Facing the death penalty – Sam Blom-Cooper

Sam Blom-Cooper kindly wrote a piece for the main Lawbore site back in 2004 about his 5 months at the Louisiana Crisis Assistance Centre; fighting for those on death row. It’s such an interesting piece that I thought Future Lawyer readers would be pleased to have another chance to look at it, maybe get inspired to look at getting some legal experience further afield?

As a special treat you can also read Sam’s article:

Lethal Indifference: Tinkering with the machinery of death

This was first published in Easter 2008 issue 44 of the Middle Templar, magazine of Middle Temple. Many thanks to both Sam and the Middle Templar for permission to republish this.

Sam completed his GDL at the City Law School in 2004, his BVC at BPP and has been a member at 25 Bedford Row since 2006. Check out his profile here. Following the devastation of Katrina, many commentators mimicked each other in announcing triumphantly “U.S. underbelly exposed – poor blacks left to die by a system that does not value them”. It seems like it took a tragedy the size of Katrina to resurrect this fact for the wider audience but anyone who has walked 2 minutes outside the French Quarter, in the heart of New Orleans, knows that severe deprivation is rife and it is runs dutifully along the fault lines of socio-economic class and that of race.

In 2002 I headed for the first time to the City of the Saints fuelled by a desire to work in the field of criminal defence but more precisely to fight tooth and nail for those facing the death penalty. For years I had incoherently mumbled my disapproval of this unnecessary and vengeful penal sanction but having watched “14 days in May” – a 1987 BBC documentary – my feelings crystallised about wanting to work in a capital defence office to fight against US judicial homicide. Apart from the occasional explorations into the city’s supposed “No Go” areas, by entering the US criminal justice system I was privy to the harsh reality that
permeates the criminal justice system. Race and money decide who “gets justice” and who dies. The fact that a black-on-white homicide is 4.3 times more likely to return a death sentence than for a white-on-black homicide should have made that plainly obvious to me, but it wasn’t until I witnessed the effects up close that it really sank in.

The Louisiana Crisis Assistance Centre (LCAC – now sadly inundated with Mississippi sludge) became my home for five months. Alongside a hotchpotch of interns from Australia and the U.S., I began my office life with all-night marathon photocopying and brief preparation sessions – whatever needed to be done to meet desperate filing deadlines or for our day in court. Even heading to bed at 5am, we knew that many of the staff attorneys – inspirational and committed Ivy League lawyers – would still be sitting at their computers two floors above probing for new or stronger innovative legal arguments to chip away at the US death penalty bedrock but more urgently save their clients’ lives.

With experience, but mainly due to a lack of resources, I began to investigate the cases I was working on. It was in this capacity that I had the most fascinating, educational, distressing but yet ultimately inspiring experiences. While office administration remained a requisite task for all interns, the opportunity to hit the back roads of the Mississippi Delta to visit my clients and their families invariably poor – was what I relished most. The generosity and gratitude I received is unforgettable.

Making a case for life – leg work and its legal impact

In many capital cases, defence teams channel much of their energies into preparing for sentencing, in light of US constitutional law that dictates that only the jury may be the decision maker as to whether a death sentence is imposed or not . This involves exhaustive investigation of all facets of a client’s life that can be presented to jury to make a case for choosing life. The sentencing phase of a death penalty trial is the equivalent of a plea-in-mitigation-on-kryptonite. By presenting the life story of our clients, we begin to humanise them in contrast to the way that prosecutors dehumanise them to persuade a jury to kill.

In-depth investigation is proven to be highly effective in winning a life-sentence. And therein lays the rub of death penalty defence work. Race and wealth are deciding who lives and who dies. Those who can afford high quality representation or are lucky to be picked up by the few quality non-profit law offices, rarely find themselves on death row. Indeed, the mantra “capital punishment is a punishment for people without capital” is reality. The overwhelming majority of those charged with a capital offence have no choice
but to accept the local court appointed attorney, who may not even have any meaningful experience of trying capital cases due to his or her civil caseload, and would generally prefer not to be taking the case on. Here we glimpse the initial stages of the lethal indifference to human life, and more specifically to the lives of racial minorities who tend to be those with no money to defend themselves.

Texas – The Buckle in the Death penalty belt

While working in Louisiana it was hard to ignore news of the almost weekly executions that were taking place in neighbouring Texas. In great part to the work of LCAC, there had not been an execution in Louisiana for almost two years and the death row population had stabilized at around 95 inmates. Texas, by contrast, has 412 men and women on the row and has executed 349 people since the reintroduction of the death penalty in 1976. The contrast was stark. Some US abolitionists believe Texas is too far ‘gone’ and that litigator energies are better spent elsewhere but when the opportunity presented itself to work with
Mexican nationals facing the death penalty in Texas, all I had to do was convince US immigration that they should let me back in to the country.

I took up the post of investigator at the Gulf Region Advocacy Center in Houston, Texas and spent a year working under the umbrella organisation of MCLAP (Mexican Capital Legal Appeals Project). The Mexican government has a stated opposition to the death penalty and due to certain infamous cases involving Mexican nationals , set up MCLAP in order to provide extra specialist assistance to local defence attorneys representing Mexicans. It was in this capacity that I met Angela Camacho.

Angela entered the US by night in 1990 along with 7 family members, just 8 individuals of the 9 million estimated illegal immigrants currently residing in the U.S. Despite extreme poverty and limited access to support networks she fought hard to overcome the consequences of her learning disabilities and bouts of depression to become an active member of her community. In 2003, at the age of 21, she and her husband were arrested suspected of killing of their 3 young children. In a case that rocked the local border community town of Brownsville, Angela faced charges of capital murder.

I spent the next 3 months with members of the Mexican consulate working night and day to assist the local attorneys fighting for Angela’s life. Employing healthy doses of charm and trading on my quaint English accent to expedite records requests we began to plough through her school records and finally we found our life line.

Under the 2002 landmark decision of Atkins v. Virginia the US Supreme Court built on its 8th Amendment jurisprudence by determining that the execution of the “mentally retarded” (mentally disabled) violated the constitutional provision against the imposition of “cruel and unusual punishment” under the “evolving standards of decency” interpretative doctrine.

Proving that an individual is mentally retarded is not a precise science particularly as it attempts to measure a level of functioning. The widely accepted three-part test as drawn up by the American Association on Mental Retardation (AAMR), and alluded to in Atkins, involves demonstrating that the individual has:

a) an IQ of less than 70;
b) onset of this low level functioning before age 18 and;
c) “deficits in adaptive behaviour”.

Uncertainty permeates the definition but much turns on substantiating this third limb. To build this aspect of the claim I relied heavily on investigative skills to speak with family members, neighbours, school friends, teachers, educational psychologists and anyone in the community who could provide information to reinforce our claim. The picture that emerged of Angela’s life was distressing. There was clear evidence indicating ‘deficits in adaptive behaviour’ but in addition years of physical, verbal and sexual abuse and severe deprivations were documented. This, coupled with the psychological difficulties that permeated all aspects of her life, had left Angela exceptionally vulnerable in life.

Indeed the US Supreme Court in Atkins had not only highlighted the diminished moral culpability of those with such low levels of intellectual functioning, but also noted the dangers faced by such individuals, particularly in regard to the giving of false confessions and their heightened vulnerability and suggestibility to other parties (particularly codefendants). The justices recognised the need for a constitutional protection.

Due in no small part to the pressure brought to bear on the local District Attorney by MCLAP; Angela was offered a plea bargain of a life sentence. She will most probably spend the rest of her life in the State prison, but the State of Texas cannot execute her. A lesson quickly learnt in US criminal justice is that all victories are relative, and tend to feel hollow.

Although I no longer work in the US, I retain a keen interest in death penalty issues and remain involved with the charity Reprieve. It was through their internship programme that I was given my first taste of capital defence work. It is something that has undoubtedly changed my life and has certainly influenced me in deciding to train as a criminal barrister. For many, motivation to do this work comes from a desire to oppose this legal barbarism and fight state killing but there is no denying that the experiences encountered while working in a death penalty office provide diverse opportunities that can help to develop unique skills for a career in the law.

Useful links

Reprieve
GRACE – Gulf Region Advocacy Centre
The Justice Center
Death Penalty Information Center
www.prodeathpenalty.com

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