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Bar News - January 18, 2008


NH Attorneys Represent Three on Georgia’s Death Row

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Editor’s Note: This is the second and final part of a story about three Death Row inmates in Butts County, GA, who are being represented by NH attorneys. Part one can be found in the Feb. 8 issue of Bar News.

The 107 men on death row in Jackson, Georgia have a lot in common: they have all been charged and convicted of murder; they sit in the same wing of the Georgia Diagnostic and Classification Center; and they all live within yards of the execution chamber where many of them will die. But three of those men share something more: they are represented by New Hampshire attorneys.

           

Andru Volinsky of Manchester firm Bernstein, Shur, Sawyer & Nelson has represented Jimmy Fletcher Meders since 1989. Larry Vogelman of Nixon, Raiche, Vogelman in Manchester, has represented Raymond Burgess since 1996. And a team of attorneys from Nelson, Kinder, Mosseau & Saturley has represented David Scott Franks since 2006. All were sentenced to die by lethal injection and reside at the facility in Jackson.

           

States with active capital punishment systems often draw in attorneys from out-of-state and Georgia is no different. The most active systems lack sufficient funding for indigent defendants, creating the need for outside groups to bring support. Georgia’s system has proven to be particularly troublesome, as found by the American Bar Association when they studied Georgia’s capital punishment system and found several problems, including:

 

  • Georgia’s statutory law, though it provides a statewide public defender program during trial and direct appeal stages of a case, does not provide funds for defense on state or federal habeas corpus hearings.
  • Georgia’s statutory law contains only minimal qualification requirements for attorneys handling death penalty cases.
  • The level of funding provided by the state is not enough to handle the number of death penalty cases in the state.

 

Accordingly, the ABA, the Southern Center for Human Rights, the American Civil Liberties Union and the Georgia Resource Center have all developed programs geared towards bringing qualified attorneys to represent capital murder defendants in Georgia and other states that have active capital punishment systems.

           

These programs include the recruitment of attorneys for pro bono work. Both Andru Volinsky and Larry Vogelman were recruited by Stephen Bright, director of the Southern Center for Human Rights, an Atlanta-based, public interest legal project that provides legal representation to those facing the death penalty and to prisoners challenging unconstitutional conditions in prisons and jails throughout the South.

           

Volinsky, who has participated in capital appeals in six previous cases throughout the South, was a private practitioner in New Hampshire when his former professor, Bright, called him and asked him if he was interested in the Meders case. For Volinsky it was an easy decision.

           

“The cases in which defendants are sentenced to death are not fairly handled,” said Volinsky. “It’s not fair. I have some skills and resources and have a responsibility in my small way to try to re-balance the scales of justice.”

           

Vogelman, who has worked on several capital cases, was deputy director of the NH Public Defender’s office when Bright called on him to take a pro bono capital case. In 1996, when he entered private practice, he took the Burgess case.

           

“Steven Bright came to me and told me that the day I went into private practice, he would make sure I got a pro bono death penalty case,” said Vogelman. “Sure enough, the Monday morning that I arrived at my new office, there were seventeen boxes of files [from the Burgess case] waiting for me.”

           

The team from Nelson, Kinder was recruited by the American Bar Association, after managing partner Richard Nelson attended an ABA Project-sponsored group that puts volunteer lawyers together with unrepresented inmates awaiting execution of sentence. Several attorneys from the firm volunteered and are now working as assisting counsel with the Georgia Resource Center, a firm that represents inmates in capital cases and is often overworked.

           

 “It seemed inconceivable to me that American citizens could be forced to confront the judicial system at that stage without benefit of counsel. I felt that, as a firm, we had appropriate skills that would allow us to do a good job on these cases,” said Nelson. “While we don’t do criminal defense work here to any significant degree, our lawyers do include several former prosecutors and criminal defense lawyers.”

           

One of those former prosecutors is John Kissinger, Jr., who, when working as a prosecutor for the NH Attorney General’s office, helped prosecute Gordon Perry, the man charged with capital murder in the 1997 killing of an Epsom police officer. The case later ended with a plea bargain on Perry’s part to avoid a death sentence. Today, Kissinger works for Nelson-Kinder and is helping defend Franks in his capital case.

           

“I’m not personally opposed to the death penalty, but I was greatly bothered when I read the trial transcripts of David [Franks’] trial,” said Kissinger. “I firmly believe that anybody facing capital charges deserves to have the best representation possible.”

           

One of the former criminal defense attorneys is Nick Holmes, now an attorney for Nelson, Kinder. He worked at the Public Defender’s office and also worked as a private criminal defense attorney. He has represented a man charged with first-degree murder and the defendant was eventually let go after three mistrials.

           

But regardless of which side of the court these attorneys sat on before taking these cases, they now face similar legal issues. All three defendants, according to their attorneys, face mental health and mental capacity problems, problems that become harder to bring to the attention of judicial panels as each phase of the appeals process comes to a close.

           

They also have to work on little or no assistance from outside parties. The team from Nelson, Kinder is backed by the firm, which is otherwise operating completely pro bono, though the team does get free Westlaw access from the ABA. Both Andru Volinsky and Larry Vogelman are operating with co-counsel; Volinsky has private co-counsel from Atlanta who is also working pro bono and Vogelman’s co-counsel is with the federal defender in Georgia.

           

The work, however, is not only from a distance, writing briefs and filing motions. All of the attorneys have traveled to Jackson, both to meet with their clients and for hearings at the courtroom in the facility. For most of them, it is a sobering experience.

           

“One of the strangest things for me is that the death row in Georgia is in a separate wing. In the visiting area in death row, you see other prisoners and you know that every person in a prison outfit that I see that day has been sentenced to death,” said Vogelman. “Not one out of a hundred, but one hundred percent of the inmates that I see when I visit my client have been sentenced to death.”

           

Editor’s Note: In the next issue of Bar News we will bring you a closer look at each defendant and at how these legal teams are working to ensure that their clients get the fair defense and representation that they deserve.

           

           

 

 

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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