With a Republican in the governor’s mansion, the machinery of death — stilled in Arkansas since the execution of Eric Randall Nance in November 2005 — is beginning to stir again. Executions scheduled for eight death row prisoners are on hold following a preliminary injunction over the state’s law that keeps the suppliers of execution drugs secret. But the agonizingly slow conveyor belt toward the needle will likely start again sooner or later, unless the state sees a radical and unforeseen reversal of legal fortunes.
The United States has an adversarial justice system, of course, and that means somebody has to be an adversary to the prosecution, even in the most heinous of crimes. In capital murder cases, where death is on the table, that often means defending clients who even their advocates know are guilty as sin, with the hope of sparing a life — often a violent and unrepentantly criminal life — as the only goal. Attorneys Teri Chambers, Katherine Streett and Jeff Rosenzweig have been chasing that goal for many collective years now, and they’ve saved many lives. A sizable portion of Arkansans would undoubtedly say some of the lives they helped spare didn’t deserve to be saved, or even defended in court. But, as they will tell you, the alternative — including hangings on the courthouse lawn immediately upon the sentence of death, as many death penalty advocates claim to want — isn’t justice, or anything close.
Below, based on interviews with Chambers, Streett and Rosenzweig, are their own words about their careers, their cases, the death penalty and what it’s like to defend those accused of the unthinkable.
‘Most of us are pretty lucky’
Capitol Conflicts attorney
Arkansas Public Defender Commission
Since hiring on as a public defender in 1994, Monticello native Teri Chambers has tried capital murder cases all over the state, often with her Capitol Conflicts colleague Katherine Streett. Along with attorney Lott Rolfe, Chambers and Streett handled the defense on the last death penalty trial in Pulaski County, that of Curtis Lavelle Vance, convicted in November 2009 in the October 2008 slaying of KATV news anchor Anne Pressly. Vance was spared the death penalty, but was sentenced to life without the possibility of parole. The daughter of a schoolteacher father and a mother who ran a mom-and-pop grocery store, Chambers has taken around 20 capital murder cases to jury trial in her career, and has had three where the client was convicted of capital murder with the possibility of receiving the death penalty on the table. One of Chambers’ clients was sentenced to death: Jerry Lard, who was convicted in July 2012 in the April 2011 shooting death of Trumann police officer Jonathan Schmidt. Lard’s case is on appeal, and he remains on death row. Chambers says she never wants to witness an execution, but will go to see Lard die if it happens, and if he asks her to be there.
I think anyone could be capable of taking a life under the right circumstances. There are probably some things that only certain people are capable of, but in general, most of us are pretty lucky. Most of us have had pretty good lives — loving, caring, nurturing parents, other people in our lives who were supportive. We’ve had the opportunity to get an education and move up in life. But yeah, but for the grace of God.
When I first got out of law school, I clerked on the Court of Appeals. Then I went into private practice for the first couple of years and was doing mostly domestic work, which is just terrible. People are crazy. It’s hard to find good-paying clients when you’re a young attorney in private practice, so it turned out I did a lot of unintentional pro-bono work [laughs]. My mother happened to see the ad in the newspaper for this public defender position and pointed me toward it, ever so gently. I put in my resume and applied for it.
I don’t remember having strong feelings about the death penalty before. I don’t ever remember being in support of it, really. I don’t remember considering it that much. Once I started thinking about the death penalty, I developed strong feelings about it. A lot of people, of course, think that the death penalty prevents people from committing murder. They think it’s a deterrent, but it’s really not. I’ve represented a whole lot of people who have been accused of capital murder, and I don’t think any of them ever stopped to think, “Am I going to get the death penalty if I do this?”
The first thing you want to do is get every piece of paper that’s got your client’s name on it: school records, medical records, DHS records, prison records. Whatever he’s been in, anything that might have his name. Not only his, but members of his family. They say you’re supposed to go back three generations if possible. Once you get those, you have to process them and you have to pull all the names out of them, because you’re supposed to interview everybody who has ever had any contact with him. Not only his immediate family members, but aunts, uncles, cousins. Then you’ve got coaches, teachers, prison guards. You have to extract all the names out of the records and get them into some kind of form where you can go back and figure out what’s useful to you and what you want to present at trial. It takes a lot of time. I think as far as realistically being able to be ready for a capital sentencing from the time you get the case, you’re probably looking at least a year. Sometimes, depending on the case, it takes much more than that. We get some who have lived all over the United States, and sometimes in different countries. You’re supposed to travel and find those people and track down those records. It’s really time-consuming.
Part of doing a death penalty defense, especially if you’re the one that’s doing the mitigation portion of it, is that you do tend to get close to your clients. You need to. If you’re going to be the person telling their story and arguing to the jury that they shouldn’t kill them, that’s part of it. In some cases, that’s more difficult than others. People who end up being charged with capital murder are a diverse group, just like any other group. You’ve got some who are very appreciative of your efforts and want to cooperate in every way. Then you’ve got some that, well, don’t — who are very difficult to deal with. So you have to find a way to break through that. You have to try to find a way for you to personally like them. Back in the late 1990s, I had a guy who was just hostile, mad about his situation. I had a hard time getting through to find a way to have positive feelings about him. So I decided, I’m just going to go see him and not talk about the case. I’m gonna take a deck of cards, and we’re going to play cards for the afternoon. So we did that, and it really did help the relationship. Now, the sheriff kept looking in the window and I don’t think he was very happy about it, but it served its purpose.
It almost always goes back to momma, you know? There’s a lot of substance abuse, usually, that they were around growing up. Particularly a lot of times, the father’s not even involved, but if he is, that might be part of it as well. You’re going to have a lot of abuse — mental, physical, whatever. But momma, in some cases, you can talk to her and you can say, “Hey, we’re trying to save him. I need you to be real about what went on in his life.” Sometimes they’ll admit it and sometimes they won’t. Sometimes they’re just pretty crazy and they’re calling all the time and they’re demanding and screaming at you. And then, when it actually comes time for them to do their job and get on the stand to try to help their kid. I had a no-show recently. He didn’t end up getting convicted of capital. It was a lesser included, but it was a life sentence, and she just decided to wig out and not show up.
I would like to see the death penalty go away because it’s a very rare case in which it should be used. But if you’re talking about the family of the deceased, you can’t blame them for wanting vengeance. I think that’s all the death penalty really is. It’s really just vengeance. If I was in their situation — if that happened to my loved one — we might all change our minds about it. Maybe they think it will make them feel better. I’m sure nothing is ever going to fix it. Maybe they just think it will relieve some of the pain, I guess. Maybe it does.
Somebody’s gotta do this job, and it turns out I’ve been pretty good at it. I’ve always believed that somebody’s gotta defend the underdogs. If there aren’t people like me that are willing to do it, the justice system isn’t going to work right, and you’re going to wind up with a whole lot more people on death row who don’t need to be on there just because somebody wasn’t willing to go and put in the work that needed to be done.
Sometimes I actually feel like I’ve helped people. Not only the clients sometimes, but the family members as well. I’ve got five years and counting until I’m eligible for state retirement. It will take a toll on you, and you certainly have to find a balance. Sometimes that’s hard to do. It helps to have dogs.
Little Rock attorney in private practice
Born in Hot Springs, Jeff Rosenzweig — at the still-young age of 63 — has become one of the old salts of Arkansas death penalty defense, just by virtue of the fact that he started at it young and never quit. He credits his longevity in the field to his private practice, where he pursues less taxing cases. Right now, Rosenzweig is helping challenge the state’s execution protocol, and the controversial legislation that throws a blanket of anonymity over the source of the drugs used in executions, lest the suppliers be publicly shamed. He and colleagues are also challenging the drugs themselves, which can have an effect Rosenzweig’s colleague Josh Lee, with the Federal Public Defender’s Office, characterized during a recent hearing on the subject as “like being paralyzed and burned alive from the inside out” if the first drug, a powerful sedative, fails. Rosenzweig said that’s what appears to have happened in April 2014 during the execution of Oklahoma inmate Clayton Darrell Lockett, who finally died of a heart attack, writhing in pain, 43 minutes after the injections started. Rosenzweig witnessed his first execution in 1992: the death of inmate Ricky Ray Rector, a cop killer who Rosenzweig said had been rendered brain damaged to the point of not even knowing what death was by a failed suicide attempt that blasted away chunks of Rector’s frontal lobe. He’s seen several men die by lethal injection since then, and says it never gets any easier.
Why did I become a lawyer? It was the ’70s. Seriously, it was the 1970s. That was a large part of it. Obviously, I was interested in a lot of the areas of what lawyers do.
I got a job at the public defender’s office back in the late ’70s, and I found that I really liked doing criminal law and I liked going to court. My boss, John Achor, was the head public defender. We were later law partners for several years. John assigned me a death penalty case my second week there, which was completely irresponsible on his part. But that’s what they were doing back then. So that’s how I got started doing them.
I was always against the death penalty. I was always against it. Having seen so many of these cases, so much depends on the conditions of when and where something happens, the strength or weakness of the evidence with regard to something. You can have a horrible crime, but the evidence is weak or they don’t seek it, or you have a sort of more — I use the term “run of the mill” thing — but you have a prosecutor who wants to make a name and pursues something, or then you have all the lack of understanding of mental illness, et cetera.
One of the real issues involving the death penalty is that we still know so little about mental illness and the reasons for certain aspects of human behavior — to what extent [a murder] was mental issues and behavior; to what extent it’s nature versus nurture and chemical imbalances and organic problems or what have you. A psychiatrist told me that we are barely out of the dark ages on understanding those things.
There’s a general common denominator, of course. People who are charged almost always come from, shall we say, the lower socioeconomic level. You have very few people who got through any sort of education. You’re not going to see them coming from an intact family. There’s going to be some serious mental health issues somewhere in the person’s history, et cetera. There is just simply no way to impose it justly, or to be fair about it. Arkansas, for instance, has such a broad definition of premeditation that almost anything could be covered under premeditation. I don’t think anyone who works in the system for a long time is going to have any confidence that the system is going to get it right. There are good, quality people in the system in terms of judges, prosecutors, defense lawyers, et cetera. But there are also some weak links. The problem is, the system has a lot of deference to the weak links. Even if the death penalty is technically permitted, there is a lack of fairness in the fact that some states don’t have it. In other words, whether you’re subject to the death penalty depends on the flukishness of what state you’re in, what county in the state you’re in, who the prosecutor happens to be, what level of lawyer you’ve got, et cetera, et cetera.
Religion plays a significant part of it. When you do jury selection in a capital case, you get to plumb attitudes. You know, “Why are you for the death penalty?” “Well, the Bible says an eye for an eye.” Religion is a substantial part of how people are taught, and whatever religion one is, it’s something that is based on emotion and the way you were raised, and not so much on experience and logic. Then, of course, when crime is high, people get scared. It has something of a symbolic effect. You have people who say you’ve got to have closure for the victim’s families. But you can get closure from a life sentence. You don’t need to execute someone to have closure. Closure makes sense, but that’s not the primary reason for a judicial system.
People are clearly not deterred by it. The homicides that end up being subject to the death penalty are generally not things that people have thought about for a long time. They happen. The person is overcome by emotion or mental illness or something like that. If they did it. Then there are people who are on death row who I’m convinced did not do it. There, you have essential failures of the system.
Is the death penalty ever warranted? No. That being said, let me tell you: It is appropriate at times for a person to kill in self-defense. There are a lot of homicides that are in fact self-defense. But that doesn’t mean it’s proper for society to do that. When one commits a homicide in self-defense, one is facing an immediate emergency. In other words, “Unless I kill him, he’s going to kill me, and him killing me is wrong, and I’ve got to protect myself.” Society doesn’t have that. It’s never an emergency. We as a society have the architectural skill to put someone away and lock someone up for however long it takes for them to no longer be a danger to anyone.
When you lose, you keep on thinking, what could I have done differently? What decisions would I redo? What should I have done differently then? Looking back on cases, I see what I would do differently now. Looking back 20 years, I still sort of cringe at [certain decisions]. I can still say something to justify it, and it makes sense, but I would do it differently now. I could have made a different decision. The decision I made certainly made sense at the time and could make sense now.
I’ve been in it a lot longer than I thought I would be. I would never have been able to do it this long if I had been doing just this — if I’d just been doing death penalty stuff — but I’ve always had a regular practice, and I also do other things besides criminal. I represent a lot of lawyers on ethics issues before the Committee on Professional Conduct and a few other things as well. Psychologically, I would not be able to do, either what the federal defenders do, or Kate Streett and Teri Chambers, where that’s essentially all they’re doing. Obviously, I’m at the position of thinking when I’m going to slow down and stop. But barring some health issue or something, I’ve decided to not think about it until next fall. Then, next fall, I’m going to decide what I’m going to do. I’m going full speed until then.
‘The ripples of tragedy’
Capitol Conflicts attorney
Arkansas Public Defender Commission
Katherine Streett has a desk that’s almost as messy as your average reporter’s, the top mounded over with paper. During our interview, a bit of the mound shifted and dropped with a hollow boom in the trash can. She just waved a hand at it and said to leave it, she’d fish it out later. Born into a family of lawyers in Camden, where both her father and grandfather were in private practice when she was a girl, she said she always knew she’d be an attorney. After graduating from law school in 1991, she started out with Dakota Plains Legal Services in South Dakota before returning to Arkansas to be closer to her family. She worked several years in the public defender’s office in El Dorado, and came up to Little Rock in 2007 to do capital crimes. She tried her first death penalty case in 1997, a barbershop shooting in Union County. Two of her clients have been sentenced to death. She has always been an epic procrastinator, she said, but working on the death penalty-eligible case centered her in a way like nothing else she’d worked on. On juror questionnaires, she said, she often sees the phrase “an eye for an eye,” an idea that she says totally bypasses the whole of the New Testament.
I don’t know that I would want to do any other kind of law, truthfully. I’m not sure I’m motivated to do any other kind of law. The job isn’t easy. It can be really emotionally difficult sometimes. But if what you do for a living isn’t something that makes you want to — most days — get out of bed and go do something, why do it? I’m not sure I’d be real successful at anything else. I realized that of all the kinds of stuff I was doing, those were the cases I cared most about. They were the ones that had the most at stake. When I have a hard deadline, I can actually buckle down. That is a huge motivator for me. I don’t know. That may be part of the reason this is what drew me, and what got me.
I think that the death penalty is us being guided by our lesser nature. I understand the desire for personal vengeance. I’ve never lost someone to violence. I think if I did, I could understand the desire for that. But that’s not what we should be about. We’re better than that. Imposing death on someone is never necessary. There’s always another answer. From my moral perspective there would have to be truly exceptional circumstances for me to agree the death penalty is justified. If there’s an option other than death, then the death penalty isn’t justified.
If you can’t advocate for your client, if you can’t do the job a lawyer is supposed to do, you need to find another line of work. There are modern Western democracies that don’t have a modern adversarial system, but that is what ours is. And you can’t have that without someone arguing on both sides. If you’re doing something or only doing it lackadaisically because somebody is paying you, that would keep me up at night.
The first case that Teri [Chambers] and I tried together was a case in South Arkansas that happened in Fordyce. When we were selecting the jury in that case, [the prospective jurors] were told to sit there and not talk about the case. Our investigator was out sitting with the panel, and during the break, he told us that he was sitting there listening to people there either in front of him or behind him who were saying, “I don’t know what the point of this is. It’s a waste of money. We just need to take her out and hang her on the courthouse lawn.”
I get that desire for personal vengeance, especially if it’s your loved one. But I don’t really understand it if the victim isn’t someone you have an attachment to somehow. That’s not a sense of justice. That’s a desire for vengeance. A misplaced desire for vengeance somehow.
Of course there are people who you’d just as soon not see breathing again. But do we not achieve what society needs by putting them away and never having to worry about them again? Yeah, we’re paying to feed them, and God will take them in God’s good time. But once you start talking about “we have to pay to feed them,” now that’s a financial decision. It’s cheaper to do that than allow the system to work in any semblance of fairness.
This system has been proven to be imperfect. Nothing conceived and put into practice by humans is perfect. So we know this system isn’t perfect in theory. We know it’s imperfect in fact, because there are people on death row all over this country who have been found to be innocent — actual innocence, not just, are they guilty of capital murder? Who truly didn’t do it. If we’re going to use this system as a punishment, which I oppose, don’t we have a moral obligation to make sure the people we’re killing actually are the ones we’ve decided need to be killed? Even if you believe the death penalty is an appropriate punishment, don’t you want to be as certain as you humanly can be that the system has worked fairly, and the person is actually guilty of the crime that you believe they did? How can you do that if you don’t allow the post-conviction process to go forward? How can you morally support this? Yes, it’s going to cost money. But at what point, if it were your child, or your parent who was the person who had been convicted and in fact they didn’t do it, you’re cool going, “Look, we just can’t afford all that post-conviction stuff. Is it cool if the wrong person [put on death row] is your loved one?” Because that’s the position we should all put ourselves in.
Occasionally, we get a client who is truly not guilty and did not commit the offense. So often, our clients have done something terrible. They’ve committed a crime that sort of defies belief. Prosecutors frequently argue, “Don’t show this person mercy.” They certainly didn’t show the victim mercy. But why are we asking a jury to use as their standard the behavior of someone they have just convicted of murder? Why is that the standard we’re supposed to use? Why don’t we ask ourselves: “Can we do better? Do we have to kill another person to make this thing work? Is there a way through this that doesn’t add a death?” Because you can kill that person, but by doing so, you contribute to the ripples of the tragedy. Their act started it. But that person has parents. They may have children. They have people who love them, who didn’t do anything. And yet, they will suffer, as may generations to come. I don’t understand why we feel the need to do that.