It takes a special breed of lawyer to defend in a high-stakes murder case.
Written by Jesse Chambers
Portraits by Beau Gustafson
Perhaps you’ve watched those heroic defense attorneys showing off in courtroom scenes in TV dramas and wondered, just for a moment, what it must be like—apart from the soap-opera trappings of pop media—for a real lawyer to step up and defend a real client who is charged, perhaps wrongly, with murder.
And the stakes are even higher if the charge is capital murder. This means the prosecutor sees at least one of the aggravating factors in a killing that can make a defendant a candidate for a sentence of life without parole or even the death penalty—what Birmingham criminal defense attorney Brett Bloomston refers to as “the ultimate punishment.”
Several prominent Birmingham lawyers who have handled capital cases explain that attorneys feel a certain responsibility when fighting, literally, to spare a defendant’s life and save him or her from the harshest fate meted out by an often imperfect justice system. “The pressure is enormous,” says criminal defense attorney Richard Jaffe. “It’s really hard to describe that kind of pressure.”
Jaffe should know, having handled, he says, “many, many hundreds of murder cases” and 50 or 60 capital cases, including five federal death penalty cases. “You are the lawyer that stands between your client and a death sentence,” says Birmingham attorney John Robbins, who has handled more than 150 murder cases, including 70 capital cases.
“It is a special responsibility,” Bloomston agrees. In fact, if an attorney does not feel the pressure of defending a client’s life, he has a problem, according to Bloomston. “If you go into a capital case at trial, and you don’t feel like there’s a knot in your stomach, then you might want to rethink what you’re doing,” he says.
Criminal defense attorneys who take on capital cases, especially on a regular basis, are a special breed. They seem to love the work and are willing to put up with unusual stress and anxiety to do it. Not only that, capital litigation can be very difficult and often heartbreaking. But there are compensations. The attorneys develop an amazing skill set and range of knowledge about everything from forensics to psychology. They take pride in upholding the U.S. Constitution and seeking to make the system work for everyone, including capital defendants of limited means. There are also rewards that can only be called spiritual, it seems. They are able many times to help to free the innocent or at least find a just, humane punishment for someone who has committed murder.
And by the nature of what they do as attorneys in death cases, they must probe the minds and investigate the often difficult backgrounds of capital defendants, some of whom committed the crimes they are accused of. They learn that when we look deep enough, we can see some good—some redeeming spark—in the heart of almost anyone.
The criminal defense attorneys we spoke to in Birmingham certainly take their death cases very seriously. After all, “Death is different,” says attorney Kira Fonteneau, who runs the Jefferson County Public Defender Office. “Death is irrevocable, irreversible.” Because of the importance of death cases, everyone in the justice system, from the defense attorneys to the D.A. to the judge, “needs to operate at their highest game,” Fonteneau says. “So much is at stake.” Fonteneau, who was hired in 2012, has practiced law in Birmingham since graduating from law school at the University of Georgia in 2005. “All [three] murder cases I have been on have been capital cases,” she says. “We don’t get a lot of straight murders. The prosecutor has many ways to enhance the charges.”
The 18 aggravating factors that can make a murder capital in Alabama include, for example, killing someone in the course of a robbery, kidnapping, or burglary. Bloomston, in his own practice for 13 years, says he has followed “a personal and professional rule” that he will accept only one capital case at a time so he can give each client the proper time and resources. He has handled about 20–25 murder cases and seven or eight capital cases. None of his clients has received the death penalty or life without parole.
Attorneys work hard on capital cases to give their clients a decent outcome, but they are also fallible human beings. “It’s hard to be a perfect lawyer,” Jaffe says. “If we mess it up, the consequences are great,” Fonteneau says.
Jaffe has had many successes in capital litigation. He helped free three men—Randal Padgett, James “Bo” Cochran, and Gary Drinkard—from Death Row and successfully handled an appeal for a client named Wesley Quick. But one case still haunts Jaffe—the only capital case in which his client was sentenced to death. That client was Benito Albarran, convicted of killing Huntsville police officer Daniel Golden with a pistol in 2005 after Golden responded to a domestic disturbance call at a Mexican restaurant where Albarran worked. “I still have nightmares about the case,” Jaffe told the Associated Press in 2012, following the release of the attorney’s book, Quest for Justice: Defending the Damned, in which he discusses his career and his opposition to the death penalty.
“[Albarran] did some awful things that day,” says Jaffe, who grew up in Mountain Brook and has practiced law for almost 40 years, working first as a prosecutor. “He was completely out of his mind. But he was the most remorseful, repentant client I ever had. And he wanted to be punished.” But Albarran should not have suffered the ultimate punishment, according to Jaffe. “What he did was inexcusable and deserved the worst punishment, but I don’t think he deserved death,” he says. One problem was the presence on the jury of a woman who Jaffe believes should have been struck because she had been a victim of domestic violence, a factor in Albarran’s case. Instead, she became jury foreperson. And Albarran would not have faced the death penalty in any other state or in a federal case because only 10 of the 12 jurors voted for it, but that was all that was required in Alabama, according to Jaffe.
Not only are the stakes in capital cases high, but they are more difficult to handle than other murder cases. “The statutes are very complex,” says Jaffe. Lawyers must know constitutional law, U.S. Supreme Court rulings, state law, federal law, and the rulings from the 11th Circuit of the U.S. Court of Appeals. “Then there is picking a jury, which is completely different in capital cases,” Jaffe says. And all this is done in a pressurized atmosphere precisely because it’s a death case. “Everything is under heightened scrutiny,” Jaffe says.
Veteran attorneys are needed to handle these cases, according to Robbins, a Bronx, N.Y., native who graduated from Cumberland School of Law at Samford University in 1987 and began practicing law in Birmingham. “You have to make hard decisions that only come from experience,” he explains. “Very rarely can a lawyer right out of law school be able to take on a capital case and handle it effectively.”
Capital cases typically present a couple of other headaches, according to Bloomston. “Preparation…is always difficult because your access to your client, who is typically in jail awaiting trial, is limited,” he says.Another problem for a lawyer handling a court-appointed case is the financial aspect, according to Bloomston. “We will never have the same resources as the prosecutor,” he says, noting that all police agencies—local, county, state, federal—“essentially work for the prosecution.”
However, that situation seems better in Jefferson County and the Northern District of Alabama than in other parts of the state, according to Bloomston. “In my experience, and this is not the norm in Alabama, but [those] judges are very aware of the disparate resources available…and they provide money for experts,” he says. The public defender office that Fonteneau runs was established as a way to improve the legal services available to indigent defendants, but judges still appoint private attorneys to handle some cases. “The vast majority” of death cases are given to private attorneys, Fonteneau says.
The drama at a capital trial, as well as the attorney’s work, is not over when the person’s guilt or innocence is decided. “It’s really two trials in one,” Jaffe says. “First, can the state prove the client’s guilt beyond a reasonable doubt? The second trial is the sentencing portion.”
“Sometimes your best approach in a capital case is to say, ‘Yes, my client is guilty of taking this person’s life, but you should not take his life,’” Robbins says. But the attorney then has to “convince jurors that life without parole is no walk in the park, no easy sentence,” he says. In the sentencing phase of a capital case, there is a “more significant role for mitigation,” Fonteneau says, referring to extensive effort by the defense team to dig into the client’s background and family life and ferret out any factors that show extenuating circumstances or give the judge and jury some context or understanding of the defendant’s actions.
“Were they intellectually disabled?” Fonteneau says. “Do they have mental health issues? Were they abused? There can be all kind of mitigating factors.” Attorneys defending their clients in death cases must have a real belief in the cause, attorneys say. “With capital litigation, you have to have the passion, have to believe in the sanctity of life,” Robbins says.
Defense attorneys must also keep appeals in mind, even in the midst of a trial. “Every [death] case will be appealed if death is imposed,” Fonteneau says. Attorneys must “preserve objections that can be useful on appeal,” she says. They must also possess certain skills or attributes in order to handle a capital case effectively. There is “intellect,” Fonteneau says, the attorney’s ability to “find legal issues and present them in a way a judge and jury can see them and understand them.” And a defense lawyer handling a capital case should be fully engaged in helping the client. “The first thing is you have to have someone who is really dedicated, who is all in, someone willing to do everything they can do ethically and feasibly,” Jaffe says.
Attorneys have to be willing to work very hard on capital cases, according to Robbins. “You have to put in the time,” he says. “You have to leave no stone unturned.” Attorneys have to look at “every piece of evidence, every angle, every theory,” he says. An attorney “can’t phone in a death case,” Fonteneau agrees.
Much technical knowledge is required of a defense attorney, such as a thorough understanding of crime scenes, including fingerprints, blood, and DNA. “The science can get very complicated,” Jaffe says. As Fonteneau pointed out, attorneys must be aware of any mental or emotional problems their clients have, especially if they had a role in any criminal act the client committed. “The mental health aspect gets very complicated and the decision about which experts to use is a huge decision,” Jaffe says.
Good defense attorneys must have empathy with their clients, no matter their circumstances, according to Bloomston, who saw this quality at work while working for Jaffe during law school. “Richard could see the good in almost anyone,” says Bloomston, a Birmingham native who graduated from The University of Alabama School of Law in 1996. “It is hard to be a zealous advocate when you can’t relate to your client,” he says. “And these are often very unlikeable people. It is very difficult.” But it is not impossible. “You can find glimmers of hope in people who have done seriously wrong things,” Fonteneau says. “That’s a big part of our job.”
Jaffe agrees that empathy and compassion are critical components. “You must have compassion for everything your client has gone through to get to this point and how scary it must be to face the death penalty,” he says. “The attorney also needs an inquiring mind and the courage to really understand the entire life history of a client.” This understanding is critical because “people facing death are, as a rule, the opposite of affluent,” says Jaffe, who notes that many of these defendants—the ones typically defended on a court-appointed basis—are poor and often have mental health problems or a lack of coping skills. And many use drugs or alcohol to “self-medicate,” Jaffe says.
Criminal defense attorneys need “high emotional intelligence,” Fonteneau says. “There’s nothing that determines the outcome of a case more than the relationship between the lawyer and the client,” she says. “If [they] can’t communicate well, if they can’t share freely with each other, the whole thing breaks down. I can’t, as a lawyer, tell someone to go to prison for four or five years and have them believe that and take that as the right thing to do, unless they trust me to understand not just the case but their perspective.” Emotional intelligence can also help attorneys manage the expectations of their clients, according to Jaffe. “You don’t want to build up their expectations to be unrealistic, because that gets you in trouble, keeps you from ever reaching plea bargains,” he says. “But you don’t want them to lose confidence in you, their belief that you’re working for them [and] that you believe in them.” Jaffe always wants to plea bargain, if possible, to avoid the uncertainties of a jury. “You never know what 12 people on a jury are going to do,” he says.
To handle death cases successfully, the attorney needs an ability to handle the demands of a courtroom trial—and that is not for everyone, according to Robbins. “Everybody can’t be a trial lawyer,” he says. “You have to think on your feet because things are coming at you all the time.” These attorneys have the critical task of communicating effectively with the jury. “I try to instill in young lawyers that they should keep it simple—you don’t need to use long words,” Robbins says. “You have to tell your client’s story. You have to tell it in a simple, persuasive way for the 12 people on the jury who are hearing it for the first time.”
You can’t go it alone in handling a complex capital case, attorneys say. It is critical for the lead attorney to have the right investigators, experts, and other attorneys with complementary skill sets on the defense team. “The law is very complex in these areas and…you shouldn’t be afraid to reach out for help to lawyers” with greater expertise in certain areas, Jaffe says.
“It’s not just one attorney there late at night like Atticus Finch,” Fonteneau says. “If done well and done right, it’s a large team that comes together to present a case. That’s why [capital cases] are very expensive.” However, there’s still one person who, ultimately, takes responsibility, according to Robbins. “Even though you have a team and you delegate, there is no substitute for a lead lawyer to understand the case,” he says. “He also has to do at least some of the grunt work.”
Some of the pressure on a defense attorney handling a capital case is often “self-imposed,” says Robbins, who believes that the basic legal principles underlying a murder case are fairly simple. “It’s easy from a defense lawyer’s standpoint in my opinion in that there are not many defenses to murder,” he explains. There is self-defense. A defendant can also plead not guilty. Or they can admit that they killed someone but that they didn’t mean it. “The latter could mean a charge of, say, manslaughter or criminal negligence,” he says. And there is one more “old-school defense,” Robbins says: “‘I did it, but so and so deserved what he got, I was the person to do it, and here’s the reasons why.’”
An attorney must stay focused and disciplined and start putting the case together, beginning by looking logically at the soundness of the aggravating factors cited by the prosecutor in making a capital charge, according to Robbins. “Don’t let the case get too big for you,” Robbins says. “You have to keep yourself focused in that. Don’t get overwhelmed. Break it down. Look at the murder. What are your defenses?”
Capital cases that are controversial or highly publicized—like Jaffe’s defense of the Atlanta Olympics and Birmingham abortion-clinic bomber Eric Rudolph—add another layer of pressure and difficulty. “Capital cases, by their very nature, are high profile,” Bloomston says.
“There is so much press scrutiny,” Jaffe agrees. “That puts pressure on the prosecutors, on the defense. Everything is under a microscope. It changes the dynamic, like cameras in the courtroom.”
This was certainly true with Rudolph. In his book, Jaffe writes that Rudolph—after he was identified as the primary suspect in the 1998 Birmingham abortion clinic bombing —was still on the run and quickly “became one of the most mysterious and elusive fugitives in United States history.” “[Publicity] only adds additional pressure if you let it,” Robbins says. “No one wins the case by trying to litigate it in the media. It doesn’t necessarily serve your client well to be in front of a camera at every turn, and there are limits to what you can say according to court orders and the code of ethics.”
Bloomston got a huge lesson in dealing with highly publicized cases a few years ago when he defended Birmingham man Gabe Watson, who had been charged in Alabama for murder in the death of his wife, which occurred when the couple was scuba diving during their honeymoon in Australia in 2003. Watson had already served time in Australia, but for criminally negligent homicide, not for an intentional act. The case generated a media firestorm, one that was not helping Watson’s efforts to clear his name. “The public perception of Gabe Watson was just awful,” Bloomston says. “He had been beat up in the media. Nancy Grace and other talking heads were demonizing Watson. We had to even the playing field as far as public opinion.”
Bloomston appeared with Alabama Attorney General Troy King, who was pursuing the case against Watson, on The Today Show on NBC-TV. “I tried to refute as much as I could, in the few seconds they gave me to speak, and I think I did a pretty good job in getting our message out that Gabe was a bad dive buddy but that he did not intentionally kill her,” Bloomston says. Watson was acquitted of the charges in Jefferson County in 2012.
The attorneys agree strongly that every person, regardless of his or her actions, deserves a fair trial. “Our oath we take as lawyers and the U.S. Constitution and the U.S. Supreme Court and our ethics make it crystal clear, 100 percent clear, that everyone deserves a defense, even the guilty,” Jaffe says. “And just because you’re guilty doesn’t mean you deserve the maximum punishment.”
“They still deserve a defense and an effective advocate,” Robbins says. “If you can’t put your heart and soul in it and give it 100 percent, you should not do it. Even with horrible crimes, you have to believe in the humanity of your client.”
“The Constitution says everybody deserves a fair trial,” says criminal defense attorney Clayton Tartt of the firm of Parkman White, who has handled several death-penalty appeals. “It doesn’t say you deserve a fair trial if you’re not crazy or you’re somewhat of a decent person.”
“The individual person we represent is important to us, but what we’re really doing as lawyers is defending the Constitution, and it tells us that every person has a right to a trial and an impartial jury,” Fonteneau says.
The attorneys who do this work, much of it court-appointed, are not looking strictly for a monetary award. “You won’t get rich doing criminal defense work,” Robbins says. And the work takes its toll, according to Jaffe. “I don’t really do much death penalty work currently because it is so unimaginably stressful,” he says. Criminal defense attorneys also take the risk of being haunted, as Jaffe is, by a case like that of Benito Albarran. Albarran, whose conviction was appealed, had not yet been executed when, in 2015, he committed suicide in prison. “After his mother died, he hung himself,” Jaffe says. “It was very sad.”
Albarran is a good example of many of the people charged in capital cases, according to Jaffe. “He was mentally challenged. He couldn’t speak English very well at all,” he says. “He was self-medicating. He’s in a disastrous relationship with his wife. He was overwhelmed trying to run a Mexican restaurant. He’s addicted to alcohol and cocaine. One day, he just exploded. It wasn’t who he was. It’s what he did on that day.”
Despite the inevitable stress, there are rewards for the criminal defense attorneys, and they go beyond money. “I think it’s the highest calling of a lawyer to defend someone facing extinction, especially if they are falsely accused,” Jaffe says. He experienced that supreme reward when his clients were freed from Death Row. “It makes it all worth it. It’s very validating and life-affirming,” he says. And doing death penalty work has made Jaffe “a better person,” he says.
“I have learned a lot about human nature, my own weaknesses and strengths, my own ability to be compassionate, and my ability to understand human nature,” he says. “A death penalty lawyer always tries to look at the best parts of a person.”
But how do you really feel?
The defense attorneys that B-Metro spoke to all expressed their opposition to capital punishment. Most have moral objections as well as complaints about the way the system is managed and death sentences handed out.
In his 2012 book, Quest for Justice: Defending the Damned, attorney Richard Jaffe discussed what he called his “fervent stance” against the death penalty. Jaffe also states in the book that the United States is the only industrialized nation in the Western Hemisphere that still imposes the death penalty. “Every other western country agrees with me,” he says.
“I have serious moral issues with the idea of taking a life,” says Kira Fonteneau of the Jefferson County Public Defender Office. “It’s difficult for me to sit in judgment and tell another person if their life is worth something or not.”
A Catholic, attorney John Robbins says he approved of an anti-death penalty stance taken by the Church. “We should not allow the government to kill our citizens,” he says. “It is not a deterrent. It deters no crime. A lot of it is retribution.”
“I don’t know if the death penalty serves a purpose other than vengeance, and that’s not how I want to live my life,” Fonteneau says.
Death penalty opponents point out many problems with the system, including unqualified lawyers handling complex capital cases on a court-appointed basis for indigent clients and the way in which issues like race and socio-economic status seem to influence who gets death and doesn’t.
“This is not based on any religious faith, but the system is imperfect,” Bloomston says. “In recent history, we have killed people who were not guilty. We have incarcerated people for years who are not guilty.”
The death penalty system is also expensive, according to Robbins. “Capital cases put such a financial burden or the limited resources of our judicial system,” he says. “Studies show that it’s more cost-effective to house someone…than to put them to death.”
More than 200 people on Death Row in the United States have been exonerated since the 1970s, according to Robbins. “It is a flawed system,” he says.
“I don’t think that the state should be able to take someone’s life without 100 percent certainty and guarantees that it is administered fairly and applied equally without any possibility of mistakes,” says Clayton Tartt, an associate at Parkman White has handled several death penalty appeals. “If you can set those parameters and put them into law, I’m not sure I would be against capital punishment.”
But he noted that laws are made and enforced by people—judges, juries, prosecutors, defense attorneys. “With all those people there will be error. When you are implementing the ultimate punishment, you need a perfect system.”
The attorneys all expressed the belief that Alabama’s death penalty law will come in for scrutiny in the wake of a January ruling by the U.S. Supreme Court in which the Court voted 8-1 to strike part of a Florida death penalty law that is similar to that in Alabama. Florida, Alabama, and Delaware are the only three states that allow judges to order the death penalty for a defendant even when the jury has voted for life in prison.
The Supreme Court ruling “definitely will have an impact,” says Tartt, who believes that the Alabama law will be challenged.
The ruling could be “one step closer to our legal system abolishing capital punishment in the sense of the death penalty,” Robbins says.
Tags: Jesse Chambers