisoners. Further, racial tensions were high; two-thirds of the prisoners were African-American, while
over eighty percent of the correctional [*838] officers were white. Investigation into the prison itself revealed Ku
Klux Klan activity among the guards, including "tattoos of swastikas and KKK" and the common and open use of racial
epithets. n34 Black inmates such as Burling were often harassed. Given the imbalance of power between guards and
inmates, this was relatively easy; a prisoner could be accused of bogus disciplinary charges, or his cell could be randomly and disruptively searched-"tossed," in prisoner parlance. Based on events prior to his death, it appears that
Carter was such an officer.
An investigation into Burling's background revealed that he was a far more complex individual than his criminal
record suggested, and certainly was not the one- dimensional "evil" character the media depicted. A life history investigation provided a broader, mitigating context and explanation for Burling's life choices and circumstances. He grew up
in poverty with a series of abusive stepfather-figures, leading to a pattern of truancy and alcohol and drug abuse as early
as age eleven. Burling was still a teenager when he attempted to hang himself with his bed linens while confined in a
psychiatric hospital. Released to the streets, he became involved in drugs and drug trafficking. Like many young people
in his circumstances, he developed an intimidating persona to survive on the streets and in prison.
After being sent to prison for his drug crimes, Burling matured. While some prisoners join gangs to fulfill "the human need to connect to others in the face of adversity," n35 Burling formed a long-term emotional bond with fellow
prisoner Johnny Service, who helped him adapt to and cope with the day-to-day harshness of prison life. Burling improved, became an excellent worker, and began to find himself. He and Service were described as a "quiet and comforting" influence in the housing unit. Everyone, even guards, was aware they were a couple. Their "house" in the wing
of the prison designated E-Block was a model cell for cleanliness and decoration.
Carter was appointed housing unit supervisor of E-Block, and became confrontational and punitive, singling out
Burling and Service as the target of his abuse. He began enforcing pedantic regulations his predecessor had not. He began "tossing" cells, looking for trivial things over which to harass inmates and provoke confrontations. He used racial
slurs and generally tried to "make life hell for the Black inmates." n36 He antagonized Service and Burling for homosexuality, selectively enforcing contraband rules against them and ridiculing them, calling their neatly decorated cell "a
little whorehouse." n37 Burling filed grievances, complaining about Carter's mistreatment and asking prison adminis-
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trators to put a stop to it. He sought the counsel and assistance of other correctional officers, which only caused the harassment to intensify.
On the day of the killing, Carter was going to move Burling and Service to separate cells, which he knew would
upset them, and he continued to taunt [*839] Burling as they boxed up their belongings in compliance with the order.
When Burling asked Carter for some boxes, Carter replied, "We don't get boxes for niggers." n38 Burling went out into
the yard, dug up his knife, and fatally stabbed Carter in the back. Burling waited quietly in his cell to be apprehended.
He never denied responsibility, but said he had repeatedly asked for help.
Based on a narrative that was far more complete than the pretrial media version of the crime, Burling was sentenced
to life. The jury unanimously found two mitigating circumstances, that "the Riverside Prison administration permitted
and fostered an environment in which racism flourished," and that the same administration did not properly respond to
Carl Burling's complaints "so as to minimize or eliminate the anger and frustrations which caused him to commit the
offense." n39 The media reported the life sentence as a miscarriage of justice. The complete story was simply too complex, and they had become too conditioned to the crime master narrative.
Dr. Haney exposes the cost to society of over-reliance on the incomplete crime master narrative. In response to
Burling's individual crime, the State locked down its prisons, reduced the availability of rehabilitative programs, and
spent vast sums of money on body armor and other protective gear for prison guards. Based on the actual, more complete narrative, reasonable and well-informed decision-makers might have chosen other effective means to avoid future
crime and violence, including meaningful grievance procedures, staff training and cultural awareness. An even more
effective long-term response would be the funding of programs to help children avoid the tragic circumstances that led
to Burling's encounter with Carter in the first place.
Dr. Haney's contribution demonstrates not only that it is incumbent upon defense counsel to change the picture of
the case, but how that can be done. The case for death always focuses on the capital crime, and the prior criminal record
of the accused-those isolated instances in the client's life when his behavior diverged from societal norms. More often
than not, this is the story that dominates the media coverage and the sound bites that law enforcement officials feed the
public, without any mitigating or explanatory context. On rare occasions that context is provided, it is incomplete and
misleading. Defense counsel's challenge is to expand the time frame of the client's story to include those aspects of his
life that narrowed his choices and frustrated his hopes and dreams to the point that he lashed out with violence. As Dr.
Haney points out, these "nuanced, psychologically-sophisticated mitigating counter-narratives" are "more valid," as
evidenced by the fact that even in highly publicized aggravated cases such as Burling's, they move death-qualified jurors to reject the death penalty. n40
Russell Stetler is a mitigation specialist, a type of investigator with the highly particularized knowledge and skills
necessary to investigate culpability issues unique to death penalty cases. n41 Mr. Stetler has a thorough understanding
[*840] of the statutory and constitutional principles that govern capital punishment, as all mitigation specialists should.
n42 In The Unknown Story of a Motherless Child, n43 Mr. Stetler tells the story of Edgar H., a male prostitute who
confessed to and was convicted of killing four men in Los Angeles and San Francisco. As is often the case in capital
litigation, Edgar's defense attorney did very little investigation. They presented the testimony of a psychologist, Edgar,
and Edgar's girlfriend, Rowena, to testify about the defendant's traumatic childhood and its likely impact on his psychological make-up. Because the ultimate source of the information was Edgar himself, the defense case was easily discredited by the prosecutor's argument that Edgar was lying about his traumatic childhood.
After Edgar was put on death row, an exhaustive life history investigation enabled the defense to tell his story in
vivid terms that leave no doubt of its truthfulness, or of its mitigating value. Mr. Stetler describes the painstaking process of reconstructing Edgar's life history through the documentary record and witness interviews. Edgar's birth certificate and his mother's death certificate revealed that she died of a ruptured uterus while giving birth to him. Investigating
preceding generations, n44 the post-conviction team discovered that Edgar had a family history of mental illness on his
father's side, which included multiple relatives involuntarily committed to mental institutions. Edgar's maternal lineage
had its problems as well. His maternal uncle, Donald, "killed his common-law wife, remained with her naked corpse for
at least a week, and then took his own life." n45 The new investigation uncovered Donald's suicide note, which provided a glimpse of the emotional turmoil of a mentally disturbed man as he attempted to provide some rationale for the
murder-suicide. These events provided valuable insight into the family into which Edgar was born, and the risk factors
for mental illness that were beyond his control.
Edgar's bleak childhood was consistent with his lineage. Court records established that his father lost custody of
him because of neglect and "extreme cruelty." n46 He lived for a time with his grandparents, sharing a two- bedroom
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house without heating or plumbing with over a dozen people. Beginning at age six, he was sexually molested by older
cousins, and at age twelve he was sent to live with his natural father, who ran an "after hours club" from his house. In
that environment, Edgar was exposed to prostitution, orgies and was sexually exploited by adult men and women. It is
not surprising that before he turned [*841] twenty, Edgar fell into heroin addiction and male prostitution. Although
Edgar himself had accurately told snippets of his life story to various people during his trials, as a result of the investigation a new picture emerged, which included information of which Edgar himself was totally unaware. "[T]he new
picture was thoroughly and impeccably supported with hard documentary evidence and triangulated corroboration of all
critical facts. The district court found Edgar was entitled to penalty phase relief '[a]s a matter of law and justice.'" n47
The prosecution agreed to a negotiated disposition for a life sentence.
There is a critical relationship between a thorough investigation and the quality of the defense narrative. Mr.
Stetler's story demonstrates that a thorough life history is crucial to reliable decision-making in death penalty cases, and
that a qualified mitigation specialist is a vital member of any capital defense team. n48
In a capital case, why or how a crime occurred is often as important as the question of who did it. The theme that
investigation matters is echoed in the story by Professors John Blume and Sheri Lynn Johnson, Back to a Future: Reversing Keith Simpson's Death Sentence and Making Peace With the Victim's Family Through Post- Conviction Investigation. n49 At Simpson's jury trial, the prosecution had portrayed him as a racist black defendant who killed convenience store clerk Joe Harrison execution style. Blume and Johnson understood that as long as that disturbing snapshot of
Simpson's crime remained unchallenged, there was little hope of avoiding execution.
A thorough investigation dramatically changed the prosecution's picture. Aggressively using open-records laws to
access the prosecution and police files and consulting independent experts to properly interpret physical evidence at the
scene of the crime, Simpson's defense team disproved the prosecution's story that Joe Harrison was murdered execution-style as he lay on the floor. Professors Blume and Johnson explain in detail how a competent investigation and interpretation of the physical evidence established that Harrison was killed in a struggle over the gun-a far less
death-worthy scenario. Further, their investigation showed that a racist comment attributed to Simpson was very likely
the product of the imagination of a government witness who was eager to gain his own freedom by cooperating with the
prosecution.
Although Simpson's trial attorney had retained a psychologist, the evaluation was conducted without the benefit of
an adequate life history investigation. At the time of trial, no one knew that Simpson was born to a drug-addicted mother who supported herself through prostitution, and there was no [*842] evidence of the deprived environment in
which Simpson was raised from birth. Again, an investigation conducted according to ABA standards substantially altered the picture of Keith Simpson, exposing his humanity. He was not a cold-blooded racist killer, but a severely traumatized and brain-damaged young man with no history of violence. Aided by the sensitivity of the defense team, even
Joe Harrison's family was moved by a complete picture of Keith Simpson and his crime. The authors emphasize two
important lessons from the Simpson story. First, competent post- conviction representation requires a "truly comprehensive investigation, one that covers the range of what might matter." n50 Equally important, "To be persuasive,
post-conviction mitigation stories often need both a retelling of the client's life, and a retelling of the crime itself. . . .
'[L]ife stories' need to be both consistent and complete." n51
Mark Olive is a capital post-conviction lawyer of national reputation and unquestionable standing in the death penalty defense community. In Narrative Works, n52 he has looked at the relationship between the narrative approach to
mitigation and the Supreme Court's most recent decisions on the performance of counsel, Williams v. Taylor, n53 Wiggins v. Smith n54 and Rompilla v. Beard. n55 Those cases emphasize the importance of defense counsel's diligent efforts to uncover and present in narrative fashion the mitigating aspects of the client's background and character. Curious
as to whether the Supreme Court's analysis was having an impact on judicial decision-making in the South, Mr. Olive
found three cases suggesting that it is. n56 In all three of the cases he examined, there was some mitigating evidence
presented at the trial of three highly aggravated murders, yet post-conviction counsel conducted a more thorough investigation that filled significant voids left by the trial lawyer's presentation. Because of the new compelling narrative,
habeas corpus relief was granted in the Fourth, Fifth and Eleventh Circuits-America's Death Belt, where such rulings
are relatively rare.
Where the sentencing presentation on behalf of the defendant at trial was incomplete or inaccurate, and a more
compelling mitigation case is presented on the defendant's behalf in post-conviction, the government virtually always
makes the same argument: the defendant was not prejudiced by the failure to present additional "details" of his life story
because the aggravating evidence would demand the death penalty in any event, and because the new mitigating evi-
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dence is "merely cumulative" to the evidence presented at trial. n57 In each case, Mr. Olive sets out verbatim the state's
brief describing the mitigation case presented at trial; in post-conviction, the state has an incentive to make defense
counsel's performance look as good as possible. Clearly, these are cases where trial [*843] defense counsel worked
hard enough to uncover and present evidence of the client's life history, including mental problems, childhood abuse
and neglect. Trial counsel also presented expert mental health testimony on the client's behalf. Nevertheless, their performance was deemed deficient in contrast with the narrative presented by the post-conviction team.
George Walbey, Jr., was convicted of the murder of Marionette Beyah, who had been his foster mother, which occurred when Walbey was eighteen years old. Walbey broke into Beyah's house beat her to death with a fire extinguisher; she was portrayed as an unpaid volunteer foster mother who took Walbey in and, although she returned him to state
care, she remained supportive of him. Although trial counsel told the jury about Walbey's dysfunctional family, physical
abuse and neglect and the chronology of foster home placements, the story was incomplete. The "details" uncovered by
the post-conviction team painted a more stark picture of Walbey's childhood, revealing that he was given drugs and alcohol prior to age three, forced to eat garbage, and his father gave him frequent beatings, including one with a doubled-over belt that lasted forty-five minutes and broke the buckle. n58
Even more significant, trial counsel had failed to tell the story of Walbey's relationship with the victim. Several
months after he had been placed with her, she returned him to the youth center and said she was going on vacation, and
never returned for him. Her rejection was emotionally devastating to Walbey. Shelter employees testified that they had
never seen abandonment so abrupt and hurtful to a child, and that Walbey was depressed, tearful, and blamed himself
for being left alone. n59 Mental health experts who testified at trial changed their opinions, believing that the story of
Walbey's abandonment was relevant to issues of mental health and future dangerousness.
The Fifth Circuit Court of Appeals-never quick to grant relief to condemned prisoners-ruled that "even when some
mitigating evidence is presented at trial, prejudice is still possible if that evidence is substantially incomplete. . . . The
mitigating evidence presented in this case is substantially incomplete." n60 The Magistrate explained, "the effectiveness
of mitigating evidence is in the 'details' and when only a general overview is set forth, without providing those 'details,'
the attorney does not give the jury a proper vehicle for giving effect to the mitigating evidence." n61 In Walbey's case,
the new evidence transformed the story from that of "a thankless orphan biting the hand that fed him" to "a twice rejected foster child who suffered 'pretty cruel thing[s]' at the hands of his supposed benefactor, the victim." n62
Mr. Olive consulted our colleague, Professor Philip N. Meyer, who has published extensively on the subject of
narrative in the law. n63 He asked Professor [*844] Meyer what stories came to mind upon reading a synopsis of the
Walbey post-conviction narrative; his e-mail response was that the story reminded him of "the twisted version of Dickens' "Great Expectations." n64
Mr. Olive provides a similar analysis of post-conviction storytelling in the Fourth and Eleventh Circuits. In each
case, the post-conviction team conducted a thorough investigation and presented a mitigating narrative that transformed
the court's view of the case. He describes in detail the contrasting trial and post- conviction narratives, explains the
courts' reasoning in granting relief, and asks Professor Meyer what story is actually being told. Williams v. Allen n65 is
"Cinderella," n66 Gray v. Branker n67 is "The Emperor's New Clothes." n68 Capital decision makers respond to these
classic tales of "'treachery' and 'revenge' and 'honor' and 'reward' and 'defeat.'" n69 The legal lesson is that the defense is
ineffective if the mitigation case is incomplete, misleading, or fails to present the full picture of the defendant and his
circumstances. The practice lesson is that the narrative works when it strikes a familiar cord.
My own contribution to this symposium, Mothers and Sons: The Lloyd Schlup Story, n70 is intended to illustrate a
growing challenge in capital defense: finding a forum for the client's story. I can add nothing to the excellent demonstration of the importance of thorough investigation and narrative technique that is collected elsewhere in this symposium. The Lloyd Schlup story illustrates a different problem facing capital defense attorneys. The growing restrictions
on habeas corpus review of death sentences present serious obstacles to attorneys representing unjustly convicted or
sentenced death row inmates, and because there is no right to effective assistance of counsel in state post-conviction n71
or on federal habeas corpus, n72 a prisoner can be executed even if his conviction and sentence violates the Constitution. n73 The story in Lloyd's case, ironically, is not so much about discovering the evidence of his innocence as it is
about finding an audience willing to hear our story. We found that audience only after reaching out to Ida Bea Dade, the
mother of the victim in Lloyd's case, who lowered the resistance of other decision-makers to hearing our story.
Marc Bookman is a Senior Trial Attorney with the Homicide Unit of the Public Defender Association of Philadelphia. In Smoke, n74 he recounts his team's [*845] investigation and defense of Rafiq Fields. n75 There is much about
the death penalty that is counter-intuitive, but perhaps nothing more so than defending a client who persistently asserts
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his innocence. Defending a guilty client in a capital case is a much more straightforward proposition-defense counsel
can investigate the client's background and mental health to explain or give context to his violent actions, and the client's remorse is perceived by juries to be highly mitigating. n76
A claim of innocence, on the other hand, is dangerous; a defendant who denies his guilt is twice as likely to be sentenced to death as a defendant who admits guilt. n77 Persons who are squeamish about imposing the death penalty are
eliminated during the voir dire process, resulting in a jury that is conviction- prone. n78 Further, a denial defense is
likely to be interpreted as lack of remorse, which is highly aggravating. n79 A client such as Mr. Fields who is adamant
about his innocence may interpret the lawyer's preparation for the penalty phase of trial as disbelief, leading to tension
and mistrust in the attorney- client relationship. n80 These circumstances no doubt contribute to the relatively high rate
at which innocent persons are convicted of capital crimes and sentenced to death. n81
Marc's story demonstrates how an experienced capital defense team navigates these treacherous waters. He salts his
narrative of the investigation into Fields' defense with basic rules of the work. Referring to the necessity to work in
teams, Marc notes that, "Capital defense is not solitary work." n82 He reminds us, "Capital cases are won in investigation." n83 Referring to the delicate, painstaking investigation into mitigation, Marc observes, "Capital defense teams are
archeologists," digging into the client's remote past, ferreting out clues, gently brushing away the dirt to get a better
view, without spoiling the faint images that provide clues to untold trauma. Their investigation revealed that Fields had
schizophrenia, which is among the most severe mental disorders. n84
Marc's story also highlights the cultural differences that typically exist between a capital defense team and the client. "We were on one side of a chasm, and Rafiq Fields was on the other." n85 It is not at all unusual that the client and
the defense team come from vastly different racial, cultural and socio- economic [*846] backgrounds. n86 Again,
Marc's story demonstrates that exhaustive investigation is crucial to a reliable outcome. His team actually went to the
west coast to find a witness who clearly did not want to be found-and actually ran away from Marc's investigator.
In the end, the team not only saved Rafiq Fields from the death penalty, but won his release from prison, only to
have him disappear back into the transient lifestyle from which he had come.
Denny LeBoeuf's story, Joel in the Wormhole, n87 gives a personal account of what it is like to defend a death
penalty case. She candidly talks about how we are affected by the work that we do, and the things that we are exposed
to in the course of defending our clients-the tragedy of homicide and the victim's pain, the heartbreak of the client's upbringing and social struggles, the ire of aggressive prosecutors pursuing the client's absolute destruction, and the frustration of fighting well-funded, skilled opponents with little or no defense resources. Ms. LeBoef's story captures that surrealistic quality that eventually sets in when you defend a death case. Like the British intern who gasped when she heard
the prosecutor demand the death penalty from a jury in open court, n88 there is a part of us that denies the reality of
capital punishment because our hearts and minds won't absorb the whole picture of a physically healthy person being
ceremoniously strapped to a gurney and poisoned to death.
Ms. LeBoeuf's name for that phenomenon is "The Wormhole." She is dropped into The Wormhole "[r]eading a legal decision that tidies up the facts or contorts the meaning of the law, all to get death . . . ." n89 Once the lawyer - or
the client - enters The Wormhole, "the banal surroundings of the courtroom and the office fall away, and . . . we are
face-to-face with the reality of the death penalty." n90 Ironically, the surrealism of The Wormhole is real. Witnessing
an execution, a much more passive act than defending a capital client, has triggered post-traumatic dissociative symptoms in journalists. n91
Ms. LeBoeuf's story accentuates the storyteller as observer-the sights, the smells, the small details-a mother who
won't look at her children, a father who smells of beer, "not on his breath, but coming through his pores, yesterday's
[*847] beer." n92 She describes it as "cultivat[ing] the space between observation and judgment," or finding "what
was there by looking for what was missing." n93 Living in that negative space of what remains unsaid eventually led
her to discover Joel's family secret: sexual abuse of Joel's foster- brother at the hands of their father, and the resulting
anger, confusion, fear, hatred and resentment no normal child knows how to deal with. Ms. LeBoeuf eventually succeeds in developing for the jury the story of Joel's life that saves him from the death penalty.
There are several common threads running through all of the stories collected in this symposium. Thorough investigation by a multi-disciplinary defense team is critical to achieving just results for the client. Teamwork is necessary
not just because of the multiple skills necessary to uncover and present a persuasive story, but because the burden of
responsibility for a human life is too heavy for one person alone to bear. Thoughtful and compassionate collection and
presentation of the facts are essential elements of telling the client's story. To be persuasive, the story must be unim-
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peachably true, which requires corroboration in every way imaginable- documents, collateral sources, expert witnesses,
and physical evidence. To persuade decision-makers against the death penalty, the story must reveal the client's intrinsic
humanity.
Finally, several authors provide a glimpse ofthe emotional burden of this work. A victory, after all, may simply
mean that the client is not executed, but condemned to spend the rest of his life in prison-death by incarceration. The
trauma of the loss of human life-the victim's and the client's-is never washed away. The burden of capital defense work
is heavy, as we are reminded when Denny LeBoeuf tells herself, "I am not up to this." n94 I agree with the final words
of Michael Mello, sent to us hours before his premature death, at the age of fifty-one, "I'm too young for this shit." n95
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FOOTNOTES:
n1 Bob Dylan, A Hard Rain's A-Gonna Fall, on The Freewheelin' Bob Dylan (Columbia Records 1963).
n2 Welsh S. White, Litigating in the Shadow of Death: Defense Attorneys in Capital Cases 3 (2006).
n3 "The basic concept underlying the [Eighth Amendment] is nothing less than the dignity of man." Furman
v. Georgia, 408 U.S. 238, 270 (1972) (Brennan, J., concurring) (quoting Trop v. Dulles, 356 U.S. 86, 100
(1958)).
n4 Professor Mello's obituary can be found on the Vermont Law School web site. See Vermont Law School,
Michael Mello, http://www.vermontlaw.edu/News and Events/News/ Tributes to the Life of Michael
Mello/Michael Mello.htm (last visited Mar. 14, 2009).
n5 See Michael A. Mello, Against the Death Penalty: The Relentless Dissents of Justices Brennan and
Marshall (1996); Michael A. Mello, Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment (1997); Michael A. Mello, The Wrong Man: A True Story of Innocence on Death Row (2001); Michael A.
Mello, Deathwork: Representing the Condemned (2002); Michael A. Mello, The United States of America v.
Theodore John Kaczynski: Ethics, Power and the Invention of the Unabomber (2002); Michael A. Mello, Legalizing Gay Marriage (2004).
n6 See Mark E. Olive, Foreword, in Mello, Deathwork, supra note 5, at ix.
n7 Id.
n8 408 U.S. 238 (1972).
n9 Michael Mello, What Came Before We Killed Him: Deconstructing Execution #58, 77 UMKC L. Rev.
849 (2009).
n10 438 U.S. 586 (1978).
n11 481 U.S. 393 (1987).
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77 UMKC L. Rev. 831, *
n12 Mello, supra note 9, at 851.
n13 Id. at 855.
n14 N. Sec. Co. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting).
n15 Olive, supra note 6, at xi.
n16 Id. (footnote omitted).
n17 Id.
n18 Wiggins v. Smith, 539 U.S. 510, 537 (2003).
n19 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases
(2003), reprinted in 31 Hofstra L. Rev. 913 (2003) [hereinafter ABA Guidelines].
n20 ABA Guidelines 10.11, cmt., supra note 19, reprinted in 31 Hofstra L. Rev. 913, 1061. See also Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 Hofstra L. Rev.
677 (2008) [hereinafter Supplementary Guidelines]. "The defense team must . . . obtain, understand and analyze
all documentary and anecdotal information relevant to the client's life history." Supplementary Guidelines 5.1B,
supra, reprinted in 36 Hofstra L. Rev. 677, 682 (2008). The Supplementary Guidelines are the subject of extensive commentary by leading capital case practitioners in Volume 36, No. 3 of the Hofstra Law Review, at
663-1067.
n21 Michael Burt's many capital clients include Lyle Menendez, Carey Stayner and Eric Rudolph. He is an
editor and contributor to the California Death Penalty Defense Manual and The Champion.
n22 Michael N. Burt, The Importance of Storytelling at All Stages of a Capital Case, 77 UMKC L. Rev. 877
(2009).
n23 Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58
N.Y.U. L. Rev. 299, 335 (1983).
n24 Burt, supra note 22, at 880 (quoting Gerald R. Powell, Opening Statements: The Art of Storytelling, 31
Stetson L. Rev. 89, 91 (2001)).
n25 Id. at 881 (quoting Philip N. Meyer, Are Characters in a Death Penalty Brief Like the Characters in a
Movie?, 32 Vt. L. Rev. 877, 877-78 (2008)).
n26 Id. at 883.
n27 Id. at 882 (quoting Craig Haney, Evolving Standards of Decency: Advancing the Nature and Logic of
Capital Mitigation, 36 Hofstra L. Rev. 835, 856 (2008)).
n28 Id. at 897.
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n29 Craig Haney et al., Interpersonal Dynamics in a Simulated Prison, 1 Int'l J. Criminology & Penology 69
(1973).
n30 Craig Haney, On Mitigation as Counter-Narrative: A Case Study of the Hidden Context of Prison Violence, 77 UMKC L. Rev. 911 (2009).
n31 Id. at 911.
n32 Id. at 917.
n33 Id. at 912. To protect privacy interests of the defendant, the victim and witnesses, Dr. Haney uses fictitious names for people and locations. Id. at 911 n.1.
n34 Id. at 933.
n35 Id. at 934.
n36 Id. at 937.
n37 Id. at 938.
n38 Id. at 940.
n39 Id. at 943.
n40 Id. at 945.
n41 Russell Stetler is a former journalist and serves as the National Mitigation Coordinator for the Federal
Public Defender System. He has written many articles on investigating wrongful convictions, mitigation evidence, mental health issues and working with victims' survivors. He is coauthor of chapters on psychiatric issues
in death penalty cases in two recent books on forensic mental health.
n42 See Supplementary Guidelines 4.1D, supra note 20, reprinted in 36 Hofstra L. Rev. 677, 680-81 (2008).
n43 Russell Stetler, The Unknown Story of a Motherless Child, 77 UMKC L. Rev. 947 (2009).
n44 Supplementary Guidelines 10.11.E.2, supra note 20, reprinted in 36 Hofstra L. Rev. 677, 690-91 (2008),
requires investigation into the defendant's family "extending at least three generations back." In Edgar's case, the
investigation traced the family history back to the days of slavery, when his ancestors arrived in Atlanta as part
of the Second Middle Passage. Stetler, supra note 43, at 954.
n45 Stetler, supra note 43, at 953.
n46 Id. at 951.
n47 Id. at 962.
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77 UMKC L. Rev. 831, *
n48 See ABA Guidelines 4.1A, supra note 19, reprinted in 31 Hofstra L. Rev. 913, 952 (2008) (The defense
team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator,
and a mitigation specialist.").
n49 John H. Blume & Sheri Lynn Johnson, Back to a Future: Reversing Keith Simpson's Death Sentence
and Making Peace With the Victim's Family Through Post-Conviction Investigation, 77 UMKC L. Rev. 963
(2009). John Blume is a Professor of Law and Director of the Cornell Death Penalty Project, and has represented
prisoners under sentence of death in South Carolina and other states for more than twenty years. Sheri Lynn
Johnson is a Professor of Law and Assistant Director of the Cornell Death Penalty Project.
n50 Id. at 963.
n51 Id.
n52 Mark Olive, Narrative Works, 77 UMKC L. Rev. 989 (2009)
n53 529 U.S. 362 (2000).
n54 539 U.S. 510 (2003).
n55 545 U.S. 374 (2005).
n56 See Gray v. Branker, 529 F.3d 220 (4th Cir. 2008); Williams v. Allen, 542 F.3d 1326 (11th Cir. 2008);
Walbey v. Quarterman, No. 08-70007, 2009 WL 113778 (5th Cir. January 19, 2009).
n57 See, e.g., United States v. Paul, 534 F.3d 832 (8th Cir. 2008).
n58 Olive, supra note 52, at 998.
n59 Id. at 1010.
n60 Id. at 1001.
n61 Id. at 1002.
n62 Id.
n63 See, e.g., Philip N. Meyer, Retelling the Darkest Story: Mystery, Suspense, and Detectives in a Brief
Written on Behalf of a Condemned Inmate, 58 Mercer L. Rev. 665 (2007).
n64 Olive, supra note 52, at 1003.
n65 542 F.3d 1326 (11th 2008)
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77 UMKC L. Rev. 831, *
n66 Olive, supra note 52, at 1012.
n67 529 F.3d 220, 223 (4th Cir. 2008).
n68 Olive, supra note 52, at 1017.
n69 Id. at 1023 (quoting Anthony Amsterdam & Jerome Bruner, Minding the Law 46 (2000)).
n70 Sean D. O'Brien, Mothers and Sons: The Lloyd Schlup Story, 77 UMKC L. Rev. 1021 (2009).
n71 See Pennsylvania v. Finley, 481 U.S. 551 (1987).
n72 See Murray v. Giarratano, 492 U.S. 1 (1989).
n73 See Coleman v. Thompson, 501 U.S. 722 (1991); Herrera v. Collins, 506 U.S. 390 (1993).
n74 Marc Bookman, Smoke, 77 UMKC L. Rev. 1051 (2009). Mr. Bookman emphasizes the importance of
teamwork. His fellow team members on this case included co-counsel Karl Schwartz and mitigation specialist
Dana Cook.
n75 Rafiq Fields is a pseudonym used to protect the privacy of Marc's client.
n76 See Steven P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think? 98 Colum.
L. Rev. 1538 (1998) (acceptance of responsibility and remorse are highly mitigating).
n77 Scott E. Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse and the
Death Penalty, 83 Cornell L. Rev. 1557, 1575 (1998).
n78 Lockhart v. McCree, 476 U.S. 162, 184-85 (1986) (Marshall, J., dissenting).
n79 Sundby, supra note 77, at 1559.
n80 White, supra note 2, at 78.
n81 See Death Penalty Information Center, Innocence: List of Those Freed from Death Row,
http://www.deathpenaltyinfo.org/article.php?scid=6&did=110 (Sept. 18, 2008). To date, 130 men and women
have been released from death row based on new evidence of innocence. See id.
n82 Bookman, supra note 74, at 1052.
n83 Id. at 1053.
n84 Id. at 1054.
n85 Id. at 1055.
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77 UMKC L. Rev. 831, *
n86 Scharlette Holdman & Christopher Seeds, Cultural Competency in Capital Mitigation, 36 Hofstra L.
Rev. 883 (2008).
n87 Denny LeBoeuf, Joel in the Wormhole, 77 UMKC L. Rev. 1059 (2009). Ms. LeBoeuf has litigated capital cases at trial and in post-conviction for twenty years, in Louisiana and other states. She is currently the Director of the American Civil Liberties Union's John Adams Project, coordinating the ACLU's efforts in the coalition representing capitally-charged Guantanamo detainees in the Military Commissions.
n88 Id. at 1062.
n89 Id. at 1063.
n90 Id.
n91 Andrew Freinkel et al., Dissociative Symptoms in Media Eyewitnesses of an Execution, 151 Am. J.
Psychiatry 1335 (1994). Dissociative symptoms refer to sensory experiences that are divergent from reality-visual, auditory, tactile hallucinations, or a sense of disorientation such as deja vu or jamais vu.
n92 LeBoeuf, supra note 87, at 1067.
n93 Id. at 1066.
n94 LeBoeuf, supra note 87, at 1060.
n95 Mello, supra note 9, at 875.