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S3E07: Summary Judgment with Don Clark RLAW'79
15 Plays3 years ago
Co-Dean Kimberly Mutcherson sits down with Don Clark RLAW'79, who discusses the case that inspired his book Summary Judgment: A Lawyer's Memoir.
You can read more about the book here.
The Power of Attorney is produced by Rutgers Law School. With two locations minutes from Philadelphia and New York City, Rutgers Law offers the prestige and reputation of a large, nationally-known university combined with a personal, small campus experience. Learn more by visiting law.rutgers.edu.
Production Manager: Margaret McCarthy
Series Producer: Nate Nakao
Editor: Nate Nakao
--- Send in a voice message: https://podcasters.spotify.com/pod/show/rutgerslaw/messageRecommended
Transcript
Introduction of Hosts and Guest
00:00:01
Speaker
My name is Kim Mutterson. I'm the co-dean of Rutgers Law School in Camden. And this is the power of attorney. I am here today with Don Clark, who is one of our most loyal alums of Rutgers Law School and who also has had an amazing and eclectic career as a lawyer. So thank you so much, Don, for taking the time to talk to me today.
00:00:28
Speaker
Kim, I appreciate the invitation. Thank you. Absolutely.
Don Clark's Career Journey
00:00:32
Speaker
So I want to start the same way that I start all of our podcasts, which is asking folks for their origin story, right? Given all the things that a person could do with his life, you decided to be a lawyer. So what is it that drew you to being a lawyer? I wanted to be a lawyer and in particular, a trial lawyer since the seventh grade.
00:00:54
Speaker
Not sure exactly where that passion came from because I don't have any relatives who preceded me as lawyers, but I always enjoyed even as a young child, uh, persuading people to see things my way and, uh, remain dedicated to that ambition.
00:01:15
Speaker
I tried to get as close to the law as I could as early as I could. And so actually, um, both in high school and early college years, I tried to find any law related job I could. And one I found was to work in the mail room of a large law firm in Chicago. I would at that time deliver pleadings, uh, to court. I'd deliver a correspondence and copies of pleadings to other law firms.
00:01:42
Speaker
and even occasionally get the lawyers in my firm their lunch. But that's how I first started out in the law. And then actually my first job as a lawyer after graduating from Rutgers was as an associate at the very firm where I had started in their mail room. And then eventually you went on to become a partner there and the first person to make that climb from the mail room to the partnership, which is pretty amazing.
00:02:10
Speaker
It was great. I enjoyed Isham Lincoln and Beale, the firm that I started at, very, very much.
Involvement in Notable Death Penalty Case
00:02:16
Speaker
So what we really wanna focus on today, and again, I said, you've had this incredibly eclectic career in the law and are also an entrepreneur and run businesses and then also care about the arts. And so you've been producing plays and all of that good stuff. So you have all of these things going on. And now you have now added to that list being a published author of a book called Summary Judgment, A Lawyer's Memoir,
00:02:44
Speaker
which is about your experience on a death penalty case. And we'll get into some of the nitty gritty of that, but can we start just by you describing why it is that you chose to take on this case? It certainly wasn't your day job to do it, but you decided that you wanted to put in the time and the effort that is always involved in an appeal of a capital crime. So what drew you to that?
00:03:09
Speaker
principal motivations for seeking out the case. One was based on a little bit of ambition and probably a fair dose of hubris in that being a litigator, there was a premium put on winning, winning cases.
00:03:26
Speaker
and to distinguish yourself among litigators winning cases that others thought could not be won or would be difficult to win and so representing a death row inmate in a final appeal certainly offered that component of attraction and the other was that opposition to the death penalty with
00:03:49
Speaker
an exception for treason in my mind aligned with my own moral convictions. And so volunteering for the case gave an opportunity to not only give me a professional challenge, but also to act on some deeply held beliefs.
Challenges in Tommy's Legal Representation
00:04:04
Speaker
And so you were able to pick up this case for a young man named Tommy Hamilton down in Alabama. And can you tell us or tell the folks who are listening how it was that Tommy ended up on death row? On July 11 in 1984, Tommy Hamilton shot and killed Lehman Wood, a county official who he then worked for.
00:04:30
Speaker
He was tried, charged with capital murder, committed during the course of a robbery. He was tried and convicted and sentenced to death for that crime.
00:04:42
Speaker
With him at the time was his 16 year old wife of only one week and also his 27 year old sister, Janice. They both also were charged in connection with the crime. But Tommy found himself on death row, having been charged with and convicted of committing a murder during the course of a robbery. And it wasn't Tommy's first brush with the law.
00:05:07
Speaker
It wasn't his first experience with the criminal justice system, but it was his first involving a crime of violence and certainly of such magnitude as murder. He had been charged with some petty theft and minor burglary offenses, but this was a significant escalation and upgrade in terms of criminal activity.
00:05:32
Speaker
Yeah, and it seemed like when he had been in jail before that he was sort of a model prisoner in some ways. He was. Tommy was compliant and actually functioned quite well in a structured environment such as prison.
00:05:50
Speaker
He earned the status in jail of being a trustee, which is a type of work release program where he's allowed to do work and odd jobs for county officials during the day while spending his evenings incarcerated in the jail. So he sort of moved from these kind of petty crimes and crimes that were not crimes of violence.
00:06:18
Speaker
And then suddenly he is on trial for killing a man, for shooting someone and that person dying. So can you describe to people what that kind of litigation looks like, right? So when you go, when you're accused of a capital crime in Alabama, there are sort of phases of what happens. So what are those phases?
00:06:43
Speaker
Well, the first thing was, how was he going to be legally represented in the criminal proceedings? And being indigent, he got court appointed attorneys. Because the individual he convicted was so well known, a county official with a prominent profile, he got appointed lawyers from a different county that had no connection or knowledge to the victim.
00:07:08
Speaker
And then they proceed to the criminal trial, but when it's a capital offense, it's a bifurcated or a proceeding that's split into two distinct parts. The first is the guilt or innocence phase, and they determine whether or not he is guilty of the charge that's been brought against him. And then if found guilty.
00:07:30
Speaker
They proceed to the sentencing phase in which it's decided whether or not he should be sentenced to death or life without possibility of parole. Those are the only two sentences if you're convicted of a capital murder crime in Alabama. And in Alabama, when they say life without possibility of parole, they mean it. You will never get out of jail.
00:07:53
Speaker
So on one hand, we hear, oh, well, it's a terrible thing that this happened and that this person is being prosecuted for it. And then he is given a lawyer, right? And so people say, well, that's great. And if it's a capital crime, then you would imagine you got to get the best lawyer out there, right? Somebody who really understands the system,
00:08:16
Speaker
because what's at stake here is so substantial. And we would be wrong to think that that's the way that lawyers get appointed in cases like this. So who are these lawyers who were representing Tommy? Wrong in general and certainly wrong in this particular case. Tommy was appointed Wesley Lavender, an attorney from a neighboring county. Wes had some experience in being a defense counsel.
00:08:45
Speaker
But also defense counsel are compensated quite poorly when they're appointed to these cases. Given that it was a capital crime and given the magnitude of the crime, Mr. Lavender asked the court to appoint additional counsel to assist him with the case. And the court appointed another attorney, Mr. Barnes Lovelace.
00:09:06
Speaker
Mr. Loveless was only two years out of law school and had very little experience with criminal matters in general, had never been involved in a murder case before. And yet he found himself partnering with Mr. Lavender to represent Tommy in a trial for his life. And as you said already, these kinds of cases, these trials are bifurcated. So first you have to figure out whether the person is going to be convicted for the crime.
00:09:36
Speaker
And then the next part is the sentencing part. And so let's talk about what's different in those two proceedings,
Understanding the Trial Process
00:09:46
Speaker
right? So the first proceeding where we're trying to figure out whether the person is guilty or not guilty, what's happening in that proceeding?
00:09:55
Speaker
The guilt stage is largely a factual stage. It's is there a evidence beyond a reasonable doubt that the defendant committed the acts that he is charged with, that he is accused of having engaged in and committed.
00:10:13
Speaker
So in Tommy's case, the guilt phase largely focused on, did he shoot and kill Mr. Wood? And if so, what were the factual circumstances for that killing? Tommy had admitted, took the stand and testified in his own defense, admitted that he had shot and killed Mr. Wood, but it argued that it was in self-defense, that he felt threatened by Mr. Wood and so acted out to protect himself.
00:10:41
Speaker
So the guilt phase was focused on what was the context in which this admitted killing had occurred and the jury ended up concluding that it was in the course of a robbery and not in self-defense. The sentencing phase is not focused so much on what an individual is accused of having done as what are the circumstances that would argue for
00:11:09
Speaker
a severe punishment or a less severe punishment. And so things that are taken into account are aggravating circumstances and mitigating circumstances. An aggravating circumstance might be that more than one individual was killed or that the killing occurred during the course of a robbery. Mitigating circumstances, you would look at such things as the defendants
00:11:35
Speaker
level of education and intellect, their mental health status, and other attributes that might suggest that a more lenient sentence should be imposed. And so I want to talk a little bit about that first part and then get into the second part. So the first part, you said that Tommy testified, which, of course, he's
Appeal Strategy and Collaboration
00:11:59
Speaker
not required to do, right? I mean, he's got a right to just stay silent and to not
00:12:04
Speaker
incriminate himself. So that was, you know, in part sort of a decision, hopefully that was made in conjunction with his lawyers, but potentially one that wasn't in his best interest. But then in the second part, it's really about hearing from other people. And I know that, you know, we'll talk about the appeal and the work you did on the appeal. But
00:12:29
Speaker
You know, in that first part of that sentencing hearing, was there a lot of mitigation evidence put on? There was very little put on Kim. That part of the defense was overseen and shepherded by Mr. Lovelace, who I mentioned had only been out of law school for two years and had very little criminal defense experience.
00:12:53
Speaker
There were only four witnesses called on Tommy's behalf to offer mitigating testimony, his mother, a relative, and the entire, uh,
00:13:05
Speaker
Presentation made by Tommy's attorneys during the sentencing phase amounted to only 20 transcribed pages in the transcript of the overall trial. It was very brief. And so first, the jury votes and says whether they think it should be life or whether a death sentence would be appropriate. But it's the judge who ultimately gets to make that decision of whether it's life without parole or it's a death sentence. And in this case, the judge decided that
00:13:35
Speaker
a death sentence was appropriate for Tommy. So all of that is laid out. And now we've got a person who is waiting to be brought to the electric chair, but then is able to get you as his lawyer. So you're up in Chicago. All of this is going on down in Alabama. And one of the things that you talk about in the book was that you felt it was really important to have local
00:14:03
Speaker
You didn't want to be this Chicago lawyer who was showing up. So one, can you talk about why you felt it was so important to have local counsel in this case, and then talk about who you were able to get on board to work with you? Yeah, I actually volunteered for this representation through an ABA sponsored project, American Bar Association project, to represent people on death row in their final appeals.
00:14:31
Speaker
And they told me that when I asked about local counsel to assist, they told me that they had very much tried to get an Alabama attorney to be on the representation team. But there's a stigma attached to representing individuals on death row. There's little compensation. And so there's little incentive for lawyers to volunteer to do that work.
00:14:56
Speaker
But eventually, because I pressed them, they told me that they had found an attorney locally who would assist me. They introduced me to Lynn McKenzie. They more fully introduced me to her as Sister Lynn McKenzie, a Benedictine nun in Coleman, Alabama. But the Benedictines very much believe in bringing service to the community as well as their religious service. And so Lynn was a practicing attorney.
00:15:23
Speaker
And she became a partner on representing Tommy and ultimately a very dear friend. That's wonderful. And I guess the next question that I sort of have about that is, how do you work in conjunction with Lynn as your local counsel to sort of make that relationship work and to really be able to take advantage of what she brings to the table as somebody who's from there and what you're bringing to the table from Chicago?
00:15:53
Speaker
and from the kind of practice that you had been doing? Well, my practice was a corporate practice representing Fortune 5 companies in one of the largest court systems in the country in Chicago. And Lynn's practice was representing folks in rural Alabama with the legal problems that arise in those circumstances. Both of us had to learn death penalty law from scratch, if you will.
00:16:18
Speaker
But the value of local counsel in general and for Lynn in particular was not only her insight into local practice and judges, particular judges and their particular approaches to cases that come before them, their likes and dislikes.
00:16:37
Speaker
but also a network of contacts so that when we needed to find expert witnesses, when we need to seek records, when we needed to track down witnesses, she was immensely helpful logistically just being on the ground, but also her store of knowledge and her own experience with those issues and those matters. Yeah. And I think that's actually a really useful lesson sometimes for people to recognize that as we practice law,
00:17:06
Speaker
that there are other people who might have skill sets and knowledge that are useful for us and we should take advantage of that. So you said that you had to kind of
00:17:15
Speaker
learn death penalty law sort of from the ground up. Were there any things that as you were learning that law and trying to make sense of it that were surprising to you, shocking to you, upsetting to you about the way that we have constructed the system of appeals for people on death row?
Meeting Tommy and Building Trust
00:17:36
Speaker
It's fact intensive, but most criminal cases are fact intensive.
00:17:41
Speaker
But the law governing death penalty cases, especially post-conviction death penalty cases is extremely complex. And to have volunteer attorneys do it is asking a lot in terms of mastering that complexity.
00:17:57
Speaker
I've heard one lawyer say that expecting a corporate attorney to become versed in death penalty procedure and law is akin to asking a dermatologist to become an expert in obstetrics overnight.
00:18:15
Speaker
There are significant procedural hurdles that are unique to post conviction proceedings. You're not allowed to raise issues that could have been raised or should have been raised in the original trial and earlier proceedings. So you're pretty much limited to finding issues based on newly discovered evidence and evidence that could not have been discovered in the earlier proceedings and, uh,
00:18:44
Speaker
So it's a very narrow window that you have for pursuing relief. Can you tell me what it was like the first time you met Tommy? We met Tommy in a maximum security prison in Alabama. He was tall, lanky, jet black hair. Spoke slowly, almost with a stutter. Reminded me of a young Elvis Presley in kind of appearance and at least his demeanor as he presented us.
00:19:15
Speaker
There are largely two emotions that run through prisoners and circumstances like Tommy, their anger and fear. Tommy reflected the ladder. He was afraid of what was ahead of him. He was afraid of who's hands he was being put in to try and spare him from execution. And so it was a uncomfortable first meeting.
00:19:45
Speaker
for both of us. We had weighing on us the magnitude of what was at stake and Tommy did as well. I can't imagine how difficult it is to sort of walk into this space with this person whose life experience is so different from your own.
00:20:06
Speaker
and thinking about how to create a working relationship with him that would allow you to represent him to the best of your ability. Was that something that was difficult for you? Or was having that co-counsel a way to allow you to do some things and allow her to do some things? What was that like? It was difficult. I'm not sure I did it particularly well. And it was one of the areas that Lynn was extremely helpful.
00:20:36
Speaker
When we first met with Tommy, some of the first things I wanted to know was him to tell me what happened, recount the day as he recalled it and what happened and why it had happened. And Tommy basically parroted the testimony he had given on the stand. He said it was a self-defense shooting. He felt threatened and that's why he did what he did. By the time we met with him, I'd done enough preliminary investigation to understand that that was not the truth.
00:21:05
Speaker
And frankly, I blew up at Tommy. I told him that we just didn't have the time for him to come to trust me. He needed to be truthful to me from the get-go. And I didn't have the time to be pursuing false facts or fantasy in terms of representing him in the future. Lynn, given her nature, was much more empathetic and concerned about Tommy's feelings.
00:21:35
Speaker
Tried to give him reassurance that he could trust us. But we had to impress upon him that time was of the essence. And most of all, he needed to be brutally truthful with us in terms of information we needed from him.
00:21:53
Speaker
So one of the things that we talk about a lot now when it comes to our criminal justice system is people who get convicted for crimes that they didn't actually commit.
Commitment to Justice for the Guilty
00:22:05
Speaker
So we have innocence projects all across the country that are working to get people out of prison who shouldn't have been there in the first place in terms of what they were convicted for. And I think it can be really easy.
00:22:17
Speaker
for people to take on those cases, right? Here's a person who was wrongfully convicted and is sitting in prison, sometimes sitting on death row, and there's that real sense of sympathy.
00:22:29
Speaker
I think that you get from a lot of people. That's not who you were representing, right? I mean, you were representing somebody who had done the crime for which he was convicted. And so when you go into a case like that, how do you explain to people, you know, no, this isn't an innocence case, but it is a case where somebody deserves to have the best defense possible, even if we know that that person committed this crime.
00:22:58
Speaker
The reason I don't have any hesitance to take on a case even when I know the defendant is factually guilty is I don't believe that the conviction of innocent people is the only possible flaw in a criminal justice system and that we shouldn't not, we should not be hostile or even indifferent to other types of injustice that can occur.
00:23:24
Speaker
And so we discovered that there were significant injustices during Tommy's original trial and that, uh, I viewed myself as not so much defending the man and what he had done as I was defending and trying to uphold the law under which he should have been tried in the first place. I, uh, we had, um, um, a speaker here a few years ago who,
00:23:51
Speaker
had been a public defender for some amount of time. And he said, whenever he was asked by somebody, you know, how can you represent those people? And it's so awful. And he said, I represent the Constitution of the United States, which I thought was a really solid answer, right? That if we are going to put people in prison for life, if we are going to use capital punishment, that the system has to be a system that functions well, and that's highly functioning. And obviously, we see
00:24:17
Speaker
that that is not the case, and it certainly wasn't the case for Tommy. So once you get this case, you look at the record, you see what happened down below, how do you figure out what your strategy is going to be? Because your strategy, and I guess I should ask this in a different way, with Innocence Project cases, the strategy is let's get this person out of prison. What's your strategy in a case like Tommy's case?
00:24:42
Speaker
Well, we have to do issue spotting, as everybody does when they take on a case. We then have to decide what issues we've spotted. Can they be raised? Or are they procedurally precluded from being raised at this late stage of the proceedings? And once we've identified what issues can be pursued, then again, we're following this bifurcated approach or two-stage approach.
00:25:08
Speaker
which issues direct themselves to questioning the conviction for the charged crime and which issues address themselves to the sentence. And we may have a focus then that's on overturning the conviction, or we may have a emphasis on seeking to challenge the sentence. In Tommy's case, we felt we had issues to attack both.
00:25:37
Speaker
So let's talk about how that then played itself out, right? So once you started really getting into the case, there were all sorts of bits and pieces of information, some of it mitigation, some of it about ineffective assistance of counsel, a bunch of different things that were going on. So can you kind of walk us through what are the issues? And you did that issue spotting, what are the issues where you said, all right, this is where we're gonna hang our hat.
00:26:04
Speaker
These are the things that we're going to attack as we go forward. Well, the biggest issue that we discovered and the most troubling one.
Flawed Trial and New Evidence
00:26:12
Speaker
is we ended up discovering evidence to show that law enforcement had knowingly presented purchased, perjured testimony during the guilt phase of Tommy's trial. The last witness called by the prosecution at Tommy's trial was an inmate serving time and a cellmate, if you will, of Tommy's while he was awaiting trial. And we discovered evidence to prove
00:26:39
Speaker
that law enforcement approached that inmate and offered him to be released from serving the remainder of his sentence if he testified that Tommy had confessed to him while they were in jail together and indeed bragged about having committed the crime. Perjury, purchased perjury undisclosed to the defense that there was any kind of inducement provided to this testifying witness
00:27:06
Speaker
strikes at the very heart of the truth-seeking function of a criminal proceeding and goes directly to whether Tommy should have been convicted in the first place.
00:27:17
Speaker
We knew from reviewing the record that the sentencing representation Tommy had been provided was troubling given its brevity, given its shallowness. We had Tommy subjected to expert examination for psychological mental health issues and problems, electroencephalographs to see if there was brain damage or any physical reasons affecting his thought processes, his impulse control.
00:27:46
Speaker
And we just felt that Tommy's lawyers had woefully failed to meet their constitutionally required standard of representation with respect to presenting mitigating evidence with respect to his sentence. So we challenge both Tommy's conviction and his sentence. Got it. Well, let's focus first on, I mean, you have this evidence of perjury, right? And you have other people who were
00:28:12
Speaker
other folks who are at the jail at the same time who say, look, this is what happened. This is not a thing. The police are lying, basically, about what happened here. Was that enough to change the appellate judge's mind about the conviction in the first instance? Well, our proceedings start out at the trial level with a trial level judge, and he gives us an evidentiary hearing, an opportunity to present all this evidence.
00:28:42
Speaker
And at the conclusion of that evidentiary hearing, he ruled and he found that we had in fact proved that perjury had been presented and that had been presented in response to an offer of lenient treatment that had not been disclosed by the prosecutor to the defense attorneys. But what he concluded is that that perjury only affected the sentencing determination, not the guilt determination.
00:29:12
Speaker
So he did not vacate Tommy's conviction for capital murder, but he did order that a new sentencing hearing had to take place. And so that was the relief we'd gotten in the first instance. We were unsatisfied with that decision. We felt that the conviction was tainted by the perjury as well. And so we appealed.
00:29:36
Speaker
The Alabama Attorney General's office, who is our opposition in these proceedings, they were unsatisfied. They didn't want a new sentencing hearing. They wanted the death sentence upheld, so they appealed. And so we both found ourselves going to the appellate court to overturn the judge's decision.
00:29:57
Speaker
So I do want to talk more about the ineffective assistance of counsel and the concerns there, and then also flowing from that, the failure to share some of the mitigating circumstances that might have been really relevant to the jury or to the judge.
00:30:13
Speaker
in terms of Tommy's life. So let's actually start with that second part. So some of the stories that you share about Tommy's childhood are just heart-wrenching and really difficult to read and to think about a child growing up in a house like that. Can you tell the folks who are listening about Tommy's father and what it was like to grow up in a household with a man like that?
00:30:40
Speaker
Tommy's father was extremely abusive, both physically and emotionally, to all the other members of his family. He particularly singled Tommy out, the youngest of his four children. He questioned Tommy's peritange, basically disowned Tommy.
00:30:58
Speaker
He was brutal in Tommy's presence, ordering Tommy to take a baseball bat and bludgeon his dog to death and have gasoline poured on the dog and Tommy delighted a fire. He was subjected Tommy to beatings. He was an alcoholic. And in fact, he died in his fifties having passed out one night and suffocating on his own vomit.
00:31:28
Speaker
We brought all of that evidence to the attention of the judge. It was so open and obviously an abusive situation in the home that Tommy's father's own sisters testified as to how horrible their brother was and how horrible he was to his children, including Tommy.
00:31:50
Speaker
And then it also turned out, I mean, and obviously we see this in a range of different ways when people have trauma as children, that he also had various mental health issues and mental health diagnoses that Tommy did as well. And were those things that were brought out earlier or were those things that only really came to light once you were the attorney? They only came to light once we represented Tommy. His defense attorneys among their failings was they had
00:32:19
Speaker
retain no expert witnesses, no mental health professionals to assess Tommy to diagnose whether or not Tommy had conditions, no objective verifiable mental health tests to be performed on Tommy as to whether he had brain damage or some kind. Tommy had an IQ of 72. He was borderline intellect.
00:32:43
Speaker
And none of this was explored. And if it had been, they would have discovered the same types of things that we did.
00:32:51
Speaker
Uh, and that could have been presented at trial to the jury in making their decision as to whether or not Tommy should die, be executed or be incarcerated for life. And the one that one important thing to note about that is the jury recommended the death sentence by a vote of 10 to two. And in Alabama, that was the minimum vote necessary to sustain a death sentence recommendation.
00:33:18
Speaker
So if just one of those 10 jurors, just one had been persuaded by the mitigating evidence, the recommendation as to what the sentence should be would be different. Given what you were able to share, one can certainly imagine that had that information been available originally, that there might've been that one extra juror who said, yeah, those mitigating factors are sufficient.
00:33:45
Speaker
you know, not having lawyers in that first sentencing phase who were doing the work at the level that you were doing the work was really problematic. And one of the things that you talk about in the book was that not only did we have lawyers who didn't have experience in these kinds of cases, including a lawyer who was just a couple of years out of law school, but also a lawyer who was an alcoholic and people knew it. Yes, Mr. Lavender was a suffering alcoholic
00:34:15
Speaker
And he was the entire time he represented Tommy, both in defense and during direct appeals. We had witnesses testified that he was consuming at least a bottle of alcohol approximately every other night. And this was even during the actual trial. Interestingly, perhaps coincidentally, perhaps not. It was shortly after his representation of Tommy concluded,
00:34:43
Speaker
that his friends intervened subjected him to an intervention that then sent him to rehabilitation and treatment for his alcoholism. Not at a time when it was helpful to Tommy, certainly. Correct. So I want to get to what ultimately happened in the case, but I also want to just point out
Complications During Appeal
00:35:05
Speaker
because I think it's a good lesson for all of our future lawyers out there and our younger lawyers, that you can't always control your client, right? Even when your client is locked up. So one of the things that happened while you were representing Tommy is he escaped. Yes, we completed the presentation of our case over five days from Monday to Friday of the week we were for the trial judge.
00:35:31
Speaker
I was exhausted. I was optimistic. I thought our case had been presented well, that the judge had listened and paid attention and taken what we were saying to heart. And I was looking forward to a weekend to both rest up, but then also to prepare for cross examining the Alabama attorney general's witnesses who would start presenting their case that following Monday.
00:35:55
Speaker
At 6 a.m. that Saturday morning, we received a phone call telling us that our client, Tommy Hamilton, had escaped from the jail in which he was being held during these criminal proceedings. Law enforcement would have been fully justified in carrying out Tommy's sentence right then and there. A convicted murderer sentenced to death was loose on the streets of the town. And if they had shot him down, they probably would have been hailed as heroes saving the public.
00:36:22
Speaker
Fortunately, they didn't do that. They did recapture him quickly. But then I had to spend my weekend researching whether or not, by escaping in the middle of these legal proceedings, Tommy had effectively waived his legal rights to contest his conviction in sentence.
00:36:41
Speaker
that he had shown such contempt for the court system that the judge could simply say, this case is over, and we're not going to consider any of the issues that you've raised. So it ended up that you were able to go forward, that that didn't end the whole thing. But then the next thing that I think was really difficult to read about, and I'm curious to hear you talk about it here,
00:37:07
Speaker
was there was this opportunity where there could have been a sort of agreement, a settlement, right, where Tommy would have agreed to, and the state would have agreed to, a life sentence and the electric chair would have been off of the table. And Tommy was vehemently opposed to that.
00:37:31
Speaker
can you just walk me through your thought process as this was going on right i mean a large part of what you were trying to do is
00:37:41
Speaker
just save his life, right? Like that was a victory. And yet that victory didn't necessarily feel victorious to him. So can you talk about that? Sure. The trial judge did try to broker a deal before he made his ruling. And he asked whether or not Tommy would agree to accept a sentence of life without possibility of parole instead of the death sentence. Tommy had made clear to us from the very beginning
00:38:10
Speaker
that the only thing he feared more than the electric chair was spending the rest of his life in jail. In effect, he feared death by incarceration more than he feared death by electrocution. We brought the offer to him and he rejected it out of hand for those reasons. We thought it was the deal of a lifetime.
00:38:32
Speaker
We engaged his mother to have conversation with him. That was first and foremost on her mind was to save her youngest son's life. She could not persuade him. We reached out to Bryan Stevenson's office and thought that perhaps if you got a second legal opinion, if you will, from somebody else, an attorney from Bryan's office met with Tommy.
00:38:58
Speaker
shared the pros and cons with him, attempted persuade him, but Tommy would not budge. And ultimately it's the client's decision to make as to what plea to enter in that situation. And so reluctantly we agreed to follow Tommy's directives and we declined the offer that had been made by the judge.
00:39:21
Speaker
There was another point, I didn't bring this up before, but I feel like it's a nice place to bring it up now. There was another point in the representation where you had to make a decision about whether Tommy was ever going to get on the stand. And you say in the book that you had basically decided that if he insisted
00:39:41
Speaker
on testifying that you were going to withdraw from your representation. Can you just explain that a little bit? As a general rule, I would never have a criminal client testify in a criminal case.
Resolution and Reflections on Justice
00:39:54
Speaker
And I certainly wasn't going to have Tommy testify given his limited intellect, his proclivity to lie, and his inability to understand the strategy that we were trying to follow in representing
00:40:11
Speaker
Thank you.
00:40:12
Speaker
We wanted to put the criminal justice system on trial, not to retry his case. And by putting him on the stand, it would have opened him up to cross examination by the Alabama attorney general's office and allow them to refocus or continue to focus the case on what Tommy had done as opposed to what we wanted the judge to focus in on, which is what the prosecution had done and what his attorneys had failed to do.
00:40:42
Speaker
I remember you were a graduation speaker a number of years ago. And one of the things that you talked about was the importance of the role of a lawyer as a counselor, right? That it's not just about I go into court and argue on your behalf, it's actually sort of engaging with your client. And so I imagine that that engagement can be really different with somebody like Tommy, who you're trying to counsel versus say, you know, somebody from a Fortune 500 company where it's a very different
00:41:11
Speaker
experience, and where, you know, the only sort of lever that you have there is, I just, I won't continue to represent you, right? And I wonder, like, sort of what the frustration of that is, or is it just sort of like, well, that's just the way it is. So, you know, I'll do what I have to do. You know, there's there isn't really a lot of power
00:41:34
Speaker
Sometimes even if you know what the right decision is, you can't make it for the client. It's extremely frustrating. The frustration in those circumstances is compounded by the fact that it's so difficult to communicate with your client.
00:41:49
Speaker
If I want to communicate with my Fortune 500 client, I can have a meeting, I can have a telephone call almost instantaneously or soon. When I'm in Chicago and Tommy's on death row in Alabama, that kind of access is not as easily achieved.
00:42:08
Speaker
Tommy also has people whispering in his ear that he should not be taking guidance from. He's got cellmates on death row, jailhouse lawyers, if you will, goading him, urging him to take the most extreme positions. They have nothing to lose or gain from Tommy making a fateful decision. And yet they have much more access and time with Tommy to be persuading him than I realistically did.
00:42:37
Speaker
So let's get to the end then. So how did things ultimately resolve for Tommy? So both sides appealed the case. One interesting fact in terms of personalities involved at the appellate stage is that the individual that became Alabama Attorney General at that time was Jeff Sessions. That's the Jeff Sessions that became Senator from Alabama and then ultimately the Attorney General of the United States.
00:43:06
Speaker
His office was very aggressive in the appeal as were we and we presented our arguments to the appellate court and they largely along the lines that given that this perjury was presented during the guilt phase of the trial and was not presented during the sentencing phase that the entire conviction was tainted and needed to be thrown out.
00:43:29
Speaker
We ultimately got a favorable decision from the appellate court. They reversed the conviction and death sentence, agreeing with our arguments about the impact of the perjured testimony. And that opinion was written by another notable individual.
00:43:46
Speaker
The judge on the appellate court was Sue Bell Cobb, and Judge Cobb ultimately became Justice Cobb. She was the first woman to ever serve as Chief Justice of the Alabama Supreme Court. So what did all that mean for Tommy?
00:44:03
Speaker
Well, it meant Tommy was entitled to a new trial and the local prosecutor at the time said that he felt the decision was of no moment that he was going to retry Tommy, have him convicted of capital murder again, have him sentenced to death again. And he was prepared to go forward as if little had happened. Uh, we.
00:44:26
Speaker
Remain interested in seeing that a more just outcome occur with respect to Tommy's case and so we asserted that the difference this time would be that we would represent Tommy in a retrial and we would be putting the criminal justice system that county on trial in that retrial.
00:44:47
Speaker
And so after a lot of bravado and thumping chess, we finally got down to talking about what might be a just outcome in the case. And we entered into a plea agreement. Tommy, again, his emphasis, his goal was to be out of jail. That was more important to him. He did not want to spend the rest of his days. So getting a possibility of parole had to be on the table. We ultimately struck a deal where.
00:45:14
Speaker
Tommy would plead guilty to the charge of murder rather than capital murder. He would accept the maximum sentence possible for a charge of murder, which is life with the possibility of parole.
00:45:28
Speaker
To make it acceptable to the local prosecutor, we also agreed that Tommy would serve an additional seven years on top of the seven he had already served. So a minimum sentence of 14 years before he would become eligible for parole. There would be no guarantee he would get parole after 14 years, but that's when he would first be eligible for it.
00:45:53
Speaker
And we convinced Tommy and he agreed to that arrangement and so that is how the case ultimately resolved. So there were so many twists and turns in this case and obviously it was a significant enough life experience for you that you wrote
00:46:10
Speaker
a book about it. So as we're winding down here, I would love to hear you talk about the lessons that you took from that experience and the ways in which it potentially sort of changed you and the way that you think about our criminal justice system. Some of the lessons learned include the fact that after representing Tommy, I viewed
00:46:33
Speaker
litigation as less of a sport. I stopped defining the outcomes of cases in kind of a binary way that it was all about winning or losing. It was more nuanced than that. And especially if what you were truly pursuing was justice.
00:46:50
Speaker
Another lesson was that it is very important that even those who are factually guilty get quality legal representation, especially when we're talking about the most severe punishment that the legal system can impose, the death penalty. We need to be as
00:47:11
Speaker
Vigilant in terms of reviewing cases retrospectively as we are prospectively when we're talking about the death penalty. And it's important that legal represent legal representation.
00:47:26
Speaker
quality legal representation definitely makes a difference in terms of the justice that can be achieved. And I would hope that one day the Supreme Court would conclude or state legislatures would provide for mandatory legal representation in these death penalty post-conviction proceedings, which currently they do not. And it's sort of extraordinary to imagine somebody
00:47:52
Speaker
on death row, doing the level of work that you were able to do for Tommy proceeding without a lawyer, right? I mean, it is just an impossibility. So I want to thank you so much for your time, Don, and for talking to us about this experience. You know, the book is a really powerful story, and I think it really speaks in significant ways to the moment that we're in now where we are
00:48:21
Speaker
as a society thinking about criminal justice, perhaps a lot more and hopefully a lot more deeply than we have in the past. And I also want to just thank you for taking on Tommy's case, right? I mean, I think that that's a really powerful example for young lawyers that, you know, you have a skill set and you use it to make money, but you can also use it to do critical and important work that buttresses our legal system in general.
00:48:50
Speaker
Thanks again, and it was a pleasure talking to you, and I look forward to next time I get to see you in person instead of on a screen. Well, thanks, Kim. I'm certainly grateful to Rutgers Law School for giving me the training and the encouragement to do this kind of work that I did, and I'm thankful to you for hosting me today. My pleasure. The Power of Attorney is produced by Rutgers Law School. With two locations, minutes from Philadelphia and New York City,
00:49:16
Speaker
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