New Podcast: Capital Defense Lawyer Kelley Henry on Death Penalty Litigation During a Pandemic

In the May 2020 edition of Discussions with DPIC, veteran capital defense lawyer Kelley Henry (pictured), who is representing several Tennessee death-row prisoners facing execution dates in 2020, speaks with DPIC Executive Director Robert Dunham about the unprecedented challenges of litigating death-penalty cases during the coronavirus pandemic. Henry, a Supervisory Assistant Federal Public Defender in Nashville, provides an inside view of how the extended public health emergency has affected end-stage litigation in death-penalty cases, especially the final investigations and clemency efforts that take place in the months leading up to an execution.

Henry describes the critical, in-person work that must take place to investigate innocence claims, determine a prisoner’s competency to be executed, and tell a prisoner’s story in clemency proceedings, and why it is impossible to adequately perform that work while complying with efforts to protect the public health. She also discusses the danger of performing executions during the pandemic and the reasons why states should put executions on hold to ensure the health of prisoners, witnesses, and corrections staff.

Henry debunks the notion that capital defense lawyers file claims at the last minute merely as a stalling tactic, calling that myth a “complete misperception.” She explains that issues like newly uncovered juror misconduct, discovery of previously withheld evidence, scientific advancements, and changing laws often force attorneys to file major litigation close to a prisoner’s execution date. In her nearly thirty years of practice, Henry said, “It is the rare client who doesn’t have serious litigation pending at the end.” She also noted that litigation times are dramatically and artificially compressed when an execution date is set, pointing to the example of Tennessee recently requesting ten execution dates, which forced five years’ worth of litigation into an eight-month period.

Dunham and Henry – both experienced capital litigators – discuss the importance of in-person interviews during the months leading up to an execution date, both for final litigation efforts and for clemency investigations. They describe how the opportunity to build rapport with prisoners’ families or read the body language of a juror or witness have led to crucial breakthroughs in cases. Asked why final investigations can’t be done by phone, Henry explains, “We know from scientific studies of human behavior, that you’re just not going to get the level of cooperation, the depth of information, and knowledge that you gained from an in-person interview.” She also describes how mental health experts conducting competency evaluations have to meet with a prisoner in person to “read facial cues, to see hesitations” and to avoid technological issues, like time lags, that could affect their assessments. The coronavirus pandemic has made it impossible to conduct these face-to-face interactions, Henry explains, requiring capital defense lawyers whose clients are nearing the end stages of litigation to request stays of execution.

Henry says prisons have halted in-person legal visits to reduce the spread of COVID-19, a measure that she finds difficult but necessary. “If it was another situation, I would be the first one at the courthouse steps complaining about being denied access to my client. But my client’s safety has to come first, as does the safety of the community. And this isn’t about just the client. It’s about the corrections officers. It’s about the people in my office. It’s about the family members of the corrections officers, the family members of people in my office, the people that they will come into contact with…. It’s about saving lives.”

In light of these concerns, Henry argues that executions—which require the presence of lawyers, family members of the victims and prisoner, media witnesses, and corrections personnel—should be halted during the pandemic. “This is something unprecedented. And we hope it never happens again, and we’re all doing the best that we can. But this is one obstacle that can be removed. Nobody has to be executed right now. Nobody has to be executed this year. Let’s get through this pandemic. And then you know, if we want to fight about whether or not somebody deserves to be executed or not, we can do so then. But right now, to do so needlessly puts lives at risk.”