Professor Mello had a great many things to do in 1985. The business of the state killing its citizens was booming in Florida, and Mike was steeped in stopping it. Every moment provided real opportunities for making a federal case out of something, meeting important-sounding people, and being heroic—just the stuff lawyers live for. Lives were on the line, and Mike had his hands full.

But Mike rarely gave his clients the impression that he had a great many things to do. Persons on death row are exactly like you. For example, they like some lawyers and dislike (most)...

Legal cases are stories. Capital cases provide some of the law’s most unsettling stories. For me, the legal machinery of death is a collection of stories.

There was the insane man the government wanted to execute.

There was the condemned person who was a juvenile when he committed his capital crime.

There are the innocent men: Nationwide, as of June 2002, one hundred death row prisoners have been freed since 1973. For every eight people executed, one has been freed after proving his innocence—one in eight.

There are the African Americans, and there was the Cuban refugee on Florida’s...

In this chapter I want to situate my capital punishment stories within a historical narrative context. I trace three intertwined historical strands: the campaign to use the courts to challenge the legality of capital punishment, the right to counsel, and habeas corpus. My focus is the state of Florida, where the history of capital punishment is as old—and as weird—as the Sunshine State itself.

The framers of the U.S. Constitution clearly contemplated the validity of capital punishment. The Fifth Amendment speaks of deprivations of “life or limb” by the federal courts without “due process of law,” a requirement...

After a poor showing on the LSAT, I wasn’t able to get into my first few choices of law schools, and I ended up going to Case Western Reserve Law School in Cleveland, Ohio. As it turned out, I loved it there, but the tuition was $8,500 per year. I knew that I couldn’t accumulate that sort of debt load and still practice the kind of public interest law I wanted to practice upon graduation, so I worked like a demon during my first year at Case, hoping to transfer to the University of Virginia in Charlottesville, where, because of...

One of the primary tasks assigned to new lawyers is to research and write memos of law. Soon after becoming a Florida public defender, I was given the job of researching and writing a memo on whether we might be able to argue successfully that executing the insane is a violation of the U.S. Constitution. One of my office’s clients, Alvin Ford, would be a perfect test case to raise this issue.

I did the research and wrote the memo. The memo explained why, although there was a U.S. Supreme Court decision squarely in our path, I thought the claim...

Alvin Ford wasnʹt always crazy. When he murdered police officer Dimitri Walter Ilyankoff—who was attempting to prevent him from robbing a Red Lobster restaurant in Fort Lauderdale, Florida—Ford was sane as can be. Ford was African American. His victim was white.

When Ford was tried and sentenced to death for the murder, he was still sane. It was living on death row that drove him insane. It was waiting to be killed that drove him mad.

The Florida Supreme Court denied Ford’s direct appeal in 1980. The U.S. Supreme Court declined to hear the case. Thereafter, no attorney...

My first encounter with Florida’s method of execution came soon after I began working in the capital appeals division of the West Palm Beach Public Defender’s Office. On the eve (literally) of Robert Sullivan’s execution, in November 1983, my office drafted an eleventh-hour constitutional challenge to electrocution as cruel and unusual punishment.

Sullivan was not a typical death row inmate. He was smart and articulate. He was the adopted son of a Harvard-educated doctor, white, and gay. While in prison, he had transformed himself into a fairly decent jailhouse lawyer.

On the night of April 8, 1973, Sullivan, along with...

Racism has been the Gettysburg of capital punishment issues in the modern era. The claim that current systems of capital punishment are as racist as the old systems were has been seen as the last chance to knock out capital punishment itself in a single stroke.

I believe that capital punishment is at its core a civil rights issue. As a product of the American South, and as a capital public defender in a southern state, I have always understood the death penalty to be intimately related to matters of race. Historically, capital punishment has been largely reserved for African...

Of all my clients, Paul Magill is perhaps the one I found both the most understandable and the most incomprehensible. He was a really nice guy who could hold up his end of a complex conversation about the nuances of Greek philosophy. And he had been found guilty of committing a murder when he was seventeen years old.

Magill, a white, middle-class high school student with decent grades, a member of his school’s band, decided on impulse one day to rob a convenience store. He didn’t intend to kill anyone, but crimes like robbery can get out of hand rapidly....

When I was a Florida capital public defender, my colleagues and I were always looking for creative constitutional issues. One such issue, which never made it into a court filing, posited that, because people change on death row, in any given case the government may not be executing the same person who was sentenced to death years previously. Had I ever raised this constitutional claim, it would have been in the case of Stephen Todd Booker. When the state of Florida executes Booker, it will be killing a man who is vastly different from the person sentenced to death in...

George Washington fought only nine battles in the Revolutionary War, and of those nine, he won only three. But Washington won the war—and we don’t all carry British passports today—because he understood that he didn’t need to win every battle. What he needed to do, and what he did, was to make his armysurvive, to continue to exist. He fought and lost and rose and fought again. Thus did his scarecrow band of citizen-soldiers whip the most powerful military power of the age. Thus did he beat a king.

Jim Hitchcock’s case become a landmark capital decision...

Joseph Green Brown was innocent of the murder that sent him to death row. He spent thirteen years on death row and came within fifteen hours of being executed before his attorney obtained a stay from the Eleventh Circuit Court of Appeals. He had eaten his “last meal” and had been measured for the suit of clothes he would have worn for his funeral.

Ultimately, the Eleventh Circuit overturned Brown’s conviction based on prosecutorial misconduct. This result occurred due to the hard work and commitment of Brown’s pro bono lawyers, Richard Blumenthal and David Reiser. In ordering that Brown’s habeas...

I let Bennie Demps down. When I was his lawyer, in the 1980s, Demps always adamantly maintained his innocence. I didn’t really listen; I was too enamored of the constitutional issues in his case.

The U.S. Supreme Court has made some hideous rulings in capital cases. Some of the worst involve innocence. In 1993, the Court held that innocence, in and of itself, is an insufficient constitutional reason to void a death sentence or delay an execution. A few years earlier, the lawyer for a condemned prisoner with a strong innocence claim filed the prisoner’s brief one day late; the...

Capital punishment in our time has always reminded me of the Vietnam war. “Certain blood for uncertain reasons,” as Tim O’Brien wrote of his war. The only measure of success was the body count. No front lines, and no rear areas. No epic battles, only a series of brutal firefights against a largely invisible enemy. No lasting victories. Only casualties. David Funchess was a war hero. For his service in combat in Vietnam he received the Purple Heart, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal (with device). The Vietnam War also destroyed David Funchess. He was...

David Leroy Washingtonʹs case resulted in a seminal U.S. Supreme Court decision on the quality of counsel guaranteed to indigent defendants by the Constitution. I was involved along the edges of the case from before it reached the Supreme Court until the day of Washington’s execution.

The Eleventh Circuit’s landmark attempt to deal with the problem of ineffective assistance of trial counsel in criminal cases occurred in the capital case of David Leroy Washington. Judge Vance’s opinion for the en banc court inWashingtonwas a commonsense attempt to craft a workable doctrinal solution to a very real practical problem....

I have never witnessed an execution, although I have had many opportunities (if that’s the right word for it) to do so. When I was a Florida capital public defender in the 1980s, my colleagues and I decided that we should send a lawyer from our office to witness the execution of any of our clients. We felt that it was important that the client see at least one friendly face among the designated witnesses (who include reporters, police, prison personnel, and victims’ family members). We discussed at length which of us should go: should it be the frontline litigator...

The issues raised about capital punishment in the stories told in this book matter to all of us. The late Supreme Court Justice William Brennan perhaps said it best, in one of his last dissenting opinions before retiring from the court: “It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined.” To the contrary, “the way in which we...