Lives depend on the quality of their work.
But for the small group of lawyers who take on the burdens of defending inmates on the cusp of execution in Missouri, the sheer volume of cases is overwhelming their ability to do that work.
That’s the message four law professors and lawyers delivered to the Missouri Supreme Court this week as they called for execution procedure changes that would give lawyers more time for each client.
“These amendments are necessary because the capital defense bar is in crisis because of its recent workload,” the group wrote.
Since November 2013, Missouri has executed 13 men. A handful of lawyers who specialize in capital litigation have represented most of them.
They also represent most of Missouri’s other defendants with a pending execution date or who soon are expected to see one set.
The state’s fast execution pace — Missouri tied Texas for most in the country last year with 10 — has left those lawyers struggling to meet their legal obligations to multiple clients at the same time, according to the letter by members of an American Bar Association death penalty assessment team that recently studied Missouri’s execution system.
“The legal proceedings in death penalty cases are notoriously lengthy and complex,” they wrote. “Establishing a detailed understanding of those proceedings is a time consuming task and a basic prerequisite to competent performance.”
In addition, the cases take an intense emotional toll on attorneys who get to know the clients intimately before watching them die, the letter said.
“No matter how professional the relationship between a death-sentenced client and his counsel, having a client executed is a uniquely taxing professional experience,” the letter stated.
One attorney has represented five of the last nine men executed and has two other clients with an “imminent risk of execution,” the letter noted.
Missouri’s next execution is scheduled for March 17. The attorney representing that man, Cecil Clayton, had a client who was executed in November and represents two other men likely to see execution dates set soon.
The four members of the assessment team who sent the letter to the Supreme Court — University of Missouri law professor Paul Litton, St. Louis University law professor Stephen Thaman, retired Missouri Court of Appeals Judge Hal Lowenstein and Douglas Copeland, a partner in a St. Louis law firm — recommended three amendments to the state’s rules.
The first would limit any one lawyer from representing a client who has an execution date set within six months of any of the lawyer’s other clients.
Second, they also ask that a minimum notice of six months be given before an execution can be carried out.
The third proposal would allow lawyers to prioritize caseloads to concentrate on cases with pending execution dates while being granted more time to deal with other clients’ cases.
“These are common-sense solutions to a serious problem affecting virtually every scheduled execution,” according to the letter.
The problems have mounted only recently in Missouri, where the lawyers pointed out that only two executions took place in the seven years from 2006 through 2012. But this has been a long-term issue in other death penalty states.
“For decades it has been widely recognized … that unreasonable workloads among capital litigators can severely challenge the effectiveness of their representation,” said national death penalty expert Deborah Denno, a professor at the Fordham University School of Law.
Though it will be up to the Missouri Supreme Court to adopt or reject the rule changes, the court has shown some flexibility in the past.
Last July, it changed the rules to limit executions to no more than one per month.
And last August, the court withdrew an execution warrant it had issued the previous month after the inmates’ attorneys said they wouldn’t have enough time to do everything required in the case while balancing work they had in other pending cases.
They were given additional months before that man’s execution was carried out in November.
Officials with the Missouri attorney general’s office said Tuesday that they had not seen a copy of the proposals and could not comment.
Jennifer Herndon, a St. Louis-area lawyer who has represented several death row inmates, said the proposals are all good ideas that are badly needed.
“People don’t understand the pressure, particularly in the last 30 to 45 days before an execution,” she said. “If you don’t work on it 24 hours a day, you’re thinking about it 24 hours a day.”
Facing that same kind of pressure month after month makes it virtually impossible to operate at 100 percent “no matter how hard you try,” she said.
“Each one becomes harder to get through than the one before,” Herndon said.
To reach Tony Rizzo, call 816-234-4435 or send email to trizzo@kcstar.com.

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