August 2010 issue
“My first death penalty case was back in 1990. My client was the first person in South Carolina to be executed by lethal injection, after the demise of the use of electric chair. Oddly enough, I spent the last few hours with him in his cell. They put a TV nearby and let you watch anything you want, and they let you call anywhere in the world. We watched John Wayne war movies and he spoke to his young relatives asking them not to follow his path. We ate popcorn shrimp from Bojangles’ until his time was up. His name was Michael Elkins.” – Dudley Bradstreet Ruffalo
282 people have been executed by the state of South Carolina since 1912. Just two of the dead are women. Sadly the count includes a 14 year old boy. An additional 54 sit on Death Row in South Carolina today.
234 of the 282 executions occurred prior to 1960.
A federal moratorium on executions was enacted in 1962, even though state statutes remained in effect. According to the South Carolina Department of Corrections, for a number of years, South Carolina’s death penalty statute was “fairly typical” and “provided for the ultimate penalty for a number of crimes including, but not limited to, murder, rape and kidnapping.” The statute predicated that the death penalty may be imposed in “those situations where the jury made a final finding of guilt without an affirmative recommendation of mercy.”
In 1972, the US Supreme Court declared that most death penalty statutes, including South Carolina’s was unconstitutional. So, South Carolina changed the statute. But then in 1976, the Supreme Court ruled that while the death penalty was not unconstitutional, “each case should be considered upon its merit,” but the 8th amendment (cruel and unusual punishment) could not be violated.
By the time this all shook out in 1976, the court reasoned that if the prosecution wanted to pursue the death penalty, a number of things must happen. First, there would be a two-phase hearing – part one would determine guilt or innocence. And in the case of a guilty verdict a second phase specific to sentencing would commence. The sentencing phase allows for mitigating circumstances to be entered into record. Next, the death penalty can be sought in murder cases, but only if the murder was accompanied by one or more aggravating circumstances (rape, torture, kidnapping). Finally, the defendant is appointed two attorneys and has a mandatory appeal process (to make sure the law was applied correctly).
Interestingly, it is extremely rare for a person facing the death penalty to pull out the yellow pages and start calling lawyers. The cost to defend a death penalty case runs in the hundreds of thousands of dollars. Thus, once the prosecutor decides he is going for the death penalty (the prosecutor alone makes that call), a judge is assigned to the case, and that judge immediately begins to seek counsel and co-counsel for the defendant.
It seems odd, but the judge truly picks up the phone and starts calling the best criminal defense attorneys in the county where the crime was committed. In Beaufort County that means one of three guys is getting the call.
Enter the realist, the historian, the humanist. Three men who march into a courtroom and defend the rights of someone accused of a heinous crime. Why?
The realist
Sam Bauer is rather matter of fact. He has been involved in four death penalty cases (and an additional 25 homicide cases). “No one takes these cases,” he says. “But,” he continued, “When the court puts that much faith in you … you step up.”
Bauer was put in the criminal defense chair right out of college. Literally. He graduated and was waiting for his new job to start, when a family friend called. That “friend” was the federal circuit court judge in Mobile, Alabama. He invited Bauer to “come watch.” And before he knew it, Bauer was appointed as the defense attorney. “I knew the second I walked into that courtroom that this was what I wanted to do.”
The perception of a defense attorney can be quite negative. And you have to ask (and I did), how they do it. For Bauer, he knows that his role is to protect his client, to make sure that the evidence is trustworthy and value, to afford his client the right to a fair trial, to ensure that the government is not corrupt, and most importantly than an innocent person is not convicted and sentenced to death. It’s a matter of fact.
The historian
Dudley Bradstreet Ruffalo comes from generations of attorneys however his interest in law goes back much further. As a student of ancient history, he offers interesting perspective on crime and punishment.
Ruffalo can roll back the clock and cite historical references dating back to the Ancient World and Hammurabi’s Code – the ol’ eye for an eye, tooth for a tooth theory, to the Roman Empire, the Middle Ages, modern European times, and finally the United States legal system.
I’d peg Ruffalo as a “social historian” – his evaluation of the complex systems of rules, over centuries, all boil down to the effect on society. And he studies the historical elements, for better understanding of the role he plays today.
SIDEBAR: Did you know that when you raise your hand in a court of law and swear to tell the truth, the whole truth, and nothing but the truth, that is actually a throw-back to a practice that started in Roman times and continued into the Middles Ages? Back when, if you committed a crime, that crime was branded on the palm of your hand?
Yes, this means that Hester Prynne actually got off easy when they simply sewed the scarlet letter on her frock.
If your hand was marked, you were a felon and your testimony would not be taken.
Ruffalo has participated in eight death penalty cases - four for the defense and four as the prosecutor.
He’s seen both sides of the courtroom and admits that he questions the merit of the death penalty all the time, mainly because he says, “What scares me most is that innocent people have been convicted.”
In fact, Ruffalo introduced me to the Innocence Project, a non-profit organization dedicated to exonerating the innocent. Shockingly, there have been 255 post-conviction DNA exonerations in United States history. Seventeen people have been proven innocent and exonerated by DNA testing in the United States after serving time on death row. They were convicted in 11 states and served a combined 209 years in prison – including 187 years on death row – for crimes they didn’t commit.
I’d say that is certainly enough evidence to warrant taking your job seriously and Ruffalo does.
He’s been the prosecutor, served as municipal judge for Hilton Head, was director of a legal clinic, and today has his own practice as a criminal defense attorney. It’s safe to say Ruffalo has seen it all, and yet he keeps coming back for more.
The humanist
“They all have a story to tell and need someone to listen,” says attorney Donald Colongeli, who struck me as a man with intense passion for what he does. It is clear the moment you start talking to him that he shoots from the hip and tells it like it is. It is even more evident that he uses that approach to build a rapport with his clients.
Admittedly, he has to go to a pretty dark place to try to understand a client charged with murder. “I shut the door, I lay out all of the evidence, I look at gruesome pictures, I listen to the 911 tape -- all in an effort to understand,” Colongeli says. He likens his role to that of a surgeon saying, “The prognosis is not good, but I still have to give my client a fair shot. I still have nightmares about some of the things I have seen.”
Interestingly, Colongeli started law school as a staunch republican. But, as his education progressed, so did his thought process and he divulges that he became more and more liberal as time passed because of those cases where the defendant may indeed be innocent.
He does what he does because he gets, “a certain satisfaction from upholding the law of the state and the country.” It all boils down to applying the law. There is a checks and balances in the criminal justice system. And Colongeli notes that it is his job to protect the rights of his client … even if he thinks he is guilty.
“It never gets easier. I still get the shakes and vomit before a case. I’m human too… and I love it.”
A realist, a historian, a humanist -- three very different men with very different backgrounds, personalities, and passions.
Men who aren’t saying they don’t believe in the death penalty, but do believe that no innocent man should lose his life.
And, based on the statistics, we should all share that worry.
Writer’s Note: This year I have penned a story about Beaufort County Sheriff PJ Tanner, Beaufort County Sheriff’s Investigator Bob Bromage, and the County Crime Lab. Each of those stories, interviews, and experiences weighed heavily in my mind as I tackled this topic. I’d received such a complete education on the prosecution and investigative side of things that I felt like my mind was partially closed when it came to the defendant. However, I have to give credit to Sam, Dudley, and Don; they opened and may have actually changed my conservative mind.
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