Volunteer lawyer works on Georgia death row case

Southern Justice Connecticut Law Tribune
Monday, August 25, 2008
Copyright 2008, ALM Properties, Inc.

By DOUGLAS S. MALAN

To death row inmate Leon Tollette, Connecticut's H. James Pickerstein was just another lawyer. Four others had handled his case ever since he pleaded guilty to shooting and killing an armored truck guard in a botched robbery in Columbus, Ga., in 1997.

All of the attorneys had been court-appointed. None of them had changed his lot.

So as he sits in the Georgia Diagnostic and Classification Prison, Georgia's flowery name for its death row 60 miles southeast of Atlanta, why should he have faith in a lawyer from 1,000 miles away who is taking his case pro bono?

Because Pickerstein believes that Tollette never has been given adequate legal representation.

Pickerstein, a white-collar criminal defense attorney in Pepe & Hazard's Southport office, took Tollette's case as part of the American Bar Association's Death Penalty Representation Project. The 22-year-old program recruits experienced attorneys to raise awareness about the "serious and critical lack of counsel" available to death row inmates, said Washington, D.C.-based director Robin M. Maher.

In Maher's seven years with the program, Pickerstein is the only lawyer from Connecticut who has volunteered. Maybe that's not surprising.

"What we're asking of lawyers is not insignificant," Maher said. There's no pay involved. But there is often thousands of hours of labor, starting with research into the inmate's pre-conviction life, the nature of his crime and the chronology of his legal journey.

The work is "very demanding, intellectually challenging and incredibly rewarding," said Maher, noting that the program stems from a politically neutral ideology. "It's about representing someone who has been abandoned. Most civil attorneys assume that if someone's on death row they have had access to proper representation, but it's not true."

Long Commitment

Pickerstein took over the case in May after answering a call for volunteers from the American College of Trial Lawyers, of which he is a fellow.

He had an easy time convincing his law firm's executive committee that it was a worthwhile cause, he said. He is committed to at least 18 months of service but recognizes that it will probably last longer.

"This is a large commitment of my time and the firm's time," said Pickerstein, a former acting U.S. Attorney in Connecticut. "I think it's something that ought to be done."

Pickerstein's first order of business was to persuade the 42-year-old Tollette, who has been on death row for 12 years, to accept his new counsel. Pickerstein did that by writing a letter to Tollette and explaining his legal background and why he was interested in assisting. Then he made the first of two trips to Georgia to get to know Tollette.

"At first, he was hesitant," said Pickerstein, who has spent about 100 hours on the case thus far. "It took a little time to establish a rapport. I didn't know if he'd accept my representation and if he did, if he wanted to throw in the towel. He's not resigned to his fate."

Pickerstein said Georgia's death row is located on beautifully manicured grounds where guards "could not have been nicer or more accommodating." Still, he added, "it's an intimidating place."

Nothing from Pickerstein's 38-year practice experience prepared him to represent Tollette, but a friend of his in Chicago who is representing Guantanamo Bay detainees played a role in developing his interest in taking due process cases of the indigent.

"He has told me that when you get involved in one of these cases, it's a life-altering event," Pickerstein said. "I'm prepared to have my life altered."

Intense Research

After poring over 10 years of transcripts in Tollette's file, Pickerstein has determined that previous attorneys failed to introduce mitigating evidence that could have kept Tollette off of death row. This includes witnesses who have known Tollette since his childhood days in Los Angeles and who can provide a broader picture of Tollette beyond the facts of the crime.

"That's all relevant evidence in the penalty phase," he said.

One of Pickerstein's biggest challenges at this initial stage is tracking down these witnesses in California, several of whom are in prison there. Tollette is early in his appeals process, but the realities of death row are ubiquitous.

"That's always hanging over everything we do," Pickerstein said. "It creates a pall when I meet with him, to know at the end of the road that there's not just a threat of execution but there's a real possibility of execution."

Pickerstein is not working alone on the case. Besides Pepe & Hazard's emotional and financial support, he's getting legal assistance from the Georgia Resource Center, a federally funded group of four lawyers in Atlanta that focuses on capital defense.

Boston attorney Laurie Carafone said that when working with the ABA's program, a volunteer lawyer can expect to be connected with skillful local attorneys. The other guaranteed element is the amount of time a volunteer lawyer spends familiarizing herself with the inmate's file.

"That takes a lot of dedication," said Carafone, of litigation boutique Dwyer & Collora. "It's a matter of organizing and getting your head wrapped around this person's whole life."

Battle For Breton

Carafone is part of team at her law firm that has been representing Connecticut death row inmate Robert Breton since 2004. Breton has been on death row since 1989 after he was convicted of stabbing his wife and 16-year-old son.

Carafone declined to reveal details of the case that led to her firm's decision that Breton had not received high-quality representation.

The firm has dedicated "tens of thousands of dollars in billable hours" to the case, but the time requirements ebb and flow as the appeals process dictates, Carafone said.

"A lot of it is writing and research," she noted. "That's the idea of having a firm involved because writing and research take a lot of man hours."

Dwyer & Collora is working with New Haven attorney Paula M. Montonye, who handles the post-conviction process for a half dozen death row inmates here and in Louisiana. Montonye, a veteran of the ABA death row project, said the difference between getting help from a big law firm on these appeals and working alone is "impossible to describe."

"The contribution of a law firm is incalculable and absolutely essential to this process," she noted. "As a lawyer, it doesn't get any more challenging. These are extremely involved, multi-faceted cases."

Montonye said the detail-oriented work is suited for firms with experience in complex litigation, and can result in discovering evidence that leads to claims of due process violations, suppressed evidence, ineffective representation, jury misconduct and police misconduct. Those are the primary reasons why an inmate would be removed from death row, Montonye said.

It can take several years of work to uncover that evidence. Montonye referenced the case of John Thompson, a Louisiana man who spent 16 years on death row for a murder he didn't commit. He was exonerated in 2003 after Montonye proved that the prosecutor withheld evidence that showed Thompson was innocent.

Pepe & Hazard and Dwyer & Collora are rare among New England law firms. Not many firms in the region participate in the ABA death penalty project, probably because "the death penalty is not in our culture," Montonye surmised. "Not every death penalty case gets a firm. That's the sad reality."

Montonye said her battles become personal because she believes the death penalty is an inherently political issue. Pickerstein, on the other hand, wants nothing to do with any political agendas as he works on Leon Tollette's behalf.

His motivations are simple. "Some states have the death penalty," he said, "and it should be imposed with due process of law." •