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Death Penalty Appeals


Kaye Scholer’s pro bono work with death row inmates dates back to 1975, when one of our key partners attended a Columbia University Law School luncheon and found himself seated next to the head counsel for the NAACP Legal Defense Fund. While they were discussing some of the challenges the nonprofit faced, the counsel mentioned that he currently had more than 100 clients sitting on death row who had no lawyers to represent them. We volunteered to assist. Thus began a 40-year commitment to counseling death row prisoners, many of whom had inadequate representation during their trials.

In 1980, the Kaye Scholer team transformed capital punishment law forever when we petitioned the Supreme Court to hear Beck v. Alabama. Defendant Walter Beck had been convicted of first-degree murder after his accomplice intentionally killed someone during the course of a robbery. Even though Beck claimed, and evidence showed, that he had not planned to kill the victim, the Alabama court nonetheless sentenced him to the maximum penalty allowed—death. But based on our arguments, the Supreme Court ruled that a death sentence may not constitutionally be imposed for a capital crime conviction if the jury was not permitted to consider a guilty verdict for a lesser included offense. As a result, Beck was granted a new trial, as were 80 other defendants sitting on Alabama’s death row.

In the Market

Capital punishment matters that our attorneys have handled include:

  • Darryl Stinski v. State of Georgia (2012-Present): In April 2012, we responded to an urgent request from the ABA Death Penalty Representation Project to represent a death row prisoner for whom no volunteer counsel had been identified, and who had been ordered to represent himself in his state post-conviction proceedings—an impossible task for a death-sentenced prisoner. Our client, who appears to suffer from mental illness, was only 18 years old when the crimes underlying his sentence were committed. He had no prior history of violence. Initially convicted in 2007, Stinski was sentenced to death. However, his trial counsel did little to investigate his background or mental deficiencies. He filed his preliminary habeas petition in late 2011, claiming ineffective assistance of counsel and juror misconduct. In March 2013, we submitted his revised habeas petition and supporting affidavits. Our mitigation investigators spent a year tracking down and interviewing fact witnesses. We have also retained experts who have examined our client and submitted reports outlining their findings. Following a four-day hearing in August 2013, where we presented 20 factual and expert witnesses, we currently are preparing our post-trial briefs. Overall, the firm has already devoted almost 8,000 hours to this case, with more than 16 lawyers participating in Stinski’s defense.
  • Kenneth Eugene Smith v. State of Alabama (2005-Present): In November 2005, Kaye Scholer began its representation of Kenneth Eugene Smith, currently on death row in Alabama. Smith was tried twice for an alleged murder-for-hire. In the penalty phase of the second trial, the jury voted 11-1 against execution and for life imprisonment without parole. Despite this seemingly overwhelming decision by a jury of Smith’s peers, the Alabama state judge overrode the jury and sentenced Smith to death. Operating under time constraints to file a Rule 32 Petition in Alabama state court, we reviewed two sets of trial and appellate records, conducted in-depth investigations of the original crime scene records, interviewed witnesses, examined forensic evidence and did extensive legal research and writing. The petition and an amended petition were timely filed. The Alabama Attorney General moved for partial dismissal of the Amended Rule 32 Petition, essentially conceding the necessity of a hearing regarding our other claims. While we were awaiting a date from the court for a scheduling conference, the court decided to dismiss the entire Amended Rule 32 Petition. A motion for reconsideration was also summarily denied. The team briefed and argued an appeal to the Alabama Criminal Court of Appeals. After remanding the case three times to the trial court, the Alabama Court of Criminal Appeals ultimately affirmed the dismissal of Smith’s amended petition and the denial of his claims. Our motion for reconsideration in the Alabama Court of Criminal Appeals is pending. Both state and subsequent federal court appeals are anticipated. Our team has already devoted more than 9,000 hours to this case.
  • Commonwealth of Pennsylvania v. James Jones (2004-2013): Kaye Scholer successfully represented James Jones, who was on death row in Pennsylvania for almost 20 years. Judge Carolyn Engle Temin of the Court of Common Pleas of the County of Philadelphia vacated Jones’s death sentence and granted him a new sentencing hearing. Judge Temin ruled that the death sentence was improper because it, in imposing the death penalty, based its decision upon an aggravating circumstance that the jury was not tasked to rule on. In August 2011, Judge Temin formally imposed a life sentence for James Jones.
  • Percy Levar Walton v. State of Virginia (2002-2008): On June 10, 2008, Virginia Governor Timothy M. Kaine commuted the death sentence of our client, Percy Levar Walton, to life in prison without parole on the grounds that he was mentally incompetent to understand his situation. The commutation came just a day before his scheduled execution. The efforts of our team included traditional legal argument; extensive analysis of the medical evidence; research into other successful clemency petitions; persuasive drafting, lobbying for support from prominent world leaders, including Archbishop Desmond Tutu; advocacy in the press; and a great deal of political savvy—but most of all, an unwavering commitment to justice and human decency.