Florida's Death Penalty System and Public Defense Work
Going into Private Practice
The Stories of Death Sentenced Clients and the Issue of if anyone is "Bad"
Individual Cases and Problems of the Entire System
Willie Darden's Case and Failure of Alibi Story Due to Prosecution's Misconduct
The Laws Regarding Timing of Evidence for Innocence
The Case of Buford White
of "Interview with James Lohman."
HINZ-FOLEY: Would you like to tell us a little bit about your childhood, where you came from, where you were born?
JAMES LOHMAN: Sure. I was born in December 1951, in New York City and I spent the first nineteen years of my life in New York City and the immediate
I would say that I grew up in a sort of liberal Jewish northeastern family, where my parents were A.C.L.U. members and I sort of got as my starting point,
philosophically and politically, was a fairly liberal perspective.
I went to a high school that was very much encouraged political activism, and community involvement, and so I was always politically active and interested in
social issues. I would say that in the late sixties, during the Vietnam era, I graduated high school in 1969, so that was the height of the Vietnam War, and I went to Columbia University,
where the year before I went they had pretty much come close to burning down the whole university, so there was still a lot of sort of smoldering political
activism on campus at that time, although it was a little over the peak at that point. And then, I dropped out of college in 71, and just sort of went on this odyssey to find other
And I went back to school, except for one semester in seventy-three, back to Columbia, and then I dropped out again. And I ended up in north Florida, in
Tallahassee, Florida, in 1974, and around 1976 or so I decided that I had gotten very interested in prisons as a humans rights issue and went back to school at Florida State University where
they have a major criminology program. I got my undergraduate degree in criminology.
I did some studies during my undergraduate degree of prison conditions and when I was lucky enough in my last year or so there to become involved with a
thing called the Center for Participant Education at Florida State, which was a free university, where we were offered— anyone could teach a class to the community, anyone who had a skill or
interest could teach any class they wanted to. And so we had about a hundred classes per semester that were offered to the community, no charge and we also would put on a film series and bring
in guest speakers about international issues and domestic/political issues and social issues, and so my last year in school I was the director of that program, and that was a great experience
of also being involved in all sorts of issues: Central America, poverty issues in the United States.
And so when I got my degree, almost immediately when I graduated, I was approached by a remarkable person named Scharlette Holderman, who was probably the
mother of mitigation and death penalty work. She has trained hundreds people in how to interview family members and develop mitigation and psychological issues. She, at that time, was the
director of a small nonprofit in Tallahassee called the Florida Clearinghouse in Criminal Justice, and there has actually been quite a bit of stuff written about that organization.
There is a whole book about it really called, Among the Lowest of the Dead, I don't know if you've seen that book, by David von Drehle, he is a Washington
Post writer. He wrote a book, pretty much about that office.
Half of the book is really about that office, and Scharlette's work. So Scharlette asked me if I would come and work with her. So that was in May of 1979, I
went to go work with her there, and that happened to the month of the first execution in Florida. And she was pretty sure that was going to be an execution that month. I went to work on May
first, and I sat down with her and she said, "We're going to probably have an execution in a few weeks. Organize a protest."
And so that was my first assignment, really. And we did in fact have an execution May 25, 1979. It was the first execution in Florida since the death penalty
came back, and it was the first non-volunteer execution in the United States. There had been two executions before that in the entire country, both of whom had given up their appeals. So this
was the first guy actually fighting his execution to be executed.
His name was John Spenkelink, and it was a very famous case at the time. I should also mention that a couple of years before that, I had gotten involved in
the death penalty issue in probably 1976 or so when I was an undergraduate.
The United States Supreme Court of 1976 approved Florida's death penalty. They approved it in several states, North Carolina, Florida, Georgia, and right
around that time, there was some discussion about the fact that the death penalty was back and I noticed a poster on campus saying, "Meeting of Tallahassee citizens against the death
So I started going to those meetings in about 1976 or so, which was basically the beginnings of trying to organize against the death penalty down in Florida.
So in seventy-nine, we geared up for this execution. We had some massive protests at the state capitol around his execution.
And actually that execution became a symbol for the national anti-death penalty movement because he was the first person to fight his execution. He was
executed and Bob Graham, who is actually a fairly progressive governor and senator, was the governor at the time, but because he had maintained this very mechanistic, robotic approach towards
executing this guy, he became a symbol of the death penalty nationally.
And for several years, death penalty activities around the United States targeted Bob Graham as a symbol for pro-death penalty.
In retrospect, it turns out he was actually relatively moderate on the death penalty. He actually granted six commutations while he was governor. Since then,
not one has been granted in Florida. So it is kind of ironic that he was set up as this sort of villainous pro-death penalty person, and in actuality, he was actually relatively— he never took
any— he always said, "I don't take any pleasure in carrying these out. This is my job," etcetera and so forth.
One other sort of activist thing that I think is very interesting before I get into maybe why I became a lawyer and got involved in more in the direct
representation of cases.
At the 1980 Democratic convention, Jimmy Carter was up for reelection and re-nomination, and he was challenged by Teddy Kennedy as an insurgent, progressive
insurgency within the Democratic Party.
We read it some months, a couple of months before the convention. It was announced that Bob Graham would be making the nominating speech for re-nominating
Jimmy Carter to be president. This was now maybe one year after the Spenkelink execution, so this light bulb went on in my head that maybe we should organize a protest at the convention, an
anti-death penalty protest during Graham's speech.
And so I spent the next two months pretty much organizing a protest event at the Democratic National Convention, which was kind of guerrilla, Yippie-type
action. I used as my base Kennedy delegates, because I knew that probably Carter delegates were not going to participate in the protest during the nomination speech of their candidate.
So I started identifying Kennedy delegates all over the country and getting in touch with them and asking them if they would be willing to participate in an
anti-death penalty action during Graham's speech. Of course most of the Kennedy delegates were strongly anti-death penalty and they were eager to participate in something like this, so we made
black executioner hoods, like hundreds of black executioner hoods, and reproduced pictures of John Spenkelink, and during Graham's speech, several hundred delegates to the convention put on
black hoods and stood up and just pointed at Bob Graham and held pictures of John Spenkelink.
And we also brought Spenkelink's mother to the convention, who was this seventy-year-old, very obese woman from California, a sort of very working class poor
woman. Her son-in-law and daughter drove her from southern California to New York, where the convention was.
It was in Madison Square Garden in New York City, and my friend and I who were putting this whole thing together literally stood out on the sidewalk in front
of Madison Square Garden waiting for their beat-up old station wagon to come in from California. We had gotten people, some delegates to give us their I.D.s so we could actually get into the
convention as delegates, and we had passes for Spenkelink's mother, Lois, and so we got her into the convention and she weighed about three-hundred pounds and could barely walk, so this was
kind of, I describe it as trying to smuggle a refrigerator into the convention. And so we got her seated in the New York delegation with this gigantic sign that said, "Bob Graham Killed My
And so Walter Cronkite, when he introduced the nomination speech on CBS News, gave this whole, one or two minute introduction about how Bob Graham had
executed John Spenkelink and it was very controversial and all the newspapers were kneeling down at Lois Spenkelink's chair, interviewing her and Graham who was actually, even in 1980
considered a potential presidential candidate, which he was actually as recently as probably eight years ago he ran for president, several times he has run for president.
And the headline in The Miami Herald about his speech, instead of, "Our wonderful governor nominates Jimmy Carter," was— God, I wish I could remember the
actual headline. It was something like, "Graham Bombs at Convention" or something like that, and there was a picture of Lois Spenkelink holding this big sign that said, "Bob Graham Killed My
So we felt we were pretty successful about the protest. Of course, all it did was increase Bob Graham's popularity. He was overwhelmingly re-elected as
governor and largely because he was seen as very pro-death penalty.
So we actually advanced his career. I take a lot of credit for advancing Bob Graham's political career. So, in about 1983, actually during the next few years
working with Scharlette, I worked on prison condition cases, did a lot of work going into the worst prisons in Florida and trying to find out what kinds of abuses were occurring in the prison
systems: beatings of prisoners, locking up prisoners in isolation for literally six or seven years with no contact with the outside world, some really horrible things that were going on.
And we would do a lot of media around that, exposing abuses in the prison system, and we were kind of these gadflies to the prison system and they just hated
us, and we literally were afraid our car would blow up going home from the prison sometimes, and the friendlier guards, when we would leave, they would say, "You be careful driving home," and
look me right in the eye.
And I was thinking, "Do you know something I don't know?" Because this was really Ku Klux Klan country where these prisons are, which is true in almost any
state, but where Florida has this whole thing I call the Valley of Death, where there are six or seven— the equivalent of Huntsville in Texas, where there is just institutions everywhere and
the entire economy for hundreds of miles, it's all built around incarceration and executions.
So during those few years, I worked on death penalty cases with Scharlette, as well as organizing around executions.
Actually the next execution in Florida wasn't until four and a half years later, that was our second execution and that was in November of 1983, which was
actually my first semester at law school.That was a guy named Bob Sullivan who was a very, really highly intelligent guy.
One the things I should also say about Spenkelink that I think that was so powerful was he was a very beloved person on Death Row. He was this sort of
redneck-ish guy, but he was totally non-racist. Like his best friends on Death Row were Black and he was really beloved by everyone on the row and all their families.
That was one of the things that made it personally so compelling to people, he was a very interesting guy, was very likeable person.
Sullivan, who was the next execution in November 1983, he was also kind of like that. He was not as personable as John, but he was very smart. He did a lot
of work on his case and he was very active in promoting his own case.
He was Catholic and in fact, one of the amazing things about his execution was he had actually gotten the Pope to intervene on his behalf. Through his own
efforts, he contacted clergy and worked his way up through the Catholic hierarchy to where the Pope wrote a letter to the governor of Florida saying, "Please do not execute this man."
And so we organized some massive protests around his execution also that consisted of several hundred people camping out at the governor's mansion in
Tallahassee overnight, and it was a really moving experience. The very famous peace activist and antiwar person, Daniel Berrigan, Father Daniel Berrigan came to Tallahassee for a few days to
participate in these protests.I got the pleasure of spending a couple of days with him. He was just totally an inspirational character.
I remember the night before the execution, before Sullivan's execution, there were probably one hundred and fifty people at the governor's mansion singing
songs and banging on this cast iron fence with tire irons, just making this huge racket, and at about midnight, or maybe ten p.m., out comes Bob Graham, the governor to talk to the crowd.
And it just drove me crazy because I thought, "This is such a beautiful political move," because he was the consummate politician, really. His way of dealing
with this was to come out and try to quell the mob by showing how accessible and reasonable he was.
So he came out and all the cameras were out there, it was ten o'clock at night, and this dark, the lights were all shining on him, and this crowd of all
these protesters, all these people that I'd worked with for five years organizing protests, were standing around in this semi-circle, kind of mesmerized that the governor was coming out to talk
to them, and he had them in the palm of his hand.
I went over and I sat down on the curb and I started crying, because I was so upset that he had gotten the upper hand. Daniel Berrigan came over and sat down
next to me and he put his arm around me and it he said, "It's okay. I've seen far worse than him." And I know he was thinking of L.B.J. and the Vietnam War and all the things he had been
He was arrested dozens and dozens of times in protests. It was just so comforting to know that this guy who had been through so much, who had fought in so
many struggles in the civil rights movement, was just putting it in perspective, this is just one more politician, "It's okay, this too shall pass." And it was a really incredible moment for
me. So that was my first semester at law school. Needless to say, I didn't spend a whole lot of time on my studies. I was organizing protests and working on death penalty cases and whenever I
could find the time I would read my assignments and go to class. So the first semester was really rough for me. In fact, I was still working with Scharlette full time at the Florida
Clearinghouse of Criminal Justice and going to law school. We had written an article in our newsletter about the parole commission, and we had mentioned a few parole interviewers who had never
been on parole, which we mentioned them by name and they sued us. So I had to miss a week of my first semester at law school to go to trial to be in a trial, a libel trial, that we were sued by
the parole commission, which fortunately we won the case, but missing the whole week of work of my first semester of law school was, I was on the verge of dropping out at that point,
I really was. I thought, "I can't do this, this is just a mess." But how fortunate I hung in there and actually I think I was able to get through law school
because it was about the third priority in my life and that made it easier for me to get through it.
So during law school I worked on death penalty cases. In 1984 a remarkable person came to Tallahassee to head the legal efforts on behalf of guys on Death
Row and fighting their cases, a guy named Mark Olive.
He is probably one of a handful of the best death penalty lawyers in the country. At the time, that was 1984, so it was twenty-five years ago. He was kind of
a young lawyer, but still you could tell he was really incredibly dedicated. He ran a little law clinic at the law school, the Florida State University Law School. He had maybe eight students
who worked with him doing research on death penalty cases. So immediately I started doing that with him. Then, in 1985 Florida was one of the first states to actually fund, I won't say
adequately, but with a considerable amount of resources, an office, a public defender office just to represent the people who had been sentenced to death and lost their appeals, and doing what
was called post conviction. I don't know if you have studied the distinction between these different parts of the process. But post conviction is after the person's sentence, and they have lost
their one automatic appeal to the highest court of the state. There is this whole process called post conviction, where we try to undo all of that. In 1985, Florida opened an office called the
Office of Capital and Collateral Representatives, it sounds more like a loan company, but we didn't want it to sound like what it was. That opened in 1985 and it had probably a staff of eight
or ten full-time lawyers to actually do post conviction.
And the reason this is very interesting politically how this happened was for a year or two before that a number of executions had been scheduled and the
guys did not have lawyers.
At that time, it was much like Texas is now. Even though that was twenty-five years ago, Texas has gotten nowhere in those twenty-five years towards
providing lawyers. All we could do was try to buttonhole lawyers to do these cases for free. There was no provision for them to get paid in Florida, and so what happened around 1984 is a couple
of guys were scheduled for execution and they had no lawyers.
And the judges in those particular cases, the trial judges who had jurisdiction over the execution initially, refused to allow the executions to happen
because the guys had no lawyers.
And these were redneck judges, guys who were law and order pro-death penalty but they just simply said, "Look, I can't allow a man to be executed if he has
no lawyer." So the very pro attorney general of the state went into the legislature and said, "Folks, if we're going to be able to have executions in Florida, we're gonna have to give these
So the motivation for giving lawyers was to execute them, which is one of the anomalies of this whole process is that this institutionalization of lawyers
enables the executions, and that has kind of been paradox in the whole process, but all in all it slowed down executions. There would have been probably a lot more executions without lawyers,
and I think as lawyers we are able to create issues that slow down the process.
Hopefully we'll eliminate the process eventually by showing innocent people have been executed, that it's totally racist, and that it can't be done right. In
1972 when the United States Supreme Court brought the death penalty back, at least in principle, they said,
"It's okay to have a death penalty, but you have to do it fairly and you have to do it without arbitrariness and with rhyme and reason to it." They said in
1972 in the Furman case, "The death penalty is not cruel and unusual, if it's done fairly and if it's done with rhyme and reason, if there is a rational system for deciding who should get the
death penalty and who shouldn't."
Well that was now thirty-seven years ago, and clearly we have not been able to do that. It is so patently obvious that if we had a United States Supreme
Court that had one iota of honesty, they would look at it now and say, "We're not doing what we said in 1972 had to be done."
Thirty-seven years of experience to proves that we can't do it right, so we just shouldn't do it at all. Two justices had the integrity to say that: Thurgood
Marshall and William Brennan.
I'm not sure when exactly they started saying it, maybe in the mid 1980s. They refused to agree with any death sentence because they said, "Look, we said it
has to be done fairly and obviously it can't be, and so we are just against the death penalty in every single case."
But now there is nobody in the court who believes that. With so many years of Republicans and Democrats who are like Republicans picking people on the court,
we haven't been able to get any good justices on there for so long, any really solid humanitarian ones.
So in 1985, I graduated law school, and I went to work for that office. I worked there for several years as a full time public defender on capital
I took about a year and a half after that and went to work with a private lawyer in Jacksonville who did a lot of mostly criminal, a lot of prison rights
litigation and also had several death penalty cases and he brought me on board to work on those kinds of cases.
So I continued working mostly on prison rights issues, and some death penalty cases while I was with him. Then I went back in the very beginning of
1990, I moved back to Tallahassee, at which point there was a fairly new federally funded death penalty defender organization.
What happened in the late 1980s, the feds created a large pool of money to create the same kind of offices to do federal habeas.
Once state post conviction had been included, there was the remedy in federal court, and so the feds had created— had put something like twenty million
dollars available to states to create offices to represent death sentence people in federal habeas proceedings.
So in 1990, I went to work in that office in Florida. I worked there until 1993, and then in 1993 I went out and just became a solo, opened my own practice
in my house and since then, I have been doing nothing but death row representation out of my house basically, since 1993.
For six years, I did that in Tallahassee, Florida, and then I moved to New Orleans and I did it out of my apartment there, and in the very beginning of 2003,
Rachel and I moved to Austin and I have been doing it out of our house since we've been in Austin.
Right now I represent Death Row prisoners, two guys from Florida, a guy in Louisiana, a guy in Arkansas and one person on Death Row in Texas.
So I have five Death Row clients right now, and also in addition to those, in which I am lead council, I've got a bunch of other cases I'm helping out with,
consulting in some capacity, or I have been hired to actually work on mitigation or some other aspect of the case.
So since I've been a lawyer, I became a bar member in June of 1986, I'm only a member of the Florida bar, in all these other states I've been admitted
specially for this one case, and generally speaking, the courts will allow you to do that because there is a need for lawyers, so there is a special admission you get for just one case where
you don't have to be admitted to the bar of that state.
Since becoming a lawyer in 1986, I've probably worked on— represented twenty or thirty people, and worked on another twenty, and then since 1979, when I
first really started working on cases, I've probably worked on fifty or sixty cases.
I've known more than that with people on Death Row, who have talked to me about some aspect of their case. I could literally speak for weeks about all the
different cases I've worked on.
Every single one is an amazing story. I've never known a death penalty case that was not just an incredible story of the person's life that led up to this
incident, that gives you some insight into some aspect of society that is totally dysfunctional, or several aspects of our society that are totally dysfunctional, that contributed to just
exactly what your project is about, which is why is this country so violent. Why is society so violent? The answers to that are found in these cases, whether it's family violence,
which exists in almost every single case I've ever seen, where our guys were just kicked around, literally picked up when they were infants and just thrown
at the wall by stepfathers, had their heads stomped on, been locked in closets, been hung upside down.
I mean you name it and it's happened to these guys and there's a reason that people do these things. It doesn't just happen in a vacuum. It's not that
they're bad people. One of the things that has always struck me about getting to know people on Death Row, it sounds corny like it's glorifying, and it's really not glorifying at all, it's just
knowing them as people, I have never, never known anyone who was a bad person, and that's especially true of kids.
You hear people talk about juveniles, "Oh, he's just a bad kid." There's no such thing as a bad kid. There isn't any such thing. There is such a thing as a
kid whose been neglected, who has been shunted, who's been abused. They're not bad. They just are survivors.
They find how to survive, and maybe surviving means stealing. We have a case right now of a guy on Death Row in Texas who— Texas has some of the stupidest
quirks in its law. It's so obvious to me. I've only been working in Texas for six years, and there are certain things about the Texas process that make it very clear why there are so many
people on Death Row in Texas. One of them is that they have this idiotic provision in their statute, which says that the jury should vote to execute somebody if they believe he will be a danger
to society in the future.
Well, almost anybody who's killed somebody, they've already decided the person is guilty of first-degree murder. So the chances are, that person would be
deemed a danger to society in the future. They just killed somebody. So it almost automatically gives them the death penalty once they've been found guilty.
Anything that the person has ever done that could be considered bad is allowed to be admitted as proof that they would be a danger in the future.
So that this one guy who I represent—one of the main things they introduced against him, was when he was fourteen years old, he broke into a food bank and
stole a loaf of bread, when he was fourteen years old.
He did not have any food. And so this was used to represent that he would be a danger to society in the future. It's just unbelievable how much our society
hates kids. It just vilifies them for this kind of thing.
So anyway, I've never met a bad person in all of this, with the possible exception of prosecutors and judges, and some of the judges I've encountered are the
worst people I've ever— they're far worse than any client I've ever had.
They will execute people for political gain, as will prosecutors. They will— prosecutors will falsify evidence to advance their careers, which to me is worse
than any crime I've ever seen on Death Row.
I have to qualify that I've never met a bad person in this work by saying that prosecutors and judges are the exceptions to that. But among our clients,
they're just people who had horrible lives and tried to learn how to survive, and many of the crime were of situations that got out of hand, that did not start out to be a crime,
but due to their often terrible substance problems, which are just used to blot out the traumas of their early lives, they get into these situations and one
thing leads to another and something terrible happens.
But a lot of times, since I do post conviction, I don't often meet these people until they've already been on Death Row for five years. They haven't drank
for five years. They haven't smoked dope for five years or snorted cocaine or shot up heroin for five years, and they are really vastly different people from the people who committed the
They are thoughtful. They're sensitive. They're in touch with their feelings. They care about other people, and so we see these transformations that people
go through. We are really dealing with a very different person than the person who committed the crime, and can really see they're human and their good side in a way that maybe was not as
apparent as the time of their trial.
It certainly was not apparent to their lawyers, who nine times out of ten, don't even bother to figure out who they are or where they came from. It's too bad
that people can't get to know people on Death Row because I think if they did, they would really find it a lot harder to put them to death.
That's what we try to do, we try to humanize them in our work and present them as nice people worthy of life. We're not saying what they did was good, we're
not saying that the victim deserved it, ever.
We're just saying that this person deserves to live and I think that is one thing that is really forgotten a lot by the public is that we're not trying to
get this person off. They say, "Oh, so you're trying to get them off?"
And usually, no, we're not trying to get them off. If they committed the crime, if they have a lengthy criminal background, probably the best we're trying to
do is get them a life sentence. In most cases, that's all we're trying to do, is get the person a life sentence, which, another thing the public doesn't realize is that it's cheaper than
executions and also people would rather have a life sentence ultimately than be executed.
Most people, especially middle class people think, "I would rather die than do the rest of my life in prison." But with a lot of our clients, they've spent a
lot of their lives in prison already and they know how to function in prison. In fact, in many cases they're even more comfortable in prison than they are out of prison, which is a sad state of
affairs, but I've had homeless people call me up, homeless criminals call me up from jail, and say, "Hey, I'm back in jail."
And I said, "Oh really, what happened?" They said, "Well, I robbed somebody because I wanted to go to jail ‘cause I was hungry." And that's a sad, terrible
commentary on our society, that we have people who are so desperate for food and shelter that they will commit a crime just to go to jail so they can have food and shelter.
That is clearly a failure of our society rather than a failure of that individual. So really in our work we see, I guess there is Dostoevsky, I'm sure you've
heard the great quote, that you judge a society by its prisons and there are many variations on that quote: you can judge a society by the way the lowest people are treated, and I think that's
one of the reasons why a lot of people like me and Rachel and our colleagues work on this work is because it is a focal point for social ills or our society's failures. And we feel like if we
can work at the lowest level and bring that up then maybe that brings everything up. So, if we can humanize the most dehumanizing people, and create compassion for the people who have the least
compassion then maybe we can just kind of bring up the level of compassion in society. Unfortunately it doesn't always work that way because what I find in trying to get programs in prisons,
for example, like reading programs in prisons, or better living conditions for prisoners is, how are you going to get that for prisoners when you can't even get that for people on the
Are we going to have a reading program for prisoners when we don't have literacy programs for people who haven't committed a crime. But still, it's the same
approach. If we can get it done in there then maybe we can get it done on the outside. So that's how I got involved and what motivates us. If you want, I can talk about individual cases that
HINZ-FOLEY: I would love to hear about any individual cases or people you've become close to on Death Row, more specifics about your experience, that would
JAMES LOHMAN: You know, I think the cases that come to my mind are the ones that show the futility of the process, and the hopelessness of the entire
criminal justice process. I think anybody in the public who has ever been on a jury, or has ever sat in a courtroom for twenty minutes can see what a joke it is.
I mean, really, if you talk to someone who has served on jury duty, they invariably come away from that process saying, "I had no idea how ludicrous the
system is, how unfair judges are, how stupid the rules of evidence are."
And when I encounter someone who has had that experience, I say to them, "Can you imagine a system like that deciding that someone should die?" And they may
even be pro-death penalty. And they'll pause and they'll think, "Wow, I didn't think of that. We had a shop lifting case, we had a D.U.I. case and even there, I could see how crazy the court
Obviously, I would really have to pause to think that process could end up taking someone's life. We extol our criminal justice system as the greatest in the
world, just like we do all our other systems, our educational system, our health system, and we know that that's not true. Any informed person knows that we don't have the best health care
system, we don't have the best education system. And we don't have the best criminal justice system.
It's a political system. Judges in most places are elected. Prosecutors are elected and they're all about political advancement, and it's not about finding
the truth, the way it's supposed to be. In a lot of other countries in Europe, they're more advanced than us in many, many ways, they're professionals. Judges are just professional jurists,
they're not politicians. They don't have any vested interest in the outcome of the case. They sit on cases and they get a basis of comparison. Prosecutors are the same way. They're not
politicians, it's not an adversarial system.
Our so-called adversarial system is supposed to protest this side versus that side, and arrive at the truth¬—really isn't a very effective truth finding
process. The cases that I think of, having experience with, are the ones that really show the fallibility of that system. I could talk about really any case, my current cases or almost any case
I've ever worked on to show how stupid the process is, and how many loopholes and how fraught with potential for error the process is. But there are a couple that really stand out for
me. One was a guy who was executed in nineteen-eighty-nine, named Willie Darden. His case, it went to the United States Supreme Court many times, and it's unusual in the extent that he had
two full reviews by the United States Supreme Court. They heard the case on the merits, they evaluated the case on the merits, they heard oral argument on it, and they wrote long written
opinions about the case, and in both cases, he lost by a five to four vote.
One was on the issue of prosecutorial misconduct, because the case happened in nineteen-seventy-three in rural Florida, rural southwestern Florida, a very
conservative, notoriously racist community. And the crime was in nineteen-seventy-three, when really it was still the civil rights era practically speaking. The prosecutor called him an animal
in closing argument and all sorts of nasty, racially implicit expressions. The case went all the way to the United States Supreme Court on whether the prosecutor's argument was so improper that
he should get a new trial.
By a five to four vote, they voted no, it wasn't so improper. Then years later the case went up again in a five to four vote decision. The New York Times
even had an editorial called "Kill ‘Em, five to four."—The New York Times editorial page was the second time his case went—I got very involved in his case in the mid nineteen-eighties when he
was facing execution for one of the many times he had an execution date. I don't remember exactly how many times, at least five times he had an execution scheduled, and all but one of those
times, it might have been more than five times, maybe seven times. I was not actually working on his case the time he was executed, but I worked on it during an earlier scheduled
Interestingly, the first time his execution date was scheduled was the same time John Spenkelink was executed. They were both scheduled to be executed on May
twenty-first, nineteen-seventy-nine. Spenkelink was actually executed four days later on the twenty-fifth and Willie Darden got a stay of execution and was not executed until ten years
But, I worked on his case in probably nineteen-eighty-six, I think it was around nineteen-eighty-six, and I feel proved his innocence. The facts were very
interesting in the case. What happened was, a furniture store owner was robbed in his furniture store in Lakeland, Florida, and Willie Darden was arrested for it. He was an ex-con working—who
had been incarcerated at work release center, which meant that he was close to being released. He had a job he would go to, and then come back to the work release center to sleep. When he went
on trial in— think it was nineteen-seventy-four, there was a woman who had always said that she had an alibi for him. A total stranger. She was a white church lady. Willie was an African
And she never gave a thought to this—to Willie Darden—until she saw his picture in the paper that he was charged with this murder. I forget how long after,
it was probably just within a matter of days. And she said, "Wow, that's the guy who was at my house the other day." She immediately ran and told his lawyers that his car had broke down in
front of her house.
He came and knocked on her door and asked if he could use her phone to call a tow truck. It happened to be at the time this murder happened. So, she told his
lawyers this. They never called her. They never put her on the stand. She sat outside the courtroom waiting to testify and never did. The lawyer's explanation for this was that it wasn't really
an alibi because her time was not exactly when the murder happened. For one thing, the time of the murder, if you look at the police report in the case, is whited out. They actually whited out
when the call came in about the murder, and made it an hour different from the actual time the call came in. If you go back and look at the police logs you can see there was a one hour
When they found out about his alibi, they changed the time of the murder. We had to try and reconstruct this in nineteen-eighty-six, thirteen years after the
fact. I went to go see this woman. Her name was Christine Bass. She said, "I was so sure it wasn't him because I remember reading what time this happened and he was at my house, and in fact,
there are two other guys who could help us on this,
these two ministers, these two Baptist ministers who also knew about all this, because one of them had gone to the scene, because he was the minister for the
guy who was murdered, and his wife.
She is the first person he called, after the police." So she said, "You need to find this guy, Reverend Hess, because I didn't even know about these
ministers until a few years after the fact I was working in the chaplain's office at the hospital. And he came in and we started talking and somehow this case came up and he said, "I went to
the scene that day with my friend Reverend Sam Sparks, and so we know when it happened. Let's get in touch with Sam and see if we can reconstruct this."
So I went and found Reverend Hess and Reverend Sam Sparks, and we sat down and reconstructed what time it was.
And it was the weirdest thing because one of the them¬—and I can't remember the exact details of this—but they remembered what time it was, because one of
them distinctly remembered he had to be somewhere at a certain time, and what happened was the widow,
the woman whose husband was killed called Reverend Sparks and said—I think his name was Levi—"Oh, you know, Levi was just shot and the police are on their
way, and it's just horrible, can you please come over here, right away."
Sparks then called Reverend Hess and said, "Can you pick me up and we'll go over to this furniture store." For some reason, I think it was Hess remembered
that he had someplace he had to be at five o'clock that afternoon.
So he remembers he had to leave by—and I may have the times wrong—I don't remember exactly what they were, it may have been six o'clock that he had to be
somewhere, but it all turned out that it was during that hour, that earlier hour that Willie had been at this woman, Christine Bass's house, and not the hour that was whited out and put on the
So we presented affidavits from all three of these people to the courts in nineteen-eighty-six, and we got the traditional blow off that they give you when
you have new evidence that proves innocence that it could have been done earlier and there are a lot of people buried under this rationale.
The law is basically this — and this is a horrible, horrible procedural obstacle that we face in these cases. The court asks you why was this evidence not
developed the last time you were in front of me. And as I mentioned before, Willie got his first death warrant in nineteen-seventy-nine. That would have been the first opportunity to go back
and prove that the lawyers screwed up by not getting this all together and unless you can answer the question that it was impossible for this to have been done the last time, you're basically
shit out of luck.
They're going to say, "Sorry, no excuse, no reason why this could not have been figured out last time. There has to be some end to this process. How do we
know you didn't just hold out so as to stretch this out so you could come back ten years later with no evidence and just drag this out forever and ever, and there must be finality."
And so for all of those reasons, they just won't listen to it. And that's basically what happened with this evidence.
They said, "You haven't given a good reason why these answers couldn't have been found back in nineteen-seventy-nine."
We can get over the hurdle of saying, "Why weren't they used at trial" because we can say the trial lawyers blew it. Therefore, we should win a new trial
because ineffective assistance of his trial counsel. But there is no law that says you are entitled to a good post conviction lawyer.
There is law that says you're entitled to a good trial lawyer, but there is absolutely no constitutional right to a good post conviction lawyer.
So therefore, the guy can't say, "Well, my post conviction lawyer just screwed it up. Don't I get another chance?" You don't.
As of now, you don't get a new chance because of post conviction. You've got to get it done the first time, even if there was no provisional statute to
provide you a good lawyer.
It doesn't matter. It all makes no sense logically, it's just mumbo jumbo. So Willie Darden is basically executed, five to four, because we got the stuff, it
was too little, too late, is basically what the court said.
And I could tell you another ten cases where guys were executed, people I know, where there was too little, too late, where it probably would have saved the
person's life. Because in effect might have even gotten them out of prison, if it had been come up with sooner. And due to one reason or another, it wasn't found the first time.
There are cases where I was the person who should have found it the first time, and didn't, for whatever reason. And years later, somebody else found it, and
it was my fault that it wasn't found the first time, for whatever reason.
Maybe I had too many cases at the time. Maybe I just didn't think of it, whatever, whatever reason it was. Maybe we had limitations on resources, and there
is only so much we can do within that one month to try and win the case.
I mean, there was a guy who was executed in Florida, who the main witness against him was a guy who did the crime with him. And that guy testified that my
client took him to this victim's house, who was a prominent rural preacher's son, who sold pot, and they supposedly robbed this guy and killed him. The co-defendant testified, "I had never been
to this house before, it was all Mike's idea,"—and I don't mind mentioning their names, he's executed."
And then, years later, he was facing execution and they found these witnesses who had been to this guy's house with the codefendant before. These kind of
street level prostitutes, who said, "Oh no, Mike had brought us out to this guy's house several times to have sex with this guy, the preacher's son, and to get drugs from him and to bring drugs
And I had never found this when I worked on this case. And so, they said, "Too little, too late. Should have been done last time." So I have to bear that
burden of knowing that maybe, had I found this, when I represented the guy, that we would have won the case, or at least gotten him off Death Row. There are just so many aspects to it. Another
case that comes to mind that was probably the most grievous case for me, was a guy who was executed in 1987 named Buford White from Miami, Florida.
He grew up in absolutely the inner ghetto of Miami, in Liberty City, which is sort of their—one of their worst, poorest, dilapidated neighborhoods, they had
riots there, numerous times there have been riots there due to the conditions there. After the McDuffy verdict, after the cops beat up a guy in Liberty City, they had massive riots there.
This guy Buford White, it was a really sad story, he was the youngest of ten kids, on welfare, in the projects and he was an A-student.
Inexplicably. He was just a really smart, motivated kid. He was a star baseball player. And the head of parks for that section of Miami is a guy named Joe
And Joe's son was a major league baseball player named Warren Cromartie, who was a terrific professional baseball player. Joe Cromartie said, "I coached
Buford when he was a kid. He was major league baseball potential." And when he got to be about fourteen-years-old, somebody asked him to carry some heroin across, over to another street, just
to make twenty bucks.
Buford was poor, and needed to make twenty bucks. And he ends up becoming a heroin addict, drops out of school. No more baseball. No more A student. He
becomes a heroin addict and goes to prison. Never injured a person in his life. A little bit of a guy, a really, really nice guy.
To know him was to love him. Nobody said an unkind word about him. Ever. But he had a heroin problem and he did a couple of incarcerations for heroin. He got
out of prison. He had been out of prison for two months and had been doing—had not done any drugs, and these guys came to him and said, "Would you like to make 200 bucks?" And he said, "Sure."
And they said, "Well, what we need you to do is, there is a big coke deal going down, and we're gonna go and rob the drugs. We need you to hold the gun. Just come and hold the gun and we'll
give you two hundred bucks."
And Buford said, "Okay." So they went to the scene and what happened was, two of the guys knew all along that they were going to kill some people there. Four
people were killed. Two people were injured, they were shot but didn't die. So three of them were tried. There were four guys involved. The three guys got death sentences, and the fourth guy
who was the driver for this got nothing and testified against the other three and the two people who got shot and lived were also key witnesses as to what happened there.
What everybody testified at the trial, the driver testified that he and the other two guys knew they were going to shot people, but they didn't tell Buford
that. And the two people who survived said that when the shooting started, Buford started yelling at the other two guys, "What the hell are you doing? Are you crazy? Don't shot those people."
And the driver said when they got in the car to leave afterwards Buford was like screaming at these other two guys the whole time, that he was like close to tears, and shaking with fear and
couldn't believe this had happened." So they went to trial, and the jury did hear this evidence, that he opposed them when it was happening, that he didn't know that was going to happen, but
the other two guys knew that. Actually the jury didn't know that. The jury only knew that he freaked out when the shooting started. It wasn't until years later when I got involved in the case
that we found these police reports that had never been provided to the defense, where the driver had told the police,
"We knew all along that they were going to shoot people, but we didn't tell Buford because he wouldn't have gone if he had known that, and when we got in the
car afterwards he was screaming at these guys and he was furious." That never came out at trial. There was also a lot of other stuff in the police reports that had never been provided to
the defense lawyers. Buford's jury voted twelve to zero against the death penalty for him.Florida was one of only three states in the country where you can get a death sentence anyway, even if
the jury votes for a life sentence. And in his case, it was twelve to zero, every single juror voted for life for him, But this judge who was famous for going against the jury when they voted
for life. He had done it in five cases, where the jury had voted for life sentences and he had just gone ahead and given them death anyway. And it went up on appeal, and now he would not
have been able to get the death sentence under current Florida law. So, that was the same kind of thing where it was too little, too late. They executed Buford. I was with his sisters until
right up to the execution. I was on the phone with Buford, virtually right up to the execution.
James Lohman is an attorney who has represented clients sentenced to death in Texas, Florida, Louisiana, and Arkansas. In Video 1, Mr. Lohman explains how he got involved in capital defense work in Florida after his childhood in New York and talks about some of his specific cases, highlighting problems he sees in the entire death penalty system. In Video 2, he describes in detail several more cases he has worked on in Florida and Texas, including Ted Bundy and Jesse Tafero. This interview took place in Austin, Travis County, Texas on February 24, 2009.
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James LohmanRole: Narrator
Texas After Violence ProjectRole: Collaborator
Sabina Hinz-FoleyRole: Interviewer
Mark EvansRole: Videographer
Nancy Semin-LingoRole: Transcriber
Kimberly Ambrosini-BaconRole: Proofreader
North America--United States--Texas
North America--United States--Texas--Austin
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