Dale Baich knows about life on death row – for the past 15 years, he has been defending Arizona’s death-row inmates in federal court.
He leads the Habeas Unit of the Federal Public Defender’s Office for the District of Arizona and his work gains widespread attention whenever the state executes someone.
This time, as with any other execution, he and his staff spent the dwindling hours of Jeff Landrigan’s life working around the clock to spare him. One of their arguments was that there were too many questions surrounding the state’s acquisition of the powerful sedative, sodium thiopental, the first drug given in the lethal cocktail, and the execution should be delayed until all the questions were answered.
There was no last-second call from the governor. Landrigan was executed on Oct. 26 at 10:26 p.m.
Baich sat down with the ~Arizona Capitol Times~ on Nov. 5 to discuss capital punishment and defending death-row inmates. He spoke about continuing the fight to extract information from the state about its supply of sodium thiopental, life on death row and getting to know his clients personally. He also spoke about finding time to follow his second career of sorts – producing blues recordings.
We’ve had ~Ring v. Arizona~, and we’ve recently had the argument that the (lethal injection) method of execution was cruel and unusual punishment and there was the argument that prolonged stays on death row were cruel and unusual. So what is the next phase in capital defense?
Right now, because of the shortage of sodium thiopental, people are focusing on where the states got the drugs. So that’s an issue folks around the country are looking at today.
Did the Landrigan case really expose that?
The issue first was raised in May in an Ohio case where the state announced it did not have enough sodium thiopental for scheduled executions there. The state eventually found it, but what came up was that Hospira, the only manufacturer of the drug in the U.S., had a shortage, or there was a shortage of Hospira-produced product and states started to scramble to try and find sodium thiopental. It wasn’t until September that the state of Arizona said it was looking to other states and other countries to try and find the drug. So as far as we know, Landrigan was the first person who was executed with a non-FDA approved drug and a drug from a foreign source.
We’ve spoken in the past and you’re very passionately against the death penalty. Which came first, that passion against the death penalty or doing the work?
What’s important in doing this work is I represent individual clients and those clients have issues in their cases that go to the constitutionality of the death penalty in their case. I just want to be clear that my role as a lawyer is not to work for the abolition of the death penalty, my job as a lawyer is to provide the best representation for my client in that particular case and that’s how I approach these cases.
Give us a brief synopsis of how you go about your work from when the case hits your desk until you’re down in Florence (at the death chamber).
Our cases come into the office about 10 years after the conviction and death sentence, and one of the first things we do is we meet with our client. The other thing we do is go out and investigate the case, and what we sometimes learn is the lawyer who had the case at trial maybe did not do a complete investigation and there’s important information that he failed to discover.
Jeff Landrigan’s case is a perfect example. The lawyer in that case really did no investigation to prepare for the sentencing phase of the proceeding, and when it came time for the judge to impose the sentence there was nothing for her to weigh against the aggravating circumstances. So under the law she had to give the death sentence.
What we found out later was the judge was looking for mitigation and the mitigation we developed during the habeas proceedings would have made a difference to her. She stated at the clemency hearing she would have given Mr. Landrigan a life sentence.
You mentioned earlier that your office has 67 clients right now. Are there any right now that you believe are innocent?
I think that in many of the cases the question is whether the death sentence is appropriate, whether it goes to the evidence that was offered at trial related to guilt or the evidence that may have mitigated the death sentence.
So we don’t have anybody in your eyes right now sitting on death row who is totally innocent like Ray Krone? (Arizona prisoner who was exonerated by DNA testing after serving 10 years in prison, two on death row, for a 1991 murder of a bartender)
There are some cases that we’re involved in where innocence is an issue and we’re aggressively pursuing those cases.
Care to name names?
The Barry Jones case comes to mind. One of my colleagues in Tucson is working on that case.
Is there anyone who you defended who was executed and you thought was innocent?
I have had questions whether the state proved the client was guilty. I can’t know whether someone is innocent or not. What I have to look at is the evidence that was presented at trial and maybe in the eyes of the jury the state met its burden, but evidence and information that comes out after that verdict makes me question whether the person was in fact guilty.
When you defend people on death row, how well do you get to know them?
If you represent someone for 14 years like we did in the case of Jeff Landrigan, you get to know the person quite well. And what the public needs to understand is these guys are people, they’re human beings. Many of them did something very, very horrible, but also most of them are very, very damaged, mentally impaired.
What causes someone to go out and commit a horrible, horrible crime? It’s not a normal person who would do that, and what we’re learning is that a lot of these guys have brain dysfunction as a result of either genetics or fetal alcohol and they come into the world with a brain different than the normal brain, which then leads them to make very impulsive and bad decisions.
Has there ever been anybody who you thought deserved the death penalty?
I haven’t seen a case like that because I really dive into the case and get an understanding of why this person did what he did. And I think if someone took the time to get that understanding, you know, they may reach the same conclusion as I do. Not that there’s an excuse for what someone did, but there’s an explanation and is it because of brain injury or is it because of some other kind of mental impairment.
What about medication and treatment? Would that help the person? And the other thing is we’re not advocating that all of these guys should be set free. A lot of our clients would do well in the prison environment. They need that structure that when one is in an open society isn’t there. If the brain doesn’t work properly, how do you provide structure for that person to function? In a lot of cases, prison would provide that structure.
Have you kept track of how many of your clients have been executed? How many have you witnessed, and how does it affect you?
I have witnessed three executions. The first one was in 1996 in Nebraska. His name was john Jubert and he was executed by electrocution. In May, one of our clients, Michael Beuke was executed in Ohio and I witnessed that. And Mr. Landrigan’s execution on the 26th of October. It’s very sobering to see that.
Do you ever testify at the state Capitol? Are you kept up to speed on any new death-penalty laws that are coming forward?
I have not been asked to appear at the Capitol to testify on any death-penalty issues.
Have you heard whether anything is coming up this next legislative session?
I have not. One of the things, it’s not exactly testifying, but one of the things that we’ve been doing recently is if a trial-level defendant has an offer on the table, some lawyers and some judges will bring us in as part of settlement discussions because a person has a very important choice to make and what he may not know about is life on death row.
We meet with the person either at the jail or in open court and explain what the conditions are like on death row, how the appellate process is going to work, what kind of privileges a death-row prisoner has compared to a prisoner in general population. In a number of cases that was helpful and important in the decision-making process. The defendant can then sit down with his lawyer and his family and talk about these issues and has more information.
How long have you been doing that?
We’ve been doing that probably for the last two or three years. Judge Tim Ryan was the first to call us over, but sometimes defense lawyers will call us and we will meet the lawyer and his or her client at the jail and provide that information as well.
Does the state ever object to that?
No, in fact in one or two cases the state was in the courtroom when I made the presentation.
So when you say it helped in the decision making, which way did they go?
I think in 85 percent of the cases the trial defendants accepted the plea offer.
Life without parole?
Some of the cases were actually for a term of years. The state was willing to offer a term of years.
You know, it’s interesting, 20 some years ago Jeff Landrigan was offered a plea deal. Plead guilty to second-degree and his time would have ran concurrent with his time in Oklahoma and the state was willing to send him back to Oklahoma to finish his sentence there.
For whatever reason, Jeff turned the deal down. If his lawyer had worked harder with him or if someone was able to come in and talk about the conditions on death row and what the appellate process would be like and the roller-coaster ride of the appellate process, maybe he would have made a different decision and would have been alive today.
What do you tell them? What is life like on death row?
The prisoners are locked down for 23 hours a day for three days a week, and 24 hours a day for four days a week. They get three hours recreation a week, which means going out into a caged-in courtyard by themselves, and I think the only piece of equipment there for purposes of exercising is a little rubber ball. There are no jobs on death row. There is no human contact except for when the corrections officers place handcuffs on the prisoners. There is no interaction with other prisoners, so it is a very solitary lifestyle.
What’s the appellate process like. When you say roller coaster, do you mean an emotional roller coaster, what do you mean?
What’s really difficult about litigating the cases once they get to the habeas corpus stage is that we go out and do our investigation and we uncover either evidence related to guilt or evidence related to sentencing. Then because of procedural bars erected by Congress, federal courts in most instances do not look at the merits of our cases or the claims that we raise.
Typically, the district courts in Arizona do not conduct evidentiary hearings, and looking at all death-penalty cases since 1973 the federal district court in Arizona has granted relief in about 5 percent of the cases.
When the cases go to the 9th Circuit, there is a 58 percent reversal rate.
Again, this is going back to 1973. If the client wins in the 9th Circuit, in some instances the U.S. Supreme Court will take the case. And in a number of cases, the relief that was allowed is taken back. It happened to Landrigan in 2007, and it happened to a number of other clients as well.
I understand you’re a blues aficionado. Who are your favorite artists?
I have to say Dave Riley and Bob Corritore and Tomcat Courtney because they’re on my record label. I have a small record label, I’ve produced six blues CDs, so they would be my favorites.
Where’s the best place in the Valley to listen to blues?
By far, the Rhythm Room. Almost any night of the week you can hear great blues there. Bob Corritore has done a really good job of promoting local talent as well as bringing in national acts.
How do you find time to produce?
There’s 24 hours in a day. I’m usually up by 4 or 4:30 in the morning and go to bed about 11 at night. I think it’s really important to try and have some balance. The work in death-penalty cases is very important and there’s a lot of complexity to it. Its emotionally taxing, so it’s important to try and find something outside of the work to balance.