The Last Lawyer

The Fight to Save Death Row Inmates

By John Temple

[Available Here]

A few weeks ago, anti-death penalty activists found a powerful argument for their cause: Cameron Todd Willingham.

Willingham is the Texas man who was executed in 2004 for arson murders that, as it turns out, he may not have committed. The case is making headlines again after a New Yorker piece made a compelling argument that the case was bungled and Willingham was innocent.

Since 1973, 138 people have been released from death row with evidence of innocence, according to the Death Penalty Information Center. Abolitionists have used those numbers to reason that if that many people have been wrongly sentenced to death, some percentage of the 1,176 inmates executed since 1979 must have been innocent.

But until Willingham, activists lacked strong evidence of innocence in a prisoner who had actually been executed.

The abolitionist movement has used various arguments over the years. The contention that the death penalty is morally wrong seems to resonate with only a certain percentage of the population. The argument that death sentences are more expensive than life in prison and do little to deter murders has not led to a widespread shift in public opinion either.

Innocence, on the other hand, is a powerful, graspable concept. Innocent until proven guilty, after all, is a core tenet of our justice system, something most of us learn early on from our parents or in civics class.

But does the concept resonate when turned on its head - guilty and then proven innocent? What about someone who is found guilty and then returned to that uncertain state of limbo, somewhere in between innocence and guilt, called exoneration? Does exoneration always equate to innocence?

A case in point provides the narrative backbone of my new book, The Last Lawyer. The case began in 1987, when an elderly bootlegger was shot to death in Duplin County, a poor rural region in eastern North Carolina. Nearly four years later, the ex-girlfriend of a North Carolina farmhand named Bo Jones told police that he was the killer. On her testimony alone, Jones was sentenced to death in 1993.

In 1997, Jones came within a few days of being executed before attorneys from the Center for Death Penalty Litigation (CDPL) swooped in and obtained a stay of execution. The CDPL is a nonprofit firm of attorneys in Durham, NC, who specialize in representing death row inmates. The CDPL team scoured the North Carolina countryside for evidence that might undo the jury's verdict. The lead investigator interviewed family members who painted a vivid picture of Jones's questionable mental capacity. They met Jones's previous lawyers and discovered shoddy trial preparation and a conflict of interest.

But their biggest break and best argument for innocence came when they interviewed the prosecution's star witness - Jones's lyrically named ex-girlfriend, Lovely Lorden - and poked holes in her account of the shooting. After many cases that had ended in heartbreak and disappointment, the CDPL team began to believe they might be able to save Bo Jones. To write The Last Lawyer, I shadowed the attorneys on the case for four years as they investigated and litigated the Jones case.

The CDPL attorneys built a strong case that Jones should never have been convicted, much less sentenced to death. But they came up with no evidence that positively excluded Jones from having committed the crime. Of course it's usually harder (as well as constitutionally irrelevant) to establish innocence than guilt. It can occur, as in the case of Alan Gell, a secondary case chronicled in my book. Gell was freed from North Carolina's death row after it was determined that the prosecution had withheld evidence that showed Gell was out of state during the time the crime was committed.

As a result of this difficulty in proving innocence, cases on the Death Penalty Information Center's innocence list tend to resemble Jones's more than Gell's. The DPIC Web site lists these requirements for inclusion on the list in bold print:

Defendants must have been convicted, sentenced to death and subsequently either-
a) their conviction was overturned AND
i) they were acquitted at re-trial or
ii) all charges were dropped
b) they were given an absolute pardon by the governor based on new evidence of innocence.

Of course, acquittals and pardons and dropped charges do not constitute proof that the person did not do the crime. But at the very least, those actions should return that person to that privileged state of innocence, even after being proven guilty.