Perspectives on Representing Death Row Inmates

Ken Rose has rep­re­sent­ed peo­ple con­demned to death in the south for 30 years and recent­ly described his expe­ri­ence with this ​“flawed sys­tem:” ​“The sys­tem reflects our bias­es and blind spots,” he said. ​“Just like us, it is sus­cep­ti­ble to error and prej­u­dice and, some­times, an indis­crim­i­nate desire for revenge. Like our coun­try, it favors the priv­i­leged and takes the heav­i­est toll on the poor and men­tal­ly ill.” As an exam­ple, Rose told the sto­ry of one of his clients, Leo Edwards, whose gas-cham­ber exe­cu­tion he wit­nessed in Mississippi in 1989. Edwards, who was black, was pros­e­cut­ed by a dis­trict attor­ney who said he tried to ​“get rid of as many” black jurors as pos­si­ble, and tes­ti­fied that he used that tac­tic in Edwards’ tri­al, result­ing in an all-white jury. The tim­ing of Edwards’ case pre­vent­ed him from receiv­ing a new tri­al: ​“This clear racial bias was nev­er addressed because Leo’s case was too far along by 1987, when the U.S. Supreme Court set new stan­dards for review­ing claims of race dis­crim­i­na­tion in jury selec­tion,” he said. Rose not­ed that some improve­ments have been made, but ​“Racial bias still taints tri­als. Defendants are still cho­sen for death arbi­trar­i­ly. Those sen­tenced to die are still over­whelm­ing­ly poor and men­tal­ly ill. Judges and lawyers, includ­ing myself, still make mis­takes. Innocent peo­ple are still impris­oned.” Read the op-ed below.

Death Penalty flawed by imperfect human nature

In June 1989, my client Leo Edwards was the last man in Mississippi to be exe­cut­ed in a gas cham­ber. I watched as Leo’s head flapped uncon­trol­lably against an iron post for sev­er­al min­utes before he was pronounced dead.

As I watched him strug­gle to die, I believed that Leo was guilty of the crimes for which he was charged — mur­der­ing a man dur­ing a rob­bery spree fol­low­ing his escape from the Louisiana State Penitentiary. I did not then, and do not now, excuse his crimes.

However, I also believed that, like so many of the clients I have rep­re­sent­ed dur­ing three decades work­ing on behalf of con­demned men and women, Leo was sen­tenced to die by a flawed sys­tem in which the rules were open­ly flaunt­ed by the pros­e­cu­tion. Had the sys­tem been fair, I do not think he would have been sen­tenced to die.

Leo Edwards was pros­e­cut­ed by the long-serv­ing elect­ed dis­trict attor­ney, Ed Peters, who had a rep­u­ta­tion for strik­ing African-American prospec­tive jurors from jury ser­vice. Indeed, Peters admit­ted in a news­pa­per arti­cle in July 1983 that, when he was pre­sent­ed with blacks on a jury pan­el his phi­los­o­phy was to ​“get rid of as many” as he could. Peters said blacks were less law-enforce­ment ori­ent­ed than whites. Peters lat­er tes­ti­fied that he exer­cised that phi­los­o­phy at Leo Edwards’ tri­al, result­ing in the all-white jury that sen­tenced Leo, a poor black man, to death.

This clear racial bias was nev­er addressed because Leo’s case was too far along by 1987, when the U.S. Supreme Court set new stan­dards for review­ing claims of race dis­crim­i­na­tion in jury selec­tion. But for a bit of poor tim­ing, I am con­fi­dent that Leo would have been award­ed a new tri­al. The fact that Leo died while oth­er con­demned men were par­doned was completely arbitrary.

I have spent the past three decades advo­cat­ing for con­vict­ed mur­der­ers. They are peo­ple whose lives have been deemed worth­less by the vast major­i­ty of soci­ety. They have killed and so they deserve to die, the stan­dard reasoning goes.

However, my career has taught me that exe­cu­tions say less about the crim­i­nals than they do about us, the soci­ety that car­ries them out. The sys­tem reflects our bias­es and blind spots. Just like us, it is sus­cep­ti­ble to error and prej­u­dice and, some­times, an indis­crim­i­nate desire for revenge. Like our coun­try, it favors the priv­i­leged and takes the heav­i­est toll on the poor and mentally ill.

As a young lawyer start­ing out in Mississippi, I had lit­tle com­pe­ti­tion for cap­i­tal defense work. At that time, attor­neys appoint­ed to rep­re­sent poor cap­i­tal defen­dants were paid a max­i­mum of $1,000 per case, no mat­ter how much time they spent. Occasionally, we recruit­ed a large law firm from New York or Washington D.C. to rep­re­sent a death row inmate for free. Most often, death row inmates were poor­ly rep­re­sent­ed by attor­neys with lit­tle time or inter­est in their cases.

Trying to stem the tide of exe­cu­tions was an unend­ing bat­tle, in which we were vast­ly out­matched. Some of my clients were picked for exe­cu­tion because of my mis­takes, or the mis­takes of oth­er attor­neys. My client Edward Earl Johnson, who was just 17 years old at the time of his crime, was exe­cut­ed despite my doubts about his guilt. There seemed to be grave injus­tices in every case, but no rhyme or rea­son why some lived and some died.

When I arrived in North Carolina in 1989, then one of the lead­ing death sen­tenc­ing states in the nation, things were much the same.

During the past 25 years, I have worked along­side a team of ded­i­cat­ed peo­ple to win many impor­tant vic­to­ries and reforms. Five death-sen­tenced men have been exon­er­at­ed in North Carolina. Many oth­er clients have been saved from exe­cu­tion because of seri­ous injus­tices in their cas­es. New laws ensure that defen­dants now receive an ade­quate defense and have rights to exam­ine the evi­dence against them. One or two peo­ple a year are now sen­tenced to die in North Carolina, down from an aver­age of 25 a year in the 1990s. No one has been exe­cut­ed since 2006.

Yet, none of those vic­to­ries has erased the prob­lems at the root of our cap­i­tal pun­ish­ment sys­tem. Racial bias still taints tri­als. Defendants are still cho­sen for death arbi­trar­i­ly. Those sen­tenced to die are still over­whelm­ing­ly poor and men­tal­ly ill. Judges and lawyers, includ­ing myself, still make mis­takes. Innocent peo­ple are still imprisoned.

No mat­ter how many reforms we enact, these basic facts will nev­er change. Our cap­i­tal pun­ish­ment sys­tem is cre­at­ed and car­ried out by human beings, who are by their nature imper­fect and prone to error.

Over the years, I have got­ten to know many of my clients and cared deeply about what hap­pened to them and their fam­i­lies. Some were inno­cent and oth­ers were clear­ly guilty. Some were remorse­ful, while oth­ers were angry or uncom­mu­nica­tive. Many were men­tal­ly ill or dis­abled. Four of them were executed.

What I have learned from try­ing to save their lives is that they are no more or less human than myself — and that none of us is per­fect enough to decide who lives and dies.

Ken Rose is a Senior Staff Attorney at the Center for Death Penalty Litigation in Durham.

(K. Rose, ​“Death Penalty flawed by imper­fect human nature,” Laurinburg Exchange, April 1, 2014). See Arbitrariness and Race.