Justice Stevens Extols Pro Bono Service, Criticizes Connick Ruling

September 15, 2011
Justice Stevens Extols Pro Bono Service, Criticizes Connick Ruling
Blog of Legal Times

Retired Supreme Court Justice John Paul Stevens said Thursday night that for lawyers, "the greatest reward is not monetary," as he urged attorneys to take on clients in need of help on a pro bono basis.

Stevens, 91, spoke and received an award at a Washington celebration of the 25th anniversary of the American Bar Association Death Penalty Representation Project, which recruits volunteers from top law firms to assist death row inmates in their appeals.

Project director Robin Maher told the audience that the hundreds of lawyers recruited over the years have helped move 50 inmates off death row, either through exoneration or reduced sentences. She said the need is still great for lawyers to give skilled representation to those on death row, many of whom have had woefully inadequate counsel at trial and during the appeal process. "We need a much stronger word than crisis" to describe the situation, she said. The project trains and supports lawyers who participate.

Three law firms -- Arnold & Porter, Dorsey & Whitney, and Fredrikson & Byron -- received awards at the event for their pro bono representation. Also speaking was Anthony Graves, who was freed from prison in Texas last October after 12 years on death row and six years in prison. A special prosecutor appointed to review his conviction found no credible evidence linking Graves to the murders he was charged with committing.

"I was naive," Graves told the audience at the Decatur House, near the White House. "I thought if I was innocent, I would come out victorious." But the process of vindication took 18 years.

In his remarks, Stevens said that during his private practice years roughly 50 years ago, he never represented someone on death row. But he did take on the case of a prisoner at Joliet Correctional Center in Illinois who claimed that he had confessed to his crime because the police had beaten him. "I was convinced his story was true," Stevens said. Stevens remembers the case vividly, which he said is proof of how meaningful and rewarding pro bono service is.

Stevens, who in 1976 voted to reinstate capital punishment, announced in a 2008 decision that he had come to view the death penalty as unconstitutional, in part because of the risk of executing innocent people. He retired in June, 2010.

Stevens made it clear in his talk that he is still upset about the Supreme Court's March 29 decision in Connick v. Thompson. Stevens sharply criticized the ruling in a speech in May, and it is still on his mind.

In spite of extensive evidence of prosecutorial misconduct in New Orleans, a majority in Connick struck down a damages judgment that had been awarded to freed death row inmate John Thompson. That outcome turned on the Court's finding that the prosecutor could not be held liable for failure to train his staff, based on a single violation of Brady v. Maryland -- withholding exculpatory evidence from the defense. In his majority opinion, Justice Clarence Thomas cited the 1978 Monell decision, which said local governments could be held liable for civil rights violations only for actions that were based on official municipal policy.

Last night Stevens said the need to establish that a municipal policy such as inadequate training led to the civil rights violation was an "off the wall" and "obviously unwise" standard that "causes so much work" and should be changed. The common law concept of respondeat superior, which holds the supervisor responsible for the torts of employees, is the way to go, in Stevens' view...