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Anyone visiting the New York office of Kaye Scholer on the night of June 8 would have found a group of anxious lawyers. They were anxious for good reason: A man’s life was at stake. The U.S. Supreme Court had just denied Percy Levar Walton’s appeal to overturn the 4th U.S. Circuit Court of Appeals decision that vacated his stay of execution. Consequently, his last hope was the firm’s clemency petition, which had been filed with the office of Virginia’s Democratic governor, Timothy M. Kaine. The result of 2,500 hours of pro bono work, the petition asserted that Walton’s mental condition began to decline a few years before the murders, and has deteriorated ever since. As a result, the petition argued, he does not understand what the death penalty entails, making him ineligible to receive the lethal injection. In Ford v. Wainwright, 477 U.S. 399 (1986), the Supreme Court ruled that executing an insane person was unconstitutional, and more recently disallowed the execution of the mentally retarded. Swayed by Kaye Scholer’s petition and with about an hour to spare, Kaine stopped short of granting clemency, deciding to give Walton a six-month reprieve so that the governor’s office could conduct an independent review into the inmate’s mental condition. “Due to the history of judicial concern about his mental status, the claims in Walton’s clemency petition are entitled to serious consideration,” Kaine wrote in a statement. In a written statement, J. Tucker Martin, a spokesman for Virginia Attorney General Robert F. McDonnell, said the attorney general believes that Walton is competent to be executed, but that he recognizes Kaine’s right to exercise his authority. Walton pleaded guilty in 1997 to murdering an elderly couple and a neighbor and was subsequently sentenced to death. He never had a competency hearing, and his lawyers have been trying to prove his mental incompetence ever since. Walton’s symptoms most likely come as the result of debilitating schizophrenia, in addition to a declining IQ that was measured at 66 the last time it was tested. Attorney Jennifer Givens of the Virginia Capital Representation Resource Center, who has handled Walton’s defense since 1999, said that the lower courts’ interpretation of Ford v. Wainwright was very narrow. She believed it would have been a “good issue for the Supreme Court to take up.” In case all of her legal alternatives failed to produce a satisfactory outcome, she recruited Kaye Scholer to help with Walton’s clemency proceedings. It was a good move. “Those [last few hours before Kaine's decision] were very nervous times, but I always maintained hope that the governor would do the right thing,” said Lori Leskin, a partner at Kaye Scholer who worked on Walton’s clemency petition. Kaye Scholer got involved in Walton’s case in 2003. A total of 11 Kaye Scholer lawyers and legal assistants worked on the clemency petition, according to the firm. Their work included researching previous petitions, combing through the record, and lobbying for support from world leaders, such as Desmond Tutu, and from the public. Andrea Brustein, an associate at Kaye Scholer who worked on the petition, said that while she never met Walton, she “felt that she got to know him through his testimony. “I saw that he was in awful, awful shape, which made the case more emotional for me,” she said, adding that as the date got closer, the group became increasingly nervous about the outcome. Leskin said that even though the clemency petition is now complete, Kaye Scholer would continue to be involved with Walton’s case.

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