July 20, 2005
On Pro Bono Work
Posted by Victor Fleischer

Many Conglomerate readers know that before I entered law teaching, I worked at a big firm in New York.  What may surprise some of you is that I was also a death penalty lawyer, sort of.  The very first court paper I signed as a lawyer was a motion for a stay of execution.  I once wrote a little article for law.com urging big-firm associates to do death penalty work, even if they happen to be in the tax or corporate department, as I was.  You can read the article here.

The good news I received yesterday was that the sentence and conviction were just overturned.  Details below the fold.

I began working on the case in 1999, shortly after arriving at Davis Polk.  Our client, Larry Jenkins, was about as sympathetic a client as you could imagine for this kind of case -- 17 years old (and in 9th grade) at the time of the crime, mentally retarded, African-American, in small-town Georgia ... basically a sweet kid who got dragged into trouble by a violent, older drug dealer with a rap sheet a mile long.  The crime itself was horribly tragic -- a mother and son kidnapped from the family business and shot to death by some railroad tracks.  But the criminal justice system made things worse, not better, by pinning the blame on Larry Jenkins instead of actually finding out what happened. 

And so we began the habeas case in state court in Georgia.   

I'd planned to work on the case at least until we got through the first stage of state court habeas.  I'm glad I didn't stick to that plan -- a friend just sent me a copy of the order, dated yesterday afternoon, about four years after I left DPW. 

The death sentence had come off the table last year with Roper v. Simmons, which held that juvenile offenders cannot be executed.  The judge's order yesterday overturned the conviction, finding ineffective assistance of counsel (including a conflict of interest) and significant Brady violations (i.e. failure by the prosecution to turn over important exculpatory evidence).  Now the state will appeal to the Georgia Supreme Court, after which the case will likely be sent back for retrial, eleven-plus years after the crime took place. 

I found the judge's comments concluding her opinion especially noteworthy.  She wrote:

The Court is cognizant of the impact its decision will have upon the family of the victims who have suffered a grievous and searing loss and who have endured many years of pain, confusion, anger, sadness, frustration and lack of closure.  The family will now be subjected to further uncertainty and lack of conclusion for an indeterminate period of time.  In the Court's judgment the deceased Ralston victims and their family have been ill served by the criminal justice system upon which they must necessarily depend for redress of the brutal crimes committed against them.  The Court sincerely regrets the pain inflicted upon them by the failure of the system to operate correctly and lawfully.  Their outrage at the process is clearly understandable.

*    *    *    

So my unsolicited advice to big firm associates out there --- don't be afraid of a little (or a lot of) pro bono work.  There will always be more time to work on another financing or merger.  The opportunity to work for someone like Larry Jenkins ... that's rare.


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