The American Bar Association’s Death Penalty Representation Project seeks volunteer counsel to pursue post-conviction appeals for indigent inmates on death row who are without state-funded counsel. While proponents of the Death Penalty Project often oppose capital punishment on principle, for many attorneys and judges the primary focus of the Project is the strong and honorable belief that every person, even (and, perhaps, especially) someone charged with a capital crime, is entitled to the due process guaranteed under the federal Constitution.
In late 2002, the Honorable Larry J. McKinney, United States District Court Judge for the Southern District of Indiana, sent a letter to counsel throughout central Indiana inviting them to volunteer for the Death Penalty Project; in particular, for work on cases in the state of Alabama, where state-funded counsel for post-conviction relief is not available. Only two Indiana lawyers responded to the call: Peter Racher and Donna Marron, two partners in the Indianapolis office of Plews Shadley Racher & Braun. Their charge was to represent Domineque Ray, a 30-year-old African American, convicted for murder and sentenced to death.
Post-conviction relief often concerns whether trial counsel was ineffective, such as would deprive due process to the person being tried. At his 1999 trial, Ray was represented by lawyers paid by the State of Alabama under a compensation scheme that until six weeks prior to the trial allowed a maximum compensation of $1,000 per lawyer for the guilt-innocence phase and $1,000 more for the penalty phase. The trial, on the guilt-innocence phase, lasted a day and a half. The penalty phase, in which the jury recommended the death penalty, lasted less than half an hour. No physical evidence linked Ray to the crime. In total, Ray’s attorneys were paid just $13,875 for 215 hours of work leading up to and defending Ray.
Racher and Marron are general civil lawyers who, when they started working on the Ray case in early 2003, had almost no experience with criminal law. However, with the assistance of those at the Death Penalty Project, Racher and Marron went to Alabama on the first of several trips and began nearly three years of work.
Finally, in September 2006, Racher and Marron got their opportunity to present evidence to the Court in a three-day evidentiary hearing to show that, indeed, Ray had been deprived of effective counsel in his original trial. For example, Racher and Marron showed that Ray’s trial counsel, during the guilt-innocence phase, failed to use available evidence to impeach the alleged co-conspirator who testified against Ray, failed to move for a change of venue or seek expert assistance in jury selection given adverse pretrial publicity, and failed to preserve issues for appeal by making timely objections. They also showed that trial counsel, during the penalty phase of the trial, failed to present any evidence of mitigating factors that might have resulted in a lesser sentence than death. This work required Racher and Marron to elicit testimony from Ray’s relatives and a licensed clinical social worker about the abuse, neglect, and poverty that characterized Ray’s life. An expert psychologist and neuropsychologist testified that Ray suffers from a schizotypal personality disorder and brain-development anomalies. And, important to the issue of whether Ray received effective assistance of counsel, Racher and Marron presented testimony from a psychology professor at the University of Alabama that juries are significantly less likely to impose the death sentence when mitigating factors such as those that were abundant in Ray’s case are presented during the penalty phase of a capital trial. Racher and Marron also presented evidence that the State of Alabama failed to produce key evidence indicating the culpability of another suspect who had been indicted and held in prison for two years for the same crime.
At the end of the evidentiary hearing, the Circuit Court judge took several issues under advisement, including whether expert evidence on Ray’s possible use of anabolic steroids at the time of the alleged crime can be presented. DNA analysis of a potentially exonerating blood sample, which was believed lost until recently discovered in the arresting officer’s file during his deposition, has yet to conclude. If inclined to grant relief to Ray, the Circuit Court judge could order a new trial in whole or in part or could reduce Ray’s death sentence to one of life in prison without possibility of parole.
To date, Racher and Marron have volunteered almost two thousand hours of their time and Plews Shadley Racher & Braun has paid the substantial expenses related to this pro-bono representation. While Domineque Ray’s fate is yet uncertain, there can be no doubt that Racher and Marron, by their efforts and with the support of their partners, have done their best to preserve Constitutional due process for at least one man; and, by so doing, for the rest of us, as well.
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