Rocap, partner at Steptoe & Johnson in D.C. has represented Virginia death row inmate Teresa Lewis since 2004. But this week the final avenues of appeal were closing, one by one. Virginia Gov. Bob McDonnell refused to grant clemency twice, and late Tuesday the U.S. Supreme Court denied Lewis a stay of execution by a 7-2 vote and rejected Rocap's petition for certiorari. Barring any unforeseen development, she will be executed tonight at 9 at the Greensville Correctional Center in Jarratt, the first woman put to death in nearly a century by Virginia.
"We are deeply disappointed," Rocap said in a statement after the Court action was announced. "A good and decent person is about to lose her life because of a system that is badly broken."
Earlier on Tuesday Rocap sounded optimistic, having filed with the Court a petition offering two seemingly plausible arguments for habeas relief: one, based on Apprendi v. New Jersey claiming a jury, not a judge should have decided if she should be sentenced to death, and the other a Strickland v. Washington claim about the trial lawyer's failure to rebut aggravating factors raised during her sentencing.
"This was not an innocence case, but it is as good an example as you can find of someone who should not be put to death," said Rocap. "Teresa is a poster child for why the death penalty process is broken."
Lewis, 41, pleaded guilty in 2003 to hiring two men to kill her husband and stepson for insurance money. She was sentenced to death even though she is borderline mentally retarded. The two "triggermen" were sentenced to life in prison.
Rocap took on her case as part of the American Bar Association's project that recruits lawyers to represent death row inmates who have no lawyer. He specializes in civil litigation, but had previously handled a capital case while working with Seth Waxman, then the future solicitor general, at Miller Cassidy. Chair of Steptoe's pro bono committee, Rocap said the firm has been "very supportive" of his long-running representation.
As soon as he looked into Lewis's case, Rocap said, "I thought, 'something is wrong here.' She has no background whatsoever in this kind of activity." He identified several flaws in the case, including the court-appointed counsel's failure to rebut the state's assertion that her "depravity of mind" was an aggravating factor that justified the death penalty.
"Evidence of Teresa's exceptionally low intelligence, bordering on mental retardation, and of her dependent personality disorder, would have … created at least a reasonable doubt as to whether Teresa's involvement in the crimes was the result of a depraved mind," Rocap wrote in the petition.
In the end, the high court was not convinced, though justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have granted a stay.
Rocap got to know Lewis well through the lengthy appeals process. "If Ted Bundy was the worst of the worst, then she is it the opposite end of the spectrum. She is a very simple, direct person with a very deep faith. It is difficult to believe we are going to have this death machinery roll over her."
Asked if he would travel to the execution if the Supreme Court failed, Rocap said yes. "I will be with her through the very end."