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Editor’s note: This is the first story in a five-day series profiling unsung local pro bono heroes. Clifford Gardner is reluctant to accept praise for the pro bono work he does. He insists he’s simply a for-profit criminal defense attorney, not someone who provides free legal counsel to death row inmates out of some overarching philanthropic mission. “I didn’t hang up a shingle that said ‘lawyer for free,’” said Gardner from his office, a room in a Victorian flat in San Francisco’s Marina District. “When people come into this office their lives have already been shattered. My clients had already put their complete trust in another lawyer and been disappointed. They don’t trust the legal system. They had exhausted all of their resources or didn’t have money to begin with.” But Gardner, 46, does admit that a large percentage of his work is done for free. Working pro bono comes with the territory when representing post-conviction criminal clients. While there’s a need for a steady stream of paying clients, money cannot be a prerequisite when working with people on death row, he says. “Cliff has one of the highest reputations in the [death penalty] community in terms of legal skills,” said Lynne Coffin, of the state public defender’s office. “He’s often called on to figure out the thorny legal questions.” About 150 people are without counsel on death row in California, so the demand for attorneys like Gardner is high. Choosing which cases to work on is the hard part. For Gardner, it’s a gut feeling. The difficult part is balancing his pro bono clients, who are often the poor families of prisoners, with his private, for-profit clients. “Cliff has always been ready to assist and give his expertise in whatever case needed help,” Coffin said. “A lot of people in this community are generous with their time, but he’s so skilled — he just makes a huge contribution.” After graduating from UCLA School of Law in 1980, Gardner began practicing law at O’Melveny & Myers in Los Angeles. While at O’Melveny, Gardner said, one case served as a catalyst in deciding the direction of his career. Gardner defended a school district in a case brought by a janitor who had been fired. “He was a veteran of World War II and the Korean War who had been fired,” he said. “We dusted him in court.” After the win, Gardner returned to his office flushed with victory. Then he started thinking. “This janitor was a veteran of two major wars,” he said, clearly still regretting his role in the case after all these years. “While the school district was entitled to representation, they weren’t entitled to me. I quit the next day.” After that night of soul-searching, Gardner felt as if he had lost his way. He took one pro bono case when he left the firm — a federal habeas corpus for a state murder conviction — and moved to San Francisco to start his own practice. “It was an incredibly stupid move. Most people take corporate clients with them when they leave a firm. I took one pro bono client and came to San Francisco.” That one pro bono case got him started working on capital cases, and Gardner applied to the California Supreme Court to be considered for appointed counsel. He was turned down twice. He admits that he wasn’t ready and didn’t have enough experience at the time. Things began to change for him in the early 1980s after he read an article one Sunday in The New York Times. The story described the large number of people on death row with no legal counsel. The piece moved him to write a letter offering his services to the NAACP, which organized counsel in such circumstances. He received a quick response. The NAACP put him on a case in Idaho defending a convicted murderer who had killed another prisoner in a prison fight. “It was an extraordinary but enormous undertaking for virtually no pay. I was completely not qualified,” he said matter-of-factly. “I got through with help from the criminal defense bar, the capital defense bar; all I had to do was ask.” One issue of the case eventually reached the U.S. Supreme Court. He lost 7-2, with Justices Harry Blackmun and John Paul Stevens dissenting. Nonetheless, Gardner’s client is still alive, which is how he describes a death penalty lawyer’s standard for victory. In 1998, Gardner argued and lost another case before the U.S. Supreme Court. In Monge v. California, 524 U.S. 721, Gardner argued a Three Strikes double-jeopardy case. In a 5-4 ruling, the court held that prosecutors can try more than once to prove prior convictions. “You often hear older lawyers refer to an air of civility that has been lost in the younger generation of attorneys,” said state Deputy Attorney General David Glassman, who opposed Gardner in the Monge case. “Cliff manages to represent his client diligently and professionally, remaining cordial to opposing counsel — even in a case as hard fought as Monge was.” Gardner has carved out a reputation as an ethical, steadfast attorney. “In a community in which there’s sometimes a lot of second-guessing of people’s decisions, I’ve never heard anyone second-guess work he’s done,” said Coffin. His willingness to work on death penalty appeals on a pro bono basis stems from his ardent opposition to capital punishment. Gardner’s eyes widen and his speech quickens when he talks about it. “The death penalty will be abolished — much as people in the 19th century talked about the abolishment of slavery. The U.S. will someday catch up with the rest of the world.”

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