New York Law Journal

New York Attorneys Take on Capital Cases in South That Last Decades

Laura Haring

New York Law Journal


J. Christopher Jensen is one of several New York lawyers who have won victories for murder defendants who had been sentenced to death in southern states.
Two men who have spent a combined 44 years on death row in southern states have some reason for hope as the new year approaches. Attorneys for the men, including members of the New York bar who have donated hundreds of hours to their cases, finally have persuaded appellate courts to overturn their convictions.

For nearly 20 years, J. Christopher Jensen, an intellectual property partner at Cowan, Liebowitz & Latman, has worked to prove that his South Carolina client is innocent of raping and murdering an elderly woman for whom he had done odd jobs.

Edward Lee Elmore already had been on death row for 10 years when Mr. Jensen volunteered to take on his case.

After several unsuccessful appeals, Mr. Jensen helped to get Mr. Elmore's death sentence vacated in 2010 on the grounds that he was mentally retarded.

Last month, the U.S. Court of Appeals for the Fourth Circuit threw out Mr. Elmore's conviction, finding that his trial attorneys' failure to investigate the state's forensic evidence constituted ineffective assistance of counsel.

Similarly, the Tennessee Criminal Appeals Court recently ordered that Erskine Leroy Johnson should receive a new trial after Cleary Gottlieb Steen & Hamilton intellectual property counsel David Herrington successfully argued that newly discovered evidence might have changed the outcome if it had been available at Mr. Johnson's 1985 murder trial.

Mr. Johnson, who has since changed his name to Ndume Olatushani, claims he was in St. Louis attending his mother's birthday party on the day the Memphis murder occurred. Cleary Gottlieb first became involved in the case in 1996.

Both defendants remain incarcerated, waiting on the prosecution's next move. Mr. Johnson, who was removed from death row in 2004, is awaiting not only the state's decision on whether to re-try him, but also the outcome of a parole hearing he had in September.

None of the attorneys involved in the two cases had previous experience with death penalty litigation before volunteering, and all say they have forged a strong bond with their clients after more than a decade of representation.

Richard Dieter, executive director of the Death Penalty Information Center, a non-profit group that compiles data on the death penalty in the United States, said the two cases have been unusually protracted. Citing data from 2009, he said the average time between sentencing and execution is 14 years.

According to the NAACP Legal Defense and Educational Fund, there are more than 3,250 inmates on death row in 34 states. As of Jan. 1, 2011, there were 63 inmates on death row in South Carolina and 87 in Tennessee.

Mr. Dieter said 80 percent of executions occur in the South.

Southern states often have a shortage of experienced attorneys to represent death penalty cases. In a minority of cases, Mr. Dieter said, defendants are represented on appeal by out-of-state attorneys, many from large firms in New York, Chicago and Washington, D.C.

"Firms see it as a positive thing for the firm, for the profession and for new associates, so they really want to make a difference in these cases," he said.

Though outside attorneys often have no background in death penalty, or even criminal, cases, Mr. Dieter said the work required is not unlike other areas of law.

"In the appellate world, at least, the procedures are similar," he said, adding that the drawn-out nature of these cases provides an opportunity for lawyers to become well-versed in the law. "You have to become immersed in the case."

Mr. Dieter noted that a recent Death Penalty Information Center survey found that, for the first time in 35 years, the number of new death sentences has dipped below 100 to 76. This represents a 75 percent drop compared to the number of new death sentences seen during the 1990s, he said.

"People are walking out after 20 years [in jail] because science showed the criminal justice system got it wrong," Mr. Dieter said. "That has shaken the faith in the death penalty so juries are willing to convict but not give a death sentence as much."

@|Laura Haring can be contacted at
death penalty chart