(l-r) Catherine Creely, Mark MacDougall, and Karen Williams, of Akin Gump Strauss Hauer and Feld. July 9, 2014. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL. (Diego M. Radzinschi)
In 2001 Bill Nettles was a 40-year-old ex-public defender in Columbia, S.C., facing the daunting task of defending Bobby Lee Holmes on charges of raping and murdering an elderly retired teacher. One day he took a call from Mark MacDougall, a partner in the Washington, D.C., office of Akin Gump Strauss Hauer & Feld who was volunteering to help. As Nettles tells it, MacDougall reached out after a long talk with a friend who happened to be a priest. The subject essentially boiled down to: What do I do with the rest of my life? The priest didn’t have a complete answer, but suggested that one way to get beyond the transitory pleasures afforded a successful white-collar defense lawyer was to take on some death penalty work. A mutual friend referred MacDougall to Nettles, and a formidable team was born.
Together they tore into the forensic evidence that had incriminated Holmes: a palm print and some telltale clothing fibers. They also found potentially exculpatory evidence pointing to another possible killer. But the trial judge wouldn’t let the jury hear that story, and Holmes was convicted and sentenced to death. Eventually the lawyers appealed to the U.S. Supreme Court, which reversed unanimously. Holmes later pleaded guilty in exchange for a life sentence. And MacDougall had found his calling. “Trial lawyers talk about who they’d want in a foxhole with them,” says Nettles, who is now the U.S. attorney for South Carolina. “I’d want Mark. He’s a good, thorough, tenacious lawyer. It’s just a fact.”
Once again this fall, as he has most every year since 2001, MacDougall will head to South Carolina, trying to save a life. MacDougall and a small band of associates will be preparing for his sixth capital murder trial, this one involving the shooting of a police officer.
Over the past decade, MacDougall has become one of the paladins of big-firm pro bono service. “At a time when pressures on law firm lawyers have created an environment where firms seem to be looking for cases with, well, tighter parameters, Mark’s commitment to doing capital trial work is very rare,” says Robin Maher, director of the American Bar Association’s Death Penalty Representation Project. For that work, next month the ABA project will award MacDougall its “Guiding Hand of Counsel” award. That honor takes its name from a phrase in a dissent written by Justice John Paul Stevens that suggested what fundamental fairness required for an indigent death row defendant.
MacDougall’s cocounsel say he’s particularly skilled at tackling forensic witnesses. “He’s just dogged in learning the science,” says Bill McGuire, the chief attorney at South Carolina’s Capital Trial Division. “When he cross-examines, he operates as another expert in the courtroom.”
MacDougall is a little put off by all the fuss his work has attracted. He’s no stranger to publicity. He managed the sale of Ted Forstmann’s high-profile IMG sports agency last year. And a half-dozen years ago, this magazine called him “The Cleaner” for his work on “reputational recovery” matters—chasing down and challenging false accusations for clients. But the death penalty work seems more compelling. Why does he do it? “I have no lofty reasons,” he says. “You are in a courtroom in a mostly hostile community—sitting next to a defendant accused of a horrible crime. The government wants to kill your client. … The client and his family are poor and terrified. You are all that they’ve got, and everything is on the line. For a trial lawyer that’s what it’s all about.”
For the associates who work on these cases—arguing motions, interviewing witnesses, sitting in on strategy meetings—the experience can be priceless. They have played for mortal stakes and come away, they say, better for the experience. These cases, says Karen Williams, an Akin associate, teach “the importance of being vigilant.” And Catherine Creely, an Akin counsel, went back to her home county on a case and was stunned to see the different lives across town: “I knew there was a spectrum of society. But before I started this work I never saw the impact of what socioeconomic disparity can do to a person’s life. It was eye-opening, startling.”
South Carolina can use a few more volunteers.