American Bar Association Death Penalty Representation Project Has Removed 100 Prisoners from Death Row

In February 2017, the U.S. Court of Appeals for the Sixth Circuit over­turned the con­vic­tion and death sen­tence of Tennessee death-row pris­on­er Andrew Lee Thomas, Jr., rul­ing that Shelby County District Attorney General Amy Weirich had uncon­sti­tu­tion­al­ly with­held evi­dence that a key pros­e­cu­tion wit­ness had been paid for her coop­er­a­tion in the case and then delib­er­ate­ly elicit­ed per­jured tes­ti­mo­ny from the wit­ness that she had not received ​“one red cent” for her coop­er­a­tion. Last month, pro bono lawyers from Winston & Strawn reached a plea deal for Thomas with Memphis pros­e­cu­tors for a 25-year sen­tence that took Thomas off death row. 

Winston & Strawn was recruit­ed by the American Bar Association’s Death Penalty Representation Project in 2006 to rep­re­sent Thomas. The Project has worked for the past 33 years to per­suade law firms to agree to pro­vide free rep­re­sen­ta­tion to unrep­re­sent­ed or under­rep­re­sent­ed death-row pris­on­ers across the coun­try. Thomas’ resen­tenc­ing marked the 100^th pris­on­er tak­en off of death row as a result of the efforts of vol­un­teer lawyers recruit­ed by the Project.

On September 19, 2019, the Project will hold its annu­al din­ner acknowl­edg­ing the work of pro bono lawyers. The keynote speak­er for the event is Philadelphia District Attorney Larry Krasner, whose office on September 11 argued to the Pennsylvania Supreme Court that it should strike down the death penal­ty in the state because of the commonwealth’s sys­temic fail­ure to pro­vide com­pe­tent defense rep­re­sen­ta­tion to indi­gent capital defendants. 

The U.S. Supreme Court declared in 1989 that the Sixth Amendment does not guar­an­tee coun­sel for cap­i­tal pris­on­ers in post-con­vic­tion or habeas pro­ceed­ings, leav­ing many death-row pris­on­ers to nav­i­gate the com­plex sys­tem of cap­i­tal appeals alone. Since it began keep­ing case-place­ment records in 1998, the Project has assist­ed more than 350 pris­on­ers with their death-penal­ty appeals. 100 of those cas­es have now result­ed in final grants of relief that have per­ma­nent­ly tak­en the Project’s clients off of death row. 

Among the 100 are 15 peo­ple who were released from prison on evi­dence of inno­cence. Five received exec­u­tive clemen­cy to reduce their sen­tences, and the rest were resen­tenced to life in prison or a term of years after their lawyers showed that the death sen­tences in their cas­es had been uncon­sti­tu­tion­al­ly imposed. In announc­ing the 100^th release from death row on September 3, the Project said, “[n]ot one of these vic­to­ries came eas­i­ly, in a sys­tem that is designed to leave death sen­tences in place even in the face of over­whelm­ing evi­dence that exe­cu­tion would be unjust. Every life saved by the Project’s vol­un­teer lawyers is a tes­ta­ment to the ded­i­ca­tion, com­pas­sion, cre­ativ­i­ty, and count­less hours of work devot­ed by these skilled advocates.”

The announce­ment also stressed the impor­tance of pro bono coun­sel, even in cas­es that result in exe­cu­tion. ​“The Project counts every case placed with pro bono coun­sel as a vic­to­ry, regard­less of the even­tu­al out­come. Without the assis­tance of coun­sel, a pris­on­er has no voice in the legal sys­tem to tell his sto­ry and seek help from the courts. In the absence of a con­sti­tu­tion­al guar­an­tee of coun­sel, vol­un­teer attor­neys rep­re­sent access to jus­tice for their clients and integri­ty in the crim­i­nal justice system.”

Among the exam­ples of pris­on­ers who won relief with the assis­tance of the ABA Death Penalty Representation Project is Joe Lee Guy, a Texas pris­on­er whose tri­al attor­ney had been dis­ci­plined by the state bar more than a dozen times. The unli­censed inves­ti­ga­tor hired by the attor­ney ​“tran­si­tioned from defense inves­ti­ga­tor to mer­ce­nary,” in the words of the 2004 dis­trict court deci­sion vacat­ing Guy’s death sen­tence. The inves­ti­ga­tor befriend­ed the victim’s moth­er and coached her on her tes­ti­mo­ny against Guy, the very per­son the inves­ti­ga­tor was sup­posed to be assist­ing. Guy’s pro bono coun­sel locat­ed more than 50 mit­i­ga­tion wit­ness­es to tes­ti­fy about Guy’s abu­sive child­hood and low IQ, which the inves­ti­ga­tor had failed to discover. 

Pennsylvania pris­on­er Jimmy Dennis was freed in 2017 thanks to the efforts of pro bono coun­sel. His lawyers uncov­ered excul­pa­to­ry evi­dence that pros­e­cu­tors had with­held: a state­ment impli­cat­ing two alter­na­tive sus­pects, a state­ment from a pris­on­er who described a phone call with peo­ple who said they were the actu­al assailants, and a receipt that cor­rob­o­rat­ed Dennis’ ali­bi that he had been on a bus else­where in Philadelphia when the mur­der occurred. In 2013, the U.S. District Court for the Eastern District of Pennsylvania vacat­ed his con­vic­tion, writ­ing that he ​“was wrong­ly con­vict­ed of mur­der and sen­tenced to die for a crime in all prob­a­bil­i­ty he did not com­mit.” The dis­trict attor­ney at that time offered him a no-con­test plea to less­er charges, which allowed for his release, but denied him a full exon­er­a­tion and the oppor­tu­ni­ty to seek com­pen­sa­tion for the 20 years he was wrongfully incarcerated.