ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Sunday, April 20, 1997 TAG: 9704220117
SECTION: HORIZON PAGE: 1 EDITION: METRO
DATELINE: RICHMOND
SOURCE: GREG WEATHERFORD LANDMARK NEWS SERVICE
Today, Virginia's death row holds 48 men. Their fates rest largely on the efforts of a few state employees who work out of the attorney general's office. Their specialty: the death penalty. Officially, the group - formed in September 1995 - is the Capital Litigation Unit. Some people call it the Death Squad.
By any measure, this team is successful. By some measures, it is the best in the country at what it does.
Though Virginia is No. 2 - behind Texas - in the number of executions since the Supreme Court reinstated the death penalty in 1976, the commonwealth by far is the most efficient state when it comes to actually killing the people its courts send to death row.
In Texas, 400 people are scheduled for execution. In the 21 years since the reinstatement of the death penalty, 155 others - or 27 percent of the total - have been executed. In Virginia, by contrast, though a relatively few 48 people remain on death row, 39 others - 44 percent - have been executed so far.
The capital unit's lawyers work doggedly to speed the convicted to their deaths. They have been successful: In the 13 years before the capital unit came into being, Virginia executed 26 people. In the 18 months the unit has worked exclusively on death-penalty cases, the state has put to death 12 people.
That number is a source of pride. "In the last year and a half," notes Donald Curry, the senior assistant attorney general who leads the group, "we've done almost 50 percent of what we took 13 years to do before."
Their effectiveness, unit members say, is part skill and partly because of changes in federal and state law.
They also, says Katherine Baldwin, have right on their side. It was Baldwin who opposed Virginia Beach killer Joseph O'Dell's attorneys before the U.S. Supreme Court in March. "It's fascinating and rewarding to be always on the good side, always on the right side," she says.
"It's a privilege to be able to do this. There's just no doubt about the justice involved. The jury has already decided what the truth is. The doubts are resolved. We're working in a system based on hundreds of eons of justice. How could that be wrong?"
But some of the attorneys who have fought against Baldwin and her colleagues say much is wrong with the system and with the capital unit itself.
These lawyers accuse the unit's lawyers of seeking executions with a bloodthirst that tramples justice.
"Obviously, they have a legitimate job to do, and they do their job very well," says William Geimer, a law professor at Washington and Lee University who directs the Virginia Capital Case Clearing House, an anti-death penalty resource center. "They're good at doing their job. But people ought to know it has little or nothing to do with justice."
"They're overly zealous, and that interferes with their advocacy judgments," says Charlottesville lawyer Steven Rosenfield, who has worked with several death-row inmates. "I don't understand their crazed aggressiveness. I don't mean to equate them to totalitarian governments, but there is a certain parallel. There's no way to really soften this - their exuberance to kill people can only be equated to totalitarian governments.
"Even fascist countries have courts and prosecutors. They all claim that they're just seeking justice."
The state's lawyers, of course, bristle at comments like these. "That is so bogus," says Robert H. Anderson III. "I don't begrudge someone's right to be opposed to the death penalty. Reasonable minds can differ. But I want the same consideration extended to me, rather than depicting me as some kind of midlevel Nazi bureaucrat in the killing machine."
Anderson, 45, has worked in the attorney general's office for 20 years, almost his entire legal career. He's a big fan of Duke University, his alma mater, and of the Who and the Beatles. He's divorced, and the devoted father of a 16-year-old daughter. Even people who dislike the capital unit concede that Anderson is a moderate member.
Still, Anderson has little time for those who impugn his motives. "The ultimate wrong would be to have an innocent person executed. But the people in the cases I have handled who have been executed did. Period. You're ultimately comfortable with what you're doing or you're not. I am."
If ever he needed justification for the work he does, Anderson says, he needs only to look at the trail of slaughter the condemned drag behind them.
He tells of one defendant who raped a friend's wife after finding her home alone. Then he drove her to a hidden spot off the highway and hacked her 184 times with a machete. By the end, she begged to die. She did.
"It took me weeks to get the strength to go and look at the photographs," Anderson recalls. "I was just numb afterwards."
Anderson and his colleagues work in a dim corner of the justice system. They get little publicity, though they're regularly in contact with prisoners and charismatic attorneys who often court the press.
Their work puts them in the intersection of justice and politics, life and death, even good and evil. And the lawyers fighting for these executions evince no doubts about which side they are on.
"I think of them as bad people," says chief Don Curry, when he's asked about his view of death-row inmates. "I think of them as people who have done unimaginable things.... I generally don't buy into the principle that because you were brought up in a less-than-great home and didn't go to college and had a mother who was an alcoholic - I don't think that means you can put a gun to someone's head and shoot them."
Laboring in the obscure compartment of law that handles capital appeals and habeas-corpus pleadings, the unit's members admit their specialty is arcane. It's not glamorous work like that of trial lawyers who stir juries with speeches and can come out of a high-profile trial with a book or TV movie deal.
Most of the unit's work isn't in court. It's primarily a writing-and-research job - finding legal reasons to deny prisoners' petitions and appeals.
While their day-to-day work appears mundane, the lawyers acknowledge that they can rouse virulent dislike among the opposition.
"You have to be somebody who doesn't have a thin skin," Curry says. "During the course of litigation, you're always going to be painted as the villain -- someone who relies on procedural tricks and technicalities rather than the truth."
"People talk about us relying on technicalities," Anderson says. "But these are important principles here."
Take, for example, the case of Joseph Roger O'Dell III. In the glare of international attention, Baldwin argued the O'Dell case before the U.S. Supreme Court last month. O'Dell was sentenced to die for the brutal murder of a Virginia Beach woman. The Supreme Court halted O'Dell's scheduled Dec. 18 execution, saying it wanted to examine one of the legal issues raised by his attorneys.
Innocence is not the issue with O'Dell. Instead, the justices are reviewing whether a court decision made after his conviction - a decision that would have allowed O'Dell to tell the jury he would never be eligible for parole - should be retroactively applied to his case. If so, O'Dell's case could be sent back for resentencing.
True, that's a technicality, Anderson says. But it also addresses the rule of law in society, and whether past convictions can be overturned because of later decisions.
Other "technicalities," though, raise stronger criticisms. In O'Dell's case, says W&L's Geimer, an earlier appeal by the prisoner was called simply that - an "appeal." Technically, however, it should have been called a "petition for appeal." The attorney general's office said that title made the petition illegal. The 4th U.S. Circuit Court of Appeals agreed, denying the petition.
Another condemned man, Coleman Wayne Gray, had his petition for appeal to the Virginia Supreme Court denied because he filed it one day late. The U.S. Supreme Court agreed with the state. Gray was executed.
"That's the daily bread of the attorney general's office," Geimer say. "It's death by technicality."
The capital unit's lawyers endlessly labor over briefs and arguments, tracking the cases doggedly through a labyrinthine courts system. Their successes and failures depend largely on how well they do their work long before they stand before a judge.
"I like to read and I like to write," says Katherine Baldwin, a former English major. "If you can do those types of things, appellate work is perfect for you."
These state lawyers go to work only after a case is decided - after the jury finds the defendant guilty and the sentence of death is meted out.
"Once the trial is over," Curry says, "all the processes are brought by the prisoner. We're basically on defense. It's a bit unfair, in a way. The prisoner and his attorneys have months to put their cases together." In most cases, he adds, his group has 30 days to respond to the prisoner's initial petition.
It was Donald Curry who pushed hard to create the capital unit in 1995. Curry, 46, had joined the attorney general's office in 1982, after William and Mary schooling and serving as an assistant commonwealth's attorney in Danville for five years.
Five lawyers work on the team: Curry, Anderson, Baldwin, Pamela Rumpz and Robert Harris. Harris, a Lynchburg native, studied law at William and Mary and has been with the state since 1984. Curry recruited Rumpz (University of Detroit law school) after meeting her at a state death penalty conference. She came from the Arkansas attorney general's office.
Before the unit was formed, capital cases were spread out among the some 20 lawyers who worked criminal cases.
"One thing was becoming obvious," Curry recalls. "We were being outgunned and outmanned as far as expertise goes."
A reason for that, Curry says, was the establishment in the early 1990s of state and federally funded resource centers for the attorneys of death-row prisoners. The U.S. Congress set up the centers because habeas-corpus law is so complex that the courts had trouble finding experienced lawyers to represent prisoners. The centers became a training ground for death-penalty lawyers.
The capital resource centers' mission isn't politically popular: Last year, Congress eliminated their federal funding, cutting the budget of the Virginia center by 70 percent. The Virginia General Assembly, however, chose to continue paying - $470,000 in the next fiscal year - for the Richmond-based resource center. The state's unit gets $400,000 for its annual budget.
While center lawyers' job is to fight or delay the death penalty, the unit's mission is to speed along the execution.
"Experience has shown," Curry says, "that these cases, when left to their own devices, sit rather than move. They're difficult - sometimes nasty. ... These don't serve their sentence, which is death, until the case is closed."
One task the group's lawyers helped achieve was a revamping of the state and federal habeas-corpus laws.
Katherine Baldwin, 46, joined the attorney general's office in 1984 as a legal intern. She had grown up in Richmond, attending the prestigious private St. Catherine's School, and headed to Mary Baldwin College. She lasted one year before dropping out. Eventually, she returned to college, earning an English degree at Virginia Commonwealth University and then studying law at the University of Richmond.
During the Baliles administration, Baldwin volunteered with the attorney general's office. The divorced mother of two, now an assistant attorney general, has been there ever since, developing a reputation as a hard-nosed lawyer who pushes hard for a win.
Like Curry, Baldwin had long agitated for the creation of the capital unit. Too many death-penalty cases were taking too long, she recalls, because the state attorneys handling them were being pulled in too many directions.
"We had ideas about changing the legislation," Baldwin recalls. "We would sit around and talk about what changes in the legislation were needed."
Thanks to friendly ears in the General Assembly, the governor's office and in Congress, the laws did change.
Those changes, which took effect last year, were designed to speed the process by trimming the number of steps and limiting the time inmates are allowed to appeal.
Now, instead of taking a decade or longer, most capital cases should take only a few years to, as Baldwin says, "come to conclusion."
Anti-death-penalty advocates and attorneys for death-row prisoners say, however, that the shortened process gives prisoners less time to find information that might exonerate them.
"The fact is," says Henry Heller, a 41-year-old Charlottesville carpenter who heads Virginians for Alternatives to the Death Penalty, "that many of the guys who end up on death row end up there because they have attorneys who don't know what they're doing."
By appointing skillful lawyers who have time to essentially reinvestigate the original case, Heller argues, the chance of executing an innocent man is minimized. Before the law changed, there was no set limit on how long that investigation process could take. Now, the limit essentially is six months.
"There is a potential" in the changes in the rules, says Richmond lawyer Gerald Zerkin, one of the country's most experienced lawyers in death-penalty cases, "for the evisceration of a very old and cherished protection for citizens - not just for people on death row, but for all citizens. That never would have happened but for the clamor to execute people more quickly."
Zerkin says there may be other problems with the law: Under interpretations of the federal law given by some prosecutors, a prisoner's habeas-corpus petition cannot be granted by any federal courts unless the U.S. Supreme Court has ruled on the specific issue of law in question.
By that interpretation, Zerkin continues, even if all 12 federal courts of appeals agree that the request should be granted, it cannot be without invoking a Supreme Court decision on the matter.
The state's lawyers think that changes in the law improve justice. Executions should come speedily, they say, noting that juries heard the evidence and decided guilt.
"The idea is, `Poor, poor pitiful me,'" says Curry, sarcastically. "It's this poor, misunderstood guy on death row who's never had a fair shake from the state."
Delaying an execution means an excruciating wait for victims' families.
"Would I cut it shorter?" Baldwin asks rhetorically, a steely passion cutting through her earlier pleasantness.
"Absolutely. A lot shorter."
LENGTH: Long : 259 lines ILLUSTRATION: PHOTO: STEPHEN SALPUKAS LANDMARK NEWS SERVICE. The Capitalby CNBLitigation Unit of the Office of the Attorney General (from left)
Pamela Rumpz, Robert Harris, Katherine Baldwin, Robert Anderson and
Donald Curry. In the 13 years before the capital unit was created,
Virginia executed 26 people. In the 18 months the unit has worked
exclusively on death-penalty cases, the state has put to death 12
people. 2. Says unit lawyer Katherine Baldwin: "It's fascinating and
rewarding to be always on the good side, always on the right side."
color. 3. Joseph O'Dell's defense team meets the press after
arguments at the Supreme Court. Katherine Baldwin's team, in
contrast, left the court unnoticed and made no public statement. KEYWORDS: PROFILE