The Rich Don't Live On Death Row

SAN FRANCISCO - It's a good bet that if O.J. Simpson and Erik and Lyle Menendez are convicted, they will not be on death row. The reason: It's not a place for the rich.

In California, all 384 men and four women awaiting execution as of July 1 were poor enough to qualify for a lawyer at state expense.

Nationwide, no one seems to have made a systematic study of the finances of the executed, or of the 2,700 condemned prisoners. But veteran practitioners and scholars agreed they'd never heard of a wealthy person on death row.

"I don't know of any affluent people who have been sentenced to death," said Walter Berns, a scholar at the American Enterprise Institute in Washington, D.C., and author of the book "For Capital Punishment."

It's not that wealthy people haven't faced capital charges. Here are two:

-- Richard Loeb and Nathan Leopold were convicted of murdering a young boy but were spared the death penalty in 1924 after an epic defense by Clarence Darrow.

-- Texas oilman T. Cullen Davis was charged with seriously wounding his estranged wife, Priscilla, and murdering her lover and her daughter in 1976. Although his wife and two others identified Davis as the gunman, he was acquitted after his defense attacked Mrs. Davis for her drug use and extramarital affairs.

"Brain surgery" on the poor

Defense attorneys say the difference comes down to money. Defendants like Simpson and the Menendez brothers can afford quality

lawyers.

Those who can't often end up with less than desirable counsel. Stephen Bright, director of the Southern Center for Human Rights in Atlanta, said "trying capital cases is the legal equivalent of brain surgery." In the South, he said, court-appointed death-penalty lawyers are paid barely enough to cover costs, are usually inexperienced and often don't put up much of a fight.

"I see cases tried with no experts for the defense, no investigator at all, and seldom one who knows how to investigate the life and background of the defendant," said Bright, a defense lawyer in capital cases for 15 years.

One Georgia case he described in a Yale Law Journal article was a striking contrast to the battles over evidence in the Simpson case. Gary X. Nelson, sentenced to death in the 1978 rape and murder of a 6-year-old girl, was represented by a lawyer who had never tried a capital case, was paid $15 to $20 an hour and had no investigator or experts. His closing argument was 255 words long.

Later, new lawyers, at their own expense, found that crucial prosecution evidence, a hair on the victim's body, could not be validly compared to Nelson's hair - a fact mentioned in an FBI report that had never been disclosed. Nelson was freed after 11 years on death row.

Rich aren't violent type?

Not all legal professionals feel its a problem with income bias. California Deputy Attorney General Dane Gillette, death-penalty coordinator in San Francisco, argues defense lawyers in that state exaggerate the extent of ineffective representation in death cases.

Probably the chief reason rich people aren't sentenced to die, he said, is that "they, for the most part, don't commit these kinds of violent crimes."

Maybe so. Capital crimes are mostly street crimes - a killing during a robbery or burglary. But some defense lawyers say they've seen wealthy defendants spared despite evidence that would doom a poor person.

Bryan Stevenson, a lawyer with the Alabama Capital Representation Resource Center for 10 years, recalled two wealthy sisters charged with killing one sister's spouse. The prosecutor, who sought the death penalty in other cases, asked only for life imprisonment despite considerable evidence, he said.

"Much of their (district attorneys') support comes from affluent members of the community who want someone who will protect them from the criminal element," he said. "People with no redeeming features, those whose lives have no purpose or meaning, it's easier for us to say, `Let's kill 'em.' "

Bright said that "unlike most of my clients, whose IQs are in the high 60s or low 70s, you're talking about people (rich defendants) who have their lives together, who have the ability to make money.

"You would think those would be the cold, calculated murders most fit for the death penalty. But the death penalty is for poor people."