Book Review – “Quest for Justice: Defending the Damned” by Richard S. Jaffe March 5, 2012

“Quest for Justice” by Richard S. Jaffe is certain to join the ranks of recent criminal defense nonfiction classics such as “Dead Man Walking” by Sister Helen Prejean; “An Innocent Man” by John Grisham; and “Actual Innocence” by Peter Neufeld, Barry Scheck, and Jim Dwyer. “Quest for Justice” belongs in this company because it is every bit as well-written and powerful as these three books, and because Jaffe is a giant in the field of death penalty litigation.

“Quest for Justice” describes some of the death penalty cases that Jaffe has handled in the state of Alabama. Jaffe has worked on more than sixty death penalty cases, in addition to countless other major felonies. Two of his clients were profiled in the Broadway play, “The Exonerated.” and Jaffe also represented Eric Rudolph, who was charged with several abortion clinic bombings in the South, as well as with the deaths in the Olympic Park bombings during the 1996 Olympic games in Atlanta.

Unlike many books by trial lawyers, “Quest for Justice” is not mostly about the lawyer; rather, it is about the clients — Jaffe’s ego is absent. His book gives us only the basic biographical details and quickly launches into the stories of his death penalty cases.

Jaffe is a warrior without being self-righteous. He is against the death penalty, not only because he believes that it is immoral, but because it does not work — it never has and never will deter murder — and Jaffe makes a cogent case for this view.

If, like me, you read many books about our criminal justice system, then, after a time, you think you’ve read it all — stories about jailhouse snitches; faulty eyewitness identifications; prosecutors who withhold evidence; defense attorneys who are ineffective because they are inexperienced, unmotivated, or overwhelmed; a death penalty lottery in which a disproportionately high number of African-Americans lose; mentally ill defendants who are mistreated or undertreated by the system — the list goes on. What makes “Quest for Justice” stand out, and be more than a catalogue of the deficiencies in the criminal justice system or a collection of war stories, is that it provides a good deal of explanation and analysis of how the criminal justice system works — or doesn’t work. And Jaffe’s explanations and analyses are neither tedious nor patronizing.

Moreover, the characters in “Quest for Justice” come alive. For me, the most colorful — and frightening — character in the book is Alabama Judge Jack Montgomery. He is an old-school judge who figured in many of Jaffe’s cases. Judge Montgomery demeaned both defendants and their attorneys, and he made no effort to hide his prejudices. As the years went by, it became apparent to the courthouse regulars that he was not merely offensive, but unbalanced and crooked. The judge even pulled a gun in open court on Jaffe, and had to be wrestled to the ground by his staff. He was finally convicted of soliciting and taking bribes.

If you do not have time to read the entire book (although it is well-written, it is not a light read), read the chapter on Jaffe’s representation of Eric Rudolph. There you get a glimpse of Jaffe’s commitment to his client as well as insights into the mind and motivation of someone accused of the most hideous of crimes. Jaffe spent countless hours talking with Rudolph and learning of such things as the death of Rudolph’s father, the suicide of his former girlfriend, his experiences in the Army, and his mother’s religious influence on him. Jaffe’s diligence in doing this research was vital to representing Rudolph effectively. Ultimately, Rudolph pled guilty and was sentenced to life in prison without the possibility of parole.

Criminal defense lawyers are constantly asked, “How can you defend those people?” Jaffe’s comment about Eric Rudloph’s case provides the perfect answer:
“Eric Rudolph embodied one of the reasons why I do what I do. Representing the most unpopular and despised of our society is, in my opinion, the hallmark of a true criminal defense lawyer. John Adams did this when he defended the British soldiers who shot their weapons openly into the crowd during the Boston Massacre. When advocating for someone this unpopular we are also representing our profession, which is committed to safeguarding the rights of the least among us and the constitutional protections that everyone has, no matter what he is charged with or what his beliefs are.”

“Quest for Justice” can be read and enjoyed by lawyers and non-lawyers alike. But, more importantly, it should be read by everyone who cares about the criminal justice system.

Note: A version of this review will appear in the May 2012 edition of The Federal Lawyer.

Second Note: Mr. Jaffe and I both serve on the board of the National Association of Criminal Defense Lawyers (NACDL).

Illinois? Ground Zero for Change in Criminal Justice? January 23, 2011

During the past few weeks, the Great State of Illinois has been Ground Zero for positive developments on the criminal justice front.

Story Number One: both the Illionois House and Senate passed bills to abolish the death penalty. The legislation is waiting on the desk of Governor Pat Quinn to sign. Is he likely to do so? Perhaps. He doesn’t face re-election for another three years. Whatever he does, it will surely be campaign fodder — especially for supporters of the death penalty.

But even if Governor Quinn doesn’t sign the bill into law, the fact that both chambers of the Illinois Legislature passed bills is huge. And the issue won’t die easily. Afterall, Chicago is facing a contentious mayoral race, and any discussion of public safety will likely lead to the death penalty. Meanwhile, other states will become emboldened by Illinois’ action.

Illinois has had a tortured history with the death penalty. “Torture” is an unfortunate word in this context, but I think it accurately captures the climate. In 2005, after a host of wrongful convictions were exposed, then Governor George Ryan placed a moratorium on the death penalty and commuted 156 death sentences. Even after the moratorium expired, juries have imposed the death penalty in fewer cases. Why, if the death penalty is more honored in the breach than in the observance, can’t it just stay on the books? You know, for that crime which is horrible beyond all telling?

Because there is no reason to keep it there! Thirty years of history across this country show that the stated goal of deterrence has not been achieved. And if punishment — extreme punishment is the goal — life in prison without the possibility of parole is far more severe. But perhaps the most compelling argument in these troubled economic times is that the death penalty is just too expensive. Already we have seen small jurisdictions which will not even ask for the death penalty because they cannot sustain a trial. And the years of appeals which follow add even more expense. The cynical will just say, “Well, cut off the appeals, and get on with the execution.” That commitment to speed is fine when turning out fast food or ringing up items at WalMart, but it isn’t appropriate in the context of taking eternal, irreversible actions regarding life, or death.

Story Number Two from Illionois: ex-police officer Jon Burge is sentenced to four and a half years in prison. Mr. Burge was famous, or infamous, in Cook County for extracting false confessions from people. Eventually, dozens of wrongful convictions due to his actions were exposed. Interestingly, he wasn’t found guilty and sentenced because of that type of misconduct; rather, he was found guilty for lying during the course of a civil trial. One of the nasty side effects of Mr. Burge’s story is that it made police look bad. But his sentence should be a wake-up call to any police officers who are tempted to cross the line or believe the ends justify the means.

And Story Number Three: The sole American manufacturer of sodium thiopental, a drug used in lethal injections, is going to stop production. The manufacturer, Hospira, Inc., is based in Lake Forest. The impact is that this is probably going to force some states to delay executions and force them to adopt new protocols for lethal injections. This is a lengthy process.

Maybe I’m too suspicious, but I don’t think we know the full story here. As I previously noted, Hospira is the sole American manufacturer of sodium thiopental. That’s a huge marketing advantage. But they say they want to stop production. It’s not that there isn’t a market. Then, it gets more interesting. It says it want to switch production to Italy. But Italy won’t permit the export of the drug if it might be used for executions. And Germany has said the same thing. Keep in mind that most countries have abolished or simply don’t enforce the death penalty.

Hospira has said that it never condoned the drug’s use for lethal injections. But still, it wanted to stop production here. And then, it couldn’t guarantee to other governments that the drug wouldn’t be used for lethal injections.

I like to think that this was more than a business decision — a business decision which I don’t quite understand. I like to think that maybe there was some sort of pressure exerted against Hospira — or maybe it just wanted to take a principled stand.

Whatever the reason, you take victories where you can get them. And perhaps, during the time one or more executions are delayed while states come up with an approved protocol for administering the death penalty without sodium thiopental, some resourceful attorney will fugure out how to get a client off death row.

Illinois has been taking a second look at its criminal justice system. By doing so, it gets a second chance to make its citizens safer.

Kevin Keith: Will Ohio Execute an Innocent Man? July 24, 2010

September 15, 2010 may seen a world away. But for Kevin Keith, it’s coming all too quickly. Kevin Keith’s execution date is September 15. That is the date which the State of Ohio is scheduled to murder him.

Kevin Keith’s case should concern everyone who cares about the criminal justice system — and that includes supporters, as well as opponents of the death penalty. In regards to Kevin Keith, the State of Ohio may be perilously close to executing an innocent man.

A bit of background: In February of 1994, in Bucyrus, Ohio — a town about 65 miles north of Columbus — three people were shot and three others were wounded when a gunman entered an apartment. Kevin Keith, who was already out on bond in a drug case, was arrested. Less than four months later, he was convicted by a jury and ssentenced to death.

This case has all the hallmarks of a wrongful conviction: police midsonduct, faulty eyewitness identification, withholding of exculpatory evidence, and an alternative suspect.

At trial, a police officer testified that a survivor told his nurse that Mr. Keith was the shooter. Curiously, the prosecutor never called this witness herself to testify. However, in 2007, Mr. Keith’s lawyers learned that no one by the name of that nurse worked had ever worked for the hospital. Indeed, the lawyers secured an affidavit from the survivor’s attending nurse stating that when the patient woke up after surgery, the nurse called the police. But she didn’t ask the patient, and he never told her, who the shooter was.

When one of the survivors was shown a photo array, Mr. Keith’s picture was the only one with a facial close-up. Of course, this suggestive presentation caused the survivor to identify Mr. Keith as the shooter. Meanwhile, this same survivor had told four other people immediately after the shooting that he did not know the identity of the shooter because the shooter’s mouth and nose were covered during the attack.

Another so-called witness only caught a quick glance at the shooter as he fled. First, the witness could not identify Mr. Keith, but then only did so after Mr. Keith’s picture was shown on the news.

The police claimed that the bullet casing from the murder weapon was found at a nearby electricity plant. This, they maintained, pointed to Mr. Keith’s guilt because he had picked up his girlfriend from work there two hours after the murder. However, newly-discovered police logs show that the casing was found at a McDonald’s — over a mile from the electricity plant.

Meanwhile, two weeks before the fatal shootings, the alternative suspect had told a police informant that he had been paid $15,000 to shoot one of the people in the apartment.

There are even more red flags in this case, and you can read more about them on a website maintained by Mr. Keith’s supporters, KevinKeith.org. This site also has links to several articles written about Mr. Keith’s post-conviction efforts.

Make no mistake: the United States of America has the finest system of justice ever conceived by humankind. But the system makes mistakes. Since 1976 — the year of our bicentennial — 130 people have been released from death rows across the country on grounds of innocence. Innocence. That means they didn’t do it. Executing innocent people should offend everyone’s conscience.

There is signficiant doubt about Mr. Keith’s guilt. And if we are going to execute people — and I go on record as stating we shouldn’t — we better be darned sure that they are guilty.

In the meantime, there is still hope for Mr. Keith. He is scheduled for a clemency hearing before the Ohio Parole Board on August 11. And Governor Strickland will review that recommendation. You can write to the Parole Board, expressing your doubt about Mr. Keith’s guilt and ask it to recommend that Governor Strickland commute his death sentence. The Parole Board’s email is drc.publicinfo@odrc.state.oh.us and its fax number is (614)752-0600. Also, Amnesty International has an on-line petition.

In the case of Mr. Keith, the State of Ohio has a second chance to get it right. Let’s hope it does.