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.”