Fighting the Death Penalty

By Ken Gewertz

Gazette Staff

An outsider at Walter McMillian's murder trial would have predicted a sure win for the defense.

McMillian's lawyer produced 12 witnesses who all swore that at the time of the murder McMillian, a black man accused of killing a white, was at a fish fry given in honor of his sister, a church elder.

The prosecution's chief witness was a convicted felon who said he gave McMillian a ride in his truck, that McMillian asked him to stop at the victim's place of business, and that after committing the murder he had gotten back in the truck and continued the ride. This witness later confessed that his story was false and that he had been coerced into lying.

The jury, however, discounted the testimony of the 12 defense witnesses and accepted the prosecution's version. The jurors found McMillian guilty of murder, and the trial court condemned him to death.

Bernard Harcourt, JD '89, currently a senior fellow in the Law School's Graduate Program working on a doctorate in law and political theory, tells this story to illustrate the ugly reality that lies behind many death penalty cases. Harcourt, who spent four years litigating death penalty cases in Alabama, said that McMillian's story is typical of many he encountered.

"When you work with real cases, you realize there's a huge gap between the political rhetoric around the death penalty and what is actually going on," he said.

Harcourt has organized a conference called "Litigating Death Penalty Cases," to be held July 30 at the Law School. The conference, which is sponsored by the Northeastern University School of Law and the Graduate Program at Harvard Law School, will bring together lawyers who have had experience representing death row inmates and those who are interested in taking a death penalty case.

The aim of the conference is to share information and strategies as well as to explain the process of representing a death row inmate. The daylong training conference will be followed by a series of quarterly meetings to discuss new developments and ideas in death penalty litigation.

Harcourt hopes that the conference will help convince more Boston-area lawyers to litigate death penalty cases pro bono, a service he believes the legal profession has an obligation to provide.

"I believe that lawyers have a professional obligation to make sure these cases are reviewed adequately. After all, sentencing someone to death is no light matter," Harcourt said.

During his years with the Alabama Capital Representation Resource Center, now the Alabama Equal Justice Initiative, located in Montgomery, Harcourt discovered that defendants frequently are sentenced to death lightly.

Justice is swift, often inappropriately so. According to Harcourt, the average length of a death penalty case in Alabama is three to four days, from jury selection to sentencing, and often there is no one to insist on the defendant's legal rights.

Much of the problem stems from the fact that Alabama has no public defender system, Harcourt said. Instead, the court appoints local attorneys, many of whom have no criminal law experience, to represent indigent defendants. Compensation for these lawyers is capped at $2,000 for out-of-court time. Considering that the average case requires about 500 hours of pre-trial preparation, this works out to less than $4 per hour.

Harcourt calls this situation "a real crisis" that contributes to cynical and sometimes blatantly illegal behavior on the part of defense lawyers. In one case he worked on, a lawyer was given the defendant's uncashed paycheck as a piece of exonerating evidence. Instead of entering it in the court, he simply cashed the check and pocketed the money.

Other travesties of justice occur on a regular basis, Harcourt said. Prosecutors often succeed in keeping blacks off juries in cases where the defendant is black, and individuals who are clearly not fit to stand trial are frequently hurried through the system without hindrance.

Harcourt described one case in which a severely psychotic black man who had been institutionalized since the age of 6 was charged with murder. The man appeared in court dressed in a bed sheet and demanded that the bodies of the victims be brought before him so that God could bring them back to life. In spite of this obviously bizarre behavior, the judge granted the man's request to act as his own defense lawyer.

But with so much wrong with the state's legal system, there is plenty of opportunity for setting things right. Working with other members of the Alabama Equal Justice Initiative, Harcourt has helped many victims of injustice claim their legal rights, including Walter McMillian, who was finally able to prove his innocence after spending six years on death row.

Although he no longer resides in Montgomery, Harcourt continues to represent death penalty cases and only last month succeeded in winning a retrial for Phillip Wayne Tomlin, convicted and sentenced to death three times for a murder he was accused of committing in 1977.

Harcourt won a retrial for Tomlin on the grounds that one of the jurors had not answered questions fully and honestly during the selection process. In a newspaper interview Harcourt maintained
that despite the fact that the Tomlin case has dragged on for nearly 20 years (the defendant has been on death row the entire time), most of that delay has been due to "prosecutorial and juror misconduct," and that after all this time Tomlin has still not received a fair trial.

Harcourt said that he was not adamantly opposed to the death penalty when he began this work, but his experience in the courtroom has convinced him that "the death penalty is unacceptable in practice because there is simply too much room for error."

The need to correct these errors is what keeps Harcourt going and now spurs him to recruit others to help with what is literally a life and death effort. This effort, he points out, has become especially crucial since the 104th Congress withdrew all federal funding from the legal resource centers that have helped the poor to appeal death sentence cases.

When people ask him why he continues to represent death row inmates, Harcourt often repeats the answer he gave to an Alabama judge who asked him the same question.

"I told him that if I didn't represent this client, then there wouldn't be anyone else who would take his case. I think the judge respected that."

The conference on "Litigating Death Penalty Cases" will take place Tuesday, July 30, from 9 a.m. to 5:30 p.m. in Austin Hall East. The conference is free, but attorneys who wish to participate should register in advance. For further information, please contact Bernard Harcourt at 496-5808 or by e-mail at harcourt@law.harvard.edu.