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Don’t complain to Tom Dunn about the long hours that big-firm lawyers post. As executive director of the Georgia Appellate Practice and Educational Resource Center, which has provided post-conviction counsel to indigent death row inmates in Georgia since the late ’80s, Dunn and his staff of five lawyers are having trouble keeping up with demand. Georgia is one of two states that doesn’t provide lawyers for defendants after their first round of appeals (the other is Alabama), and of the 49 pending death penalty cases in post-conviction habeas corpus proceedings in Georgia’s courts, Dunn’s group is sole counsel in 22, co-counsel in 21 and consulting counsel in the remaining six. The center is also actively involved in 13 of the 27 Georgia cases currently in federal proceedings. All this results in 60- to 65-hour workweeks for Dunn and his staff — during the slower weeks. Despite the heavy caseload, big-firm involvement in pro bono death penalty work has been declining across the country in the past two years, say Dunn and other death penalty activists. In past years, Dunn says, it would take one or two calls to find a co-counsel for a case. But his most recent case took six calls — five firms turned down the request before one signed on. And sometimes no firm signs on, leaving the center, which is funded by foundation and state grants, to handle the case itself. Still, some large firms continue their work in the death penalty area, despite the sizable devotion of resources that they require. These are three of their success stories. A LAST-MINUTE SAVE In November 2000 Robert Smith, a commercial litigation partner at New York’s Paul, Weiss, Rifkind, Wharton & Garrison, obtained a stay of execution from the U.S. Supreme Court for Texas inmate John Paul Penry just three hours before Penry was to be executed. Seven months later Smith successfully appealed Penry’s death sentence before the Court. Penry was no stranger to the justices: In 1989 the Court vacated his conviction and sent his case back for retrial. It ruled that jury instructions in the punishment phase of the trial unconstitutionally failed to allow for consideration of mitigating circumstances — in this case Penry’s mental retardation and childhood abuse. Smith picked up the case in 1990, when Penry’s retrial began in state court in Huntsville, Texas. This time jurors received a bit of information about Penry’s history, but Penry was again sentenced to death. Smith filed a string of appeals alleging that the information was inadequate; they were rejected. Smith traveled to Texas to await Penry’s execution and was there when the Court issued its stay. In vacating the sentence in June, the Court sided with Smith, ruling that jurors had again failed to adequately consider mitigating circumstances. Penry will receive a new sentencing hearing. Smith, meanwhile, is seeking to delay the hearing while the Supreme Court considers a separate case regarding the constitutionality of executing the mentally retarded. Smith says that over the past 10 years he has devoted a couple of hundred hours per year to Penry’s case. Some years it consumed as little as half of his pro bono hours; other years it took all of them. Before taking on Penry’s case, Smith had handled two death penalty cases, both of which ended in executions. But Penry’s case is likely to be his last pro bono capital defense — for reasons of politics, not exhaustion. Smith says his opposition to capital punishment has weakened in recent years. “When I first took on death penalty cases, I was more ambivalent about the death penalty,” he says. “There has been a gradual change in my view over the years.” THE WITNESS’S SURPRISE In September, Chicago federal district court judge Blanche Manning vacated the death sentence of Paul Erickson, who was represented by Christina Tchen, a corporate litigation partner at the Chicago office of Skadden, Arps, Slate, Meagher & Flom. Tchen successfully argued that Erickson’s 1983 conviction on charges of raping and murdering a 15-year-old girl should be thrown out because his lawyer’s preparation was insufficient. Erickson’s trial lawyer had built his case around a single witness — a psychologist who was to examine Erickson and testify as an expert. But the lawyer failed to investigate the background of the witness, who claimed to have advanced degrees in psychology. When Erickson’s lawyer attempted to certify the witness at trial, prosecutors demonstrated that he had no formal training in psychology. Nonetheless, the judge allowed the witness to take the stand as a layperson, and as such, he testified that Erickson was a menace to society who should receive a stiff sentence. A public defender handled the first appeal of Erickson’s conviction, which failed. Skadden took on the case in 1994, at the request of the Illinois public defender’s office. Tchen worked on the case with four other lawyers from Skadden’s Chicago office. “Everyone working on this case has put about 200 hours a year into it,” says one of them, associate Eric Gorman. “It’s been a substantial amount of work.” And the work’s not necessarily over: Prosecutors say they plan to refile charges against Erickson — meaning that Tchen and her team may have another long fight ahead of them. A JUDGE’S OVERRIDE In his first pro bono death penalty defense, Cravath, Swaine & Moore commercial litigation partner Stuart Gold awaits an Alabama state court judge’s ruling in the case of his client, Louise Harris. Just getting to that point has been a struggle, punctuated by a trip to the Supreme Court. Harris was convicted in 1989 of hiring a hit man to kill her husband. A Mobile, Ala., jury sentenced her to life in prison without parole, but under a state law allowing judges to override a jury’s suggested sentence, state court judge Ferrill McRae changed the sentence to death. The sentence was appealed by the Equal Justice Initiative of Alabama, which contended that the state’s override law violated the Eighth Amendment’s ban on cruel and unusual punishment. Gold took on the case at the Equal Justice Initiative’s request in 1994, when Harris was awaiting a decision from the U.S. Supreme Court. The following year, the Court upheld the override law as constitutional. But Gold didn’t give up. His new appeal argues that Harris received inadequate counsel in her first trial, because her lawyer did not seek to introduce evidence of her stress disorders, and that prosecutors unconstitutionally used pre-emptory challenges to keep African-Americans off the jury. (Harris is black.) Gold won the new evidentiary hearing in 1999. At the hearing Gold called several experts to try to establish that Harris had posttraumatic stress disorder and battered-woman syndrome when she hired the hit man. The judge can order that Harris receive a new trial or a new sentencing hearing. Gold says that over the past six years, he has devoted hundreds of hours to the case — 600 in 1999 alone. “I knew all along that it would be a six- to eight-year course,” he says. Ten associates have worked on the case with him over the years, though not all concurrently, thanks to the spate of job-hopping by New York associates during the late ’90s. That development caught the locals off-guard. “The judge in Alabama was shocked that the people working on the case kept changing,” Gold says. Not even Alabama’s death row, it turns out, was untouched by the Greedy Associates’ glory days.

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